IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

SOURCEBOOKS, INC.,

Plaintiff,

v.! ! ! ! ! ! CIVIL ACTION NO. 1:11-CV-07738

! ! ! ! ! ! The Honorable Amy J. St. Eve

ANITA CLENNEY,

Defendant and Third-Party Plaintiff,

v.

REED SMITH LLP and

DAVIS WRIGHT TREMAINE LLP,

Third-Party Defendants.

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR LEAVE

TO AMEND ANSWER

FACTS

On November 22, 2011, Defendant Anita Clenney (“Clenney”) filed her 

answer in response to the complaint filed by Plaintiff Sourcebooks, Inc. 

(“Sourcebooks”) on October 31, 2011. As part of her answer, Clenney asserted 

several affirmative defenses, including the following:

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SECOND DEFENSE

The complaint fails to state a claim upon which relief may be 

granted.

THIRD DEFENSE

Sourcebooks’ claim for relief is barred because Sourcebooks 

has unclean hands.

***

FIFTH DEFENSE

Sourcebooks’ claims are barred by the doctrines of waiver 

and estoppel. 

***

SEVENTH DEFENSE

Clenney incorporates by reference hereto any and all 

affirmative defenses generally recognized as applicable to actions 

of this type, including, but not limited to, the fellow-servant rule, 

contributory negligence, comparative negligence, assumption of 

risk, res judicata, collateral estoppel, those defenses set forth at Fed. 

R. Civ. P. 8(c), and any other affirmative defense known under 

existing law, rule, regulation, or statute, or which may become 

recognized in the future by courts or promulgated by rule or 

regulation or otherwise enacted into law.1

On December 13, 2011, Sourcebooks filed its combined motion to strike 

some of Clenney’s affirmative defenses and dismiss her counterclaims.2 In 

2

1 Document # 11 at 7-8.

2 Document # 19.

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support of its motion to strike, Sourcebooks alleged that Clenney’s second, third, 

fifth, and seventh affirmative defenses were pled insufficiently and did not allege 

facts sufficient to put Sourcebooks on notice of the basis for those defenses.3

Sourcebooks also alleged that the second defense was improperly alleged in an 

answer (as opposed to a separate motion) and that the seventh defense was 

overbroad.4

In order to remove any doubt about the basis for her affirmative defenses 

and the adequacy of the facts supporting them, Clenney seeks leave from the 

Court to amend her answer, specifically her affirmative defenses, and thereby 

moot Sourcebooks’ motion to strike.

STANDARD OF REVIEW

Fed. R. Civ. P. 15(a)(2) provides that, for amendments other than those 

made under Rule 15(a)(1), “a party may amend its pleading with the opposing 

party’s written consent or the court’s leave. The court should freely give leave 

when justice so requires.”

The Seventh Circuit, in Heller Financial, Inc. v. Midwhey Powder Co.5, noted 

the absence of any prejudice inuring to the party whose affirmative defenses had 

3

3 Id. at 3-5.

4 Id. at 3.

5 883 F.2d 1286 (7th Cir. 1989)

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been stricken, because “[d]efenses are pleadings, and as such, leave to amend is 

freely granted as justice requires.”6

More recently, the Seventh Circuit has affirmed that, “leave to amend shall 

be freely given ‘when justice so requires,’”7 but has identified circumstances 

when a district court may deny such a motion, such as if there is undue delay, 

bad faith, dilatory motive, undue prejudice to the opposing party by allowing the 

amendment, or futility of the amendment.8

ARGUMENT

Clenney’s motion is consistent with Rule 15’s requirements, and is not 

filed for any improper purpose. 

Here, none of the reasons cited by the Court of Appeals in Sound of Music

as supporting the denial of a motion for leave to amend applies. First, there is no 

undue delay, as Clenney files this motion contemporaneously with her response 

to Sourcebooks’ motion to strike. Second, there is no bad faith on Clenney’s part, 

as she seeks leave to amend her answer to correct deficiencies with certain 

affirmative defenses that have been alleged by Sourcebooks. 

4

6 Id. at 1294. 

7 Sound of Music Co. v. Minnesota Min. & Mfg. Co., 477 F.3d 910, 922-23 

(7th Cir.) (quoting Park v. City of Chi., 297 F.3d 606, 612 ((7th Cir. 2002)).

8 Id.

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Third, Clenney does not seek to delay the proceedings through this 

motion. Fourth, there is no prejudice to Sourcebooks if the Court allows the 

amendment, as Sourcebooks is already on notice of the substance of Clenney’s 

defenses. Finally, the proposed amended answer is not futile as its responds to 

and corrects deficiencies in some of Clenney’s affirmative defenses that have 

been alleged by Sourcebooks in its motion.

CONCLUSION

As explained above, Clenney’s motion is timely, necessary, and 

appropriate. Accordingly, the Court should grant the motion, consistent with the 

spirit and letter of Rule 15 and Seventh Circuit precedent. 

WHEREFORE, Defendant Anita Clenney prays that this Honorable Court 

grant her motion for leave to amend her answer, and grant any other relief the 

Court deems just and proper.

!!!!!!!!! ANITA CLENNEY

! ! ! ! ! ! ! ! ! By Counsel

5

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Adam M. Salzman! ! !

Adam M. Salzman (ARDC 6287280)

The Salzman Law Office

1111 South Boulevard

Oak Park, IL 60302

(708) 320-9888

Jeffrey V. Mehalic (Admitted pro hac vice)

Law Offices of Jeffrey V. Mehalic

2011 Quarrier Street

P. O. Box 11133

Charleston, WV 25339-1133

(304) 346-3462

Counsel for Defendant Anita Clenney

6

Case: 1:11-cv-07738 Document #: 24 Filed: 01/06/12 Page 6 of 7 PageID #:162
IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

SOURCEBOOKS, INC.,

Plaintiff,

v.! ! ! ! ! ! CIVIL ACTION NO. 1:11-CV-07738

! ! ! ! ! ! The Honorable Amy J. St. Eve

ANITA CLENNEY,

Defendant and Third-Party Plaintiff,

v.

REED SMITH LLP and

DAVIS WRIGHT TREMAINE LLP,

Third-Party Defendants.

CERTIFICATE OF SERVICE

I, Jeffrey V. Mehalic, hereby certify that on the 6th day of January, 2012, I 

electronically filed the foregoing with the Clerk of this Court using the CM/ECF 

system which will send notification of such filing to the following: 

Douglas A. Albritton, Esquire

Peter M. Stasiewicz, Esquire

Reed Smith LLP

10 South Wacker Drive, 40th Floor

Chicago, IL 60606-7507

!!!!!!! /s/ Jeffrey V. Mehalic! ! ! 

! ! ! ! ! ! ! Jeffrey V. Mehalic (Admitted pro hac vice)

7

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