IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
October 31, 2006
FE DIGITAL INVESTMENTS, LIMITED, PLAINTIFF,
LYRIC HUGHES HALE, DEFENDANT.
The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
Lyric Hughes Hale ("Hale") has filed her Answer and Affirmative Defenses ("ADs") to the Amended Complaint brought against her by FE Digital Investments, Limited ("FE"). This memorandum order is issued sua sponte because of some problematic aspects of that responsive pleading.
To begin with, although Hale's counsel is properly faithful to the form of disclaimer prescribed by the second sentence of Fed. R. Civ. P. ("Rule")8(b) to allow a defendant to get the benefit of a deemed denial, in each instance she then goes on to say "and, therefore, denies the same" (Answer ¶¶ 1, 3, 14 and 29). That of course is an oxymoron: If a party really lacks enough information even to form a belief as to the truth of an allegation, by definition the party is not in a position to deny that allegation in the objective good faith required by Rule 11. Accordingly the above-quoted phrase is stricken from each paragraph where it appears.
Both of Hale's ADs are also problematic. Here are their respective flaws:
1. AD 1 is really a repackaged Rule 12(b)(6) motion. As such it is improper--and even if it were in order as a technical matter, it is substantively wrong. It is stricken.
2. AD 2 simply parrots two of the available grounds under Rule 8(c): estoppel and waiver. That locution is unacceptable even under the generous notice pleading standards that prevail in the federal court system--see App.
¶5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001). If Hale is really serious about either or both of those ADs, she must state enough to apprise FE's counsel and this Court of the grounds for such contentions. In the meantime, AD 2 is also stricken, albeit without prejudice to either or both of those grounds being reasserted in a suitably fleshed-out manner.
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