IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD BEACHAM, )

)

Plaintiff, )

)

v. ) No. 11 C 7936

)

AEROTEK, INC., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Oshkosh Specialty Vehicles, Inc. (“Oshkosh”) has filed its

Answer and Defenses (“ADs”) to the race discrimination Complaint

brought against it by Richard Beacham (“Beacham”). This sua

sponte memorandum opinion and order is triggered by a repeatedly

occurring problematic aspect of that responsive pleading.

Many of the Answer’s responses (Answer ¶¶6, 7, 16-21, 23,

24, 27-38 and 42) follow an invocation of the disclaimer of some

of Beacham’s allegations--a disclaimer that tracks the language

of Fed. R. Civ. P. (“Rule”) 8(b)(5)--by stating that Oshkosh

“therefore denies same.” That is of course oxymoronic--how can a

party that asserts (presumably in good faith) that it lacks even

enough information to form a belief as to the truth of an

allegation then proceed to deny it in accordance with Rule 11(b)? 

Accordingly the quoted phrase is stricken from each of those

paragraphs of the Answer.

For years this Court has been patient with lawyers who

obviously know Rule 8(b)(5) and employ its terms accurately but

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who then impermissibly go on in the manner that has been

described here --it has been a full decade since this Court 1

issued and published the Appendix in State Farm Mut. Auto. Ins.

Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001) that included

the same failing as one of the repeated errors by defense counsel

that it has encountered over the years. But even though the sin

thus committed may be venial, forgiveness does not necessarily

follow. Enough is enough--because it would appear that the

purported denial cannot have been advanced in the objective good

faith demanded by Rule 11(b), Oshkosh’s counsel is ordered to

show cause on or before January 30, 2012 (1) why the filing has

not violated that Rule and (2) why, if so, no sanction should be

imposed (see Rule 11(c)(3) and (4)).

To turn to Oshkosh’s ADs, two of them call for brief

comments. Although what is said here is not intended to be

exhaustive, so that Beacham’s counsel is free to raise any other

asserted problems, ADs 1 and 5 bear specific mention:

1. AD 1 is not truly an affirmative defense, for

Oshkosh’s Answer ¶3 had already denied its employment of

Beacham for Title VII purposes--in that respect, see App’x

¶5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D.

276, 279 (N.D. Ill. 2001). Accordingly AD 1 is stricken

 By chance, today’s filings in this Court’s chambers 1

include one by another lawyer who has committed the same offense.

2

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(having put the matter in issue, Oshkosh suffers no loss

thereby).

2. AD 5, which asserts Oshkosh’s right of

indemnification by codefendant Aerotek, Inc., is not of

course a defense to Beacham’s claim against it. That AD is

also stricken.

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: January 20, 2012

3

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