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Kelvin L. King v. Syx Distribution

August 18, 2011


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


SYX Distribution, Inc. and TigerDirect, Inc. have filed an understandably lengthy (37 pages)--but for the reasons set out here, overly lengthy--Answer and Affirmative Defenses ("ADs") to the multicount employment discrimination Complaint brought against them by Kelvin King ("King"). This memorandum opinion and order is issued because a number of problematic aspects of that responsive pleading require defense counsel to return to the drawing board.

To begin with, a group of the Answer's paragraphs (Answer ¶¶6, 16, 21.c, 21.k, 21.m, 31 and 53*fn1 ) follow appropriately- stated disclaimers that track the language of Fed. R. Civ. P. ("Rule") 8(b)(5) with the impermissible statement "and, therefore, deny those allegations" or the like. That is of course oxymoronic--how can a party that asserts (presumably in good faith) that it lacks even enough information to form a belief as to the truth of an allegation then proceed to deny it in accordance with Rule 11(b)? Accordingly the quoted phrase is stricken wherever it appears in the Answer.

Next, defense counsel persistently insert an attempted hedge (see, e.g., Answer ¶¶5, 7, 8, 21.b, 21.l, 23, 29, 31, 39, 46, 66, 68 and 69) by concluding a response with this language or its equivalent:

To the extent Paragraph No. -- contains or implies any additional allegations, Defendants deny them.

That effort is totally uninformative--it puts the reader to the test of figuring out just what it is that defense counsel have in their heads in that regard, even though it is of course fundamental that the federal concept of notice pleading applies to defendants as well as to plaintiffs. Hence all such language is stricken wherever it appears, although defense counsel are of course free to specify just what among King's allegations is being denied.

That same type of hedging effort appears elsewhere in the responsive pleading and should be eliminated the next time around. For example, Complaint ¶31 (which reads "All conditions precedent to Count I have been satisfied") is purportedly met by this nonsensical response:

The phrases "[a]ll conditions precedent" and "have been satisfied" are vague and ambiguous, and, therefore, subject to multiple interpretations.

Quite to the contrary, King's allegation is in common usage, and any lawyer ought to know just what is meant. In addition, the just-quoted assertion is followed by a denial that King has an actionable claim and is entitled to any relief--both of those matters being totally non-responsive to King's allegation. Answer ¶31 is therefore stricken in its entirety. If defendants claim that some condition precedent has not been satisfied, defendants must identify that defect--but if not, Answer ¶31 should be a simple admission.

Again without any effort on this Court's part to be exhaustive, it notes that Answer ¶42 is a non sequitur when placed alongside Complaint ¶42. Although defendants are free to deny that they engaged in the charged discrimination, what is said in Answer ¶42 is really non-responsive to Complaint ¶42.

As said earlier, there may well be other matters that this Court has failed to pick up in its preliminary screening, but that defense counsel should address in their expected careful run-through. Meanwhile this opinion turns to defendants' ADs, some of which also require reworking in light of the fundamental principles that govern ADs under Rule 8(c) and the caselaw applying it (see also App'x ¶5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001)):

1. AD 1 adds nothing to the mix, for its invocation of the 300-day rule is totally in sync with the November 2008 starting point set out in Complaint ¶21. Thus defendants' time-bar claim is inappropriate, and AD 1 is stricken.

2. AD 2 inappropriately seeks to cabin King's claims of discrimination by asserting that his Charges of Discrimination as lodged with EEOC did not contain a number of the specific matters now set out in the Complaint. But that ignores the nature of those Charges of Discrimination, which followed the assertion as to the presence of discrimination in generic terms by then stating "The discriminatory and harassing conduct by Respondent includes, however, is not limited to, the following" or equivalent language in other places. King's pleading need not match the Charges item by item, and AD 2 is also stricken.

3. AD 3 asserts defendants' entitlement to a setoff for plaintiff's unemployment compensation benefits and for any amounts received from "any other collateral sources." This Court expresses no ultimate view on that subject, but defense counsel should promptly supplement that AD by separately providing King's counsel and this Court with ...

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