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Smilie v. Comcast Corp.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


September 10, 2007

DONALD SMILIE, ETC., PLAINTIFF,
v.
COMCAST CORPORATION, ETC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM ORDER

Streamline Communications, Inc. ("Streamline") has filed its Answer and Affirmative Defenses ("ADs") to the Fair Labor Standards Act action brought against it and other corporate defendants by Donald Smilie ("Smilie"). This memorandum order is issued sua sponte because Streamline's counsel has not conformed to some fundamental principles of federal pleading.

First, despite the clarity of the second sentence of Fed. R. Civ. P. ("Rule") 8(b) as to the precise content of the disclaimer required to obtain the benefit of a deemed denial (see App. ¶1 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001)), counsel has inexplicably--and impermissibly--departed from that language in a manner that amounts to a substantive change (see Answer ¶¶2, 4, 6, 11 and 12 and Answer Count I ¶14 and Count II ¶13). All of those disclaimers must be rewritten.*fn1 That correction must be made on or before September 21, 2007, failing which all of the corresponding allegations of Smilie's Complaint will be deemed to have been admitted.

As for ADs 1 and 2, they are stricken as surplusage in light of Streamline's earlier-stated denials in Answer ¶¶5 and 6 "that Donald Smilie was an employee and/or had any other employee relationship with Streamline." Even though the substantive nature of ADs 1 and 2 does conform to the requirements of Rule 8(c)(see App. ¶5 to State Farm), Streamline's resort to a belt-and-suspenders approach--stating the same thing twice--is totally unnecessary.


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