Opinion
No. 04 C 4059.
August 23, 2004
MEMORANDUM ORDER AND OPINION
After this Court's August 5, 2004 grant of the motion filed by Plunkett Furniture Company ("Plunkett") to dismiss Kelly Lynn Thomas as a co-plaintiff in this action, Plunkett's counsel has filed its Answer to the provisions of the Amended Complaint ("AC") relating to the remaining plaintiff Marisol Fregoso ("Fregoso"). This memorandum order is issued sua sponte because some problems in that responsive pleading require correction.
Mention should first be made of one unacceptable (and regrettably common) usage that pervades Plunkett's Answer. Although Plunkett's counsel has properly followed the road map that is marked out by the second sentence of Fed.R.Civ.P. ("Rule") 8(b) to obtain the benefit of a deemed disclaimer, counsel follows most of those statements of Plunkett's lack of information or knowledge sufficient to form a belief as to the truth of Fregoso's allegations (Answer ¶¶ 1, 3, 4, 5, 7, 10, 11 and 23) with a denial of the selfsame allegations. That of course is a classic oxymoron. Accordingly, each of those purported denials is stricken.
More substantively, every one of Plunkett's set of affirmative defenses ("ADs"), advanced under Rule 8(c), is problematic or worse. Here are the flaws:
1. AD 1, which is the essential equivalent of a Rule 12(b)(6) motion, seems quite wrong. Because Fregoso's allegations must be accepted as gospel for such purposes, it would appear that she is entitled to stay in court. If however Plunkett sees some specific problem in that respect, it must file an appropriate motion.
2. AD 2 is most troublesome, because it asserts lack of jurisdiction, an issue that must be addressed at the outset. Any such conclusory assertion cannot be left as it is — if Plunkett's counsel really sees some jurisdictional defect, it must be identified and advanced immediately.
3. It is meaningless, for Rule 8(c) purposes, to state in AD 3 that Fregoso "may have failed to exhaust administrative prerequisites." If Plunkett truly knows of some problem in that respect, it too must be fronted promptly.
4. ADs 4, 5 and 7, which repeat the labels of defenses available under Rule 8(c) without any explanation at all, do not pass muster even under the generous notice pleading regime in force in the federal system. All of those ADs are stricken, albeit without prejudice to their possible reassertion in some meaningful fashion.
5. AD 6 is nonsensical, for it says that the AC "improperly joins parties" in a case in which only one plaintiff and one defendant remain. It is stricken with prejudice.