IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
September 11, 2006
DANIEL WHITING, PLAINTIFF,
HARLEY-DAVIDSON FINANCIAL SERVICES, DEFENDANT.
The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
Harley-Davidson Financial Services ("Harley-Davidson") has filed its Answer, including affirmative defenses ("ADs"), to the Complaint brought against it by Daniel Whiting ("Whiting") asserting violation of the Fair Credit Reporting Act. This memorandum order is issued sua sponte to address two flaws in that responsive pleading.
First, Harley-Davidson's counsel, unlike a good many lawyers, is faithful to the disclaimer language that is set out in Fed. R. Civ. P. ("Rule") 8(b)'s second sentence as the condition for getting the benefit of a deemed denial of allegations in a complaint. But then having done so, Harley-Davidson's counsel impermissibly follows that disclaimer with an assertion that the client "thus denies" those allegations by Whiting (Answer ¶¶4, 7-11, 16 and 19-21). Even a moment's thought reveals that such a denial is oxymoronic--how can anyone deny in good faith something that it has just described itself as lacking information sufficient even to form a belief as to the truth of the selfsame allegation? Accordingly the phrase "and thus denies them" is stricken from each of those paragraphs of the Answer.
In addition, the pleading reveals a basic misunderstanding of the concept of ADs--see App. ¶5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001). Hence all of the responsive pleading contained under the rubric of "Affirmative Defenses" (including the two ADs themselves) is also stricken.
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