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Juan Miguel Lopez v. Kennedy Fish & Chicken

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


April 18, 2011

JUAN MIGUEL LOPEZ, PLAINTIFF,
v.
KENNEDY FISH & CHICKEN, ET AL., DEFENDANTS.

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

MEMORANDUM ORDER

At the previously-scheduled April 14, 2011 status date for the anticipated entry of a default judgment in this action (defendants had not appeared and the time for responsive pleading had run at the time that date was set--see n.1), Jason Sager, Esq. appeared for defendants and presented a motion to vacate default judgment*fn1 and for leave to file counsel's appearance and an Answer to the Complaint instanter. This Court granted that motion orally, and this memorandum order is occasioned by a problematic aspect of that responsive pleading--the affirmative defenses ("ADs") that follow the Answer itself.

AD 1 violates the basic concept that is embodied in Fed. R. Civ. P. ("Rule") 8(c) and the caselaw applying that Rule--see App'x ¶5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001). Because it impermissibly contradicts allegations in the Complaint, which must be accepted as true for AD purposes, it is stricken.*fn2

ADs 2 and 3 pose other problems. Notice pleading concepts that underlie the Rules are applicable to plaintiffs and defendants alike, and neither of the ADs is sufficiently fleshed out to inform plaintiff and his counsel (and, not incidentally, this Court) of just what defendants are trying to assert. Accordingly ADs 2 and 3 are stricken, but with leave granted to file fleshed-out versions of those assertions on or before April 29, 2011.


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