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Trustees of the Automobile Mechanics Local No. 701 Pension and Welfare Funds v. Union Bank of California

December 2, 2009

TRUSTEES OF THE AUTOMOBILE MECHANICS LOCAL NO. 701 PENSION AND WELFARE FUNDS, PLAINTIFF,
v.
UNION BANK OF CALIFORNIA, N.A., DEFENDANT.



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

MEMORANDUM ORDER

Marquette & Associates, Inc. ("Marquette") has filed its Answers, including affirmative defenses ("ADs"), to the Amended First-Party Complaint ("First AC") and the Amended Fourth-Party Complaint ("Fourth AC") in this action. Because those responsive pleadings contain a number of flaws, this memorandum order is issued sua sponte to address them.

Answer to First AC

Marquette's counsel begins its response by 51 repetitions of this language:

Marquette makes no answer to the allegations contained within paragraph -- of Plaintiff's Amended Complaint, because they are not directed to this defendant. To the extent any allegation contained therein is deemed to be directed to this defendant, it is denied.*fn1 But that usage ignores the fact that when the First AC does begin to target Marquette, First AC ¶52 incorporates all of the First AC's prior allegations, so that Marquette's earlier blanket denials are really inappropriate. Instead Fed. R. Civ. P. ("Rule") 8(b)(1)(B) calls for close scrutiny and substantive responses by Marquette's counsel.

Next, though Marquette's counsel comply faithfully with the disclaimer called for by Rule 8(b)(5) as the basis for a deemed denial of the allegations in First AC ¶3 (so that counsel clearly know the proper drill), Answer ¶¶54 and 64 then inexplicably depart from the required formulation. Those paragraphs are stricken.

Next, Answer ¶¶56, 57 and 58 provide no answer "to the extent" that the corresponding paragraphs in the First AC "call for a legal conclusion." Even apart from the fact that legal conclusions are entirely proper components of a complaint (see App'x ¶2 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001)), thus calling for a response under Rule 8(b)(1)(B), "to the extent" is a telltale tipoff that Marquette has failed to comply with the notice pleading requirements that the federal system imposes on defendants as well as plaintiffs. Hence those paragraphs of the Answer are stricken as well.

That same lack of compliance with the notice pleading requirement marks Answer ¶70, where Marquette denies any allegation in the corresponding First AC paragraph "that is inconsistent therewith" (speaking of its earlier statements in that same paragraph). Marquette cannot reasonably expect its adversaries or this Court to guess at what it views to be inconsistencies. That paragraph of the Answer is also stricken, but with leave granted to particularize any claimed inconsistency the next time around.

As for Marquette's ADs, AD 1 seems to come out of left field. It advances a contributory-fault approach that appears to draw upon state tort law (735 ILCS 5/2-1116(c)), even though Marquette expressly admits that this Court's jurisdiction is based on ERISA and, in its answer to Fourth AC ¶1, "denies that this Court has jurisdiction over any state law claims, because they are preempted by ERISA, and because the state law claims have been dismissed." Hence AD 1 is dismissed--and unless Marquette's counsel come forward with some legal basis for its reassertion, such dismissal will be with prejudice.

Answer to Fourth AC

Just as was the case as to a portion of Marquette's other answer, Answer ¶¶3, 7 and 17 fail to conform to the Rule 8(b)(5) disclaimer requirements. Those paragraphs are stricken.

Because Marquette's counsel have again repeated the already-described errors relating to "legal conclusions," Answer ¶¶5, 6 and 7 require reworking. They too are stricken.

Next, Answer ¶¶24 and 30 again improperly call on Marquette's adversaries and this Court to guess as to what Marquette's counsel might view as "inconsistencies." As with the other flaws spoken of in this memorandum order, those paragraphs too are stricken.

Somewhat the same problem is posed by Answer ΒΆ25, which--after failing to respond directly to the corresponding allegations in the Fourth AC--then proceeds to "den[y] all remaining allegations." Thus phrased, the response (or nonresponse) does ...


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