Opinion
Case No. 15 C 6184
10-15-2015
ELIZABETH ROSCH, Plaintiff, v. J.P. MORGAN CHASE BANK, N.A., Defendant.
MEMORANDUM ORDER
Counsel for plaintiff Elizabeth Rosch ("Rosch") has just filed a document captioned "Plaintiff's Responses to Affirmative Defenses." Because there are two things that are basically wrong with that filing, this memorandum is issued sua sponte to address them.
To begin with, Rosch's Complaint was brought individually (something made clear both by the text of the Complaint and by its prayer for relief, which speaks specifically of "Elizabeth Rosch, individually," even though a later paragraph within the prayer for relief reads "Give leave to add additional plaintiffs by motion, the filing of written consent forms, or any other method approved by the Court"). Accordingly the case caption in the new filing, which speaks of Rosch "on behalf of herself and all other similarly situated Plaintiffs" is mistaken and should ordinarily be stricken.
That, however, proves to be unnecessary because of the other problem with Rosch's current filing. Fed. R. Civ. P. ("Rule") 7(a) identifies the only pleadings allowed in federal practice, and none of those allowed pleadings is a response to defendant's affirmative defenses ("ADs"). As the only possible open-ended exception, Rule 7(a)(7) permits a reply to an answer (which could encompass a response to an AD), but only if the court orders one (as this Court has not done).
To be sure, this Court has on occasion issued sua sponte memorandum orders as to questionable ADs, and such criticism could well be leveled against defendant J.P. Morgan Chase Bank's first three ADs (each of which contains a telltale "to the extent . . ." locution that is the tipoff to a speculative possibility rather than a currently assertable AD). But the simplest way to deal with the current unpermitted filing is to strike it pursuant to Rule 12(f)(1), and this Court does so.
/s/_________
Milton I. Shadur
Senior United States District Judge
Date: October 15, 2015