Opinion
No. 02 C 7256
January 7, 2003
MEMORANDUM ORDER
This is truly hard to believe. Not once but twice (first in its December 13, 2002 memorandum order and then again in its January 2, 2003 memorandum order) this Court has expressly told defense counsel that the responsive pleadings they had just filed had violated the equally express provisions of the second sentence of Fed.R.Civ.P. ("Rule") 8(b) as to the type of disclaimer that is a precondition. to obtaining the benefit of a deemed denial of a plaintiff's allegations. Not once but twice that message was accompanied by this Court's specific citation to one of its published opinions that has elaborated on that principle (even though it scarcely needs elaboration, given the clarity of Rule 8(b)). Yet defense counsel have now filed still another pleading — the Second Amended Answer ("SAA") — that repeats the identical violation in the identical paragraphs.
Enough is enough — in this instance, enough is too much. Because of the repeated violations of this Courts orders and of the crystal clear provisions of Rule 8(b), SAA ¶¶ 7, 17, 18, 19 and 26 are stricken, and defendants will be treated as having admitted the allegations of Complaint ¶¶ 7, 17, 18, 19 and 26.
In one respect, however, defense counsel has been appropriately responsive to a question raised in the January 2 memorandum order. There this Court had inquired as to the thrust of defendants' Affirmative Defense ("AD") 2. Defense counsel have now filed a supplemental brief in that respect, confirming this Court's inference that the Westmont Board of Fire and Police Commissioners ("Board") is not a legal entity, so that the proper target of plaintiff Richard Roe's allegations is really the Village of Westmont itself. Because the Village is already a party defendant, the appropriate action would appear to be the Board's dismissal as a party defendant, rather than simply leaving the matter to be raised as an AD. Accordingly A.D. 2 will remain in the SAA, but this Court will dismiss the Board from this action on January 21, 2003 unless plaintiff's counsel were to file an earlier submission in this Court's chambers (with a copy of course being transmitted to defense counsel) explaining why that should not be done.