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Charles Tipton, et al v. Chicago Automotive Group


April 11, 2012


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


Counsel for defendant Chicago Automotive Group, Inc. ("Chicago Automotive") and Mike Beydoun ("Beydoun") got off on the wrong foot when they (to quote this Court's brief March 29 memorandum order ["Order"]) "belatedly delivered to this Court's chambers a copy of their alternative motion (1) to dismiss the Complaint or (2) for a more definite statement, together with a notice of presentment of that motion on April 13 (the previously-set status hearing date)."*fn1 Because defense counsel were substantively deficient as well, because neither of their asserted grounds for the motion survived scrutiny, Chicago Automotive and Beydoun were ordered to answer the Complaint.

Now the same lawyers have filed such an Answer, together with some affirmative defenses ("ADs")--and regrettably, they have done no better. This time their pleading is stricken in its entirety, although leave is granted to file a replacement Amended Answer--and perhaps some ADs as well--on or before April 20, 2012.

To begin with, this Court's recognition that defense counsel were Michigan lawyers led it to pass over their violation of certain of the local rules en route to the Order's dealing with the substance of their motion. But having done so, this Court dropped this n.1 into the Order:

Counsel are advised, however, that from here on out they ought to familiarize themselves with this District Court's LRs.

Yet counsel's current effort failed to conform to the directive of LR 10,*fn2 an error that must be cured the next time around.

But more disturbingly, the Answer is chock-full of denials on the impermissible basis that allegations of the Complaint "call[ ] for a legal conclusion" (Answer ¶¶2, 5, 7 through 11, 13, 17 and 19-24). In that respect, see App'x ¶2 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278-79 (N.D. Ill. 2001). Given defense counsel's distorted notion of federal pleading and its notice-pleading approach, which is incumbent on defendants as well as on plaintiffs, it is nothing short of outrageous for counsel to label this lawsuit as "frivolous" and to seek the imposition of costs and attorney's fees as the price for Chicago Automotive and Beydoun having to defend the litigation.

Nor is it a fair criticism for defense counsel to criticize plaintiffs' counsel for the Complaint's collective use of "Defendants." Any objective reader of the Complaint (as defense counsel are not) would recognize the source of that usage from the explanation in Complaint ¶¶5 through 7. If Beydoun is indeed an "employer" for statutory purposes, as the Complaint alleges, he is jointly and severally liable with Chicago Automotive.

Lastly in terms of the Answer, any purported inability to answer Complaint ¶¶14 through 17 is rejected. No such quibble will be accepted on defense counsel's next return to the drawing board.

As for defense counsel's separately-stated laundry list of purported ADs, many of them are totally at odds with the fundamental concept embodied in Fed. R. Civ. P. 8(c) and the caselaw applying it--see also App'x ¶5 to State Farm. This Court will not do counsel's job for them by any detailed parsing of that laundry list. Instead all the ADs are stricken, and to the extent that Chicago Automotive and Beydoun may have any that they believe pass muster, they must be fleshed out so that plaintiffs' counsel and this Court are apprised of their nature through appropriate notice pleading.*fn3

In candor, it has been an imposition on this Court to require the writing of an order such as this one. Just what sanction is appropriate for such a botch of several basic principles of pleading? In this instance this Court has concluded that defense counsel should be required:

1. not to charge their clients for the time spent and expenses incurred in their aborted efforts at pleading up to this point;

2. to send copies of the Order and of this memorandum order to the clients, together with counsel's forwarding letter apprising the clients of the directive set out in the preceding paragraph; and

3. to send a copy of that forwarding letter to this Court's chambers--for informational purposes only, not for inclusion in the court filings.

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