United States District Court, N.D. Illinois, Eastern Division
MILTON I. SHADUR, Senior District Judge.
Collection Professionals, Inc. ("Collection Professionals") has filed its Answer and Affirmative Defenses ("ADs") to the Complaint brought against it by Sarah Love ("Love") under the auspices of the Fair Debt Collection Practices Act ("Act"). This Court has just received the reassignment of this action on the retirement of its colleague and good friend Honorable John Nordberg after his more than three decades of service to this District Court, and it has also received copies of Love's Complaint and Collection Professionals' responsive pleading from Judge Nordberg's chambers. This memorandum order is issued sua sponte to address some problematic aspects of that responsive pleading.
To begin with, Collection Professionals' counsel has joined the overly large lawyers' club that inexplicably departs from the clear roadmap prescribed by Fed.R.Civ.P. ("Rule") 8(b)(5) for those who hope to obtain a deemed denial of allegations that they can neither admit nor deny for the reasons stated in that Rule - see App'x ¶ 1 to State Farm Mut. Auto. Ins. Co. v. Riley , 199 F.R.D. 276, 278 (N.D. Ill. 2001). Just take a look at Answer ¶¶ 13, 15, 16, 29, 31-33 and 44, each of which employs this locution:
Upon reasonable inquiry, the knowledge or information known and readily available to the defendant renders it unable to admit the truth of the information contained in Paragraph -.
Conspicuously absent from that format is any reference to Collection Professionals' belief, an essential component of the disclaimer deliberately inserted by the Rule's drafters to make the disclaimer more difficult to advance in the objective good faith demanded by Rule 11(b). If defense counsel had really engaged in a "reasonable inquiry" - this time into the law as well as the facts - and had given a little thought to the subject, counsel would not have employed the impermissible quoted locution. Hence all of the cited paragraphs of the Answer are stricken.
That same lack of thought and of "reasonable inquiry" applies as well to the three ADs advanced by Collection Professionals. Here are the problems they present:
1. A.D. 1 uses the hedge "may be" or "may possess" three times - the sure signal that Collection Professionals' counsel really doesn't know whether any arbitration requirement is involved. That is not the stuff of which legitimate ADs are fashioned, and A.D. 1 is stricken (if some good faith predicate for such an A.D. becomes known in the future, it may be advanced - but must be fully fleshed out - at that time).
2. ADs 2 and 3 violate the basic principle that an A.D. must accept a plaintiff's allegations as gospel while at the same time stating a ground for the pleader's escape from liability - see, e.g., App'x ¶ 5 to State Farm and the multitude of cases construing and applying Rule 8(c) in like fashion.
Those ADs are also stricken.
Although this Court might well strike the entire responsive pleading to obviate the need for it or any other reader to flip back and forth between two separate pleadings to see just what is or is not at issue, it will instead require Collection Professionals' counsel to cure the errors dealt with in this memorandum order by filing an appropriate amendment to the responsive pleading on or before May 9, 2014. No charge may be made to Collection Professionals by its counsel for the added work and expense incurred in correcting counsel's errors. Collection Professionals' counsel is ...