IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LURADEAN YOUNG-SMITH, )

)

Plaintiff, )

)

v. ) No. 12 C 2028

)

RECOVERY MANAGEMENT SERVICES, )

INC., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Recovery Management Services, Inc. (“RMS,” as its counsel

styles it) and Travis Hasom have filed what purports to be an

Answer, supplemented by Affirmative Defenses (“ADs”), to the Fair

Debt Collection Practices Act (“Act”) Complaint brought against

them by Luradean Young-Smith (“Young-Smith”). But that filing

reflects defense counsel’s flouting of the mandates of Fed. R.

Civ. P. (“Rule”) 8 and 11(b)(the latter of which requires

objective good faith on the part of parties and their counsel),

and so it is stricken sua sponte.1

First, Answer ¶¶2 and 12, Answer Count I ¶14 and Answer

Count III ¶19 betray a failure to read and follow the plain

 Instead of seeking to rank counsel’s several errors in 1

any order of importance, this opinion addresses them sequentially

in the order in which they appear. It should be added that the

matters referred to here are not necessarily exhaustive--it is

after all the lawyer’s obligation to comply with the applicable

standards in the first instance, rather than waiting for the

Court (or opposing counsel) to catch violations of those

standards. What are spoken of here are flaws exposed by a brief

threshold examination of defense counsel’s work product.
roadmap marked out by Rule 8(b)(5) as the basis for a disclaimer

of the need to comply with Rule 8(b)(1)(B)--see App’x ¶1 to State

Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill.

2001). Counsel then compounds his Rule 8(b)(5) violation by

going on “and therefore deny the same.” That is of course

oxymoronic--how can a party that asserts (presumably in good

faith) that it “lack[s] sufficient knowledge to admit or deny” an

allegation, or even (as Rule 8(b)(1)(B) specifies) “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 “and therefore...” phrase is stricken

wherever it appears in the Answer.

Next, a group of responses (Answer ¶¶2, 3, 4 and 8, Answer

Count I ¶16 and Answer Count III ¶19)--or perhaps more accurately

nonresponses--display counsel’s mindset that what he can label as

a legal conclusion or a nonfactual allegation excuses any need to

answer, as Rule 8(b)(1)(B) expressly dictates. That is of course

nonsense--see, e.g., App’x ¶2 to State Farm. Just to pick an

obvious instance, how can RMS fail to admit or to deny

unconditionally what it necessarily knows: whether it is a “debt

collector” within the meaning of the Act?

Relatedly, counsel seeks self-justification for those same

attempted circumventions by claiming “an abundance of caution.” 

That too is bad pleading, for it defeats the basic purpose of

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notice pleading (which is incumbent on defendants as well as

plaintiffs) to identify just what is and just what is not at

issue between the litigants.2

As for the ADs, they too are problematic. On that score,

defense counsel would do well to read App’x ¶5 to State Farm as

well as the uniform caselaw applying Rule 8(c).

In particular, AD 1 seeks to advance what amounts to a Rule

12(b)(6) motion--a doubtful subject under Rule 8(c). But even

apart from that general problem, this purported AD flouts the

obligation to accept the Complaint’s allegations as true for Rule

12(b)(6) purposes. It is stricken without leave to replead.

Next, although AD 2 facially seems to be a potentially

viable defense, at least two aspects of AD 3 appear questionable:

1. Counsel’s assertion that purported violations of

the Act were “technical” totally ignores the purposefully

technical nature of the Act, intended to curb what Congress

has determined are harassing and abusive collection efforts.

2. Any contention that claimed violations are “de

minimis in nature” similarly ignores the congressional

decision--for the same reasons--to provide for statutory

damages even absent a showing of actual damages.

In summary, the entire pleading is stricken, with leave

 In that regard, are defendants really in a position to 2

deny various of the factual allegations advanced by Young-Smith? 

See, e.g., Answer ¶¶6, 7 and 9.

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granted to file an Amended Answer and Affirmative Defenses on or

before May 2, 2012. Regrettably, the wholesale violation of

fundamental principles of federal pleading identified here

appears to reflect the misperception that pleading (if not

lawyering in general) is a sort of word game in which the prize

goes to the lawyer who obfuscates the issues most. This Court

has long mulled over the appropriate judicial response in such

situations--for example, a modest monetary sanction would clearly

not serve as a deterrent, and any heavier financial imposition

would seem inappropriate. What appears preferable here, and what

this Court now orders, is this:

1. Defense counsel is not to charge his clients for

the time and any expense involved in the preparation and

filing of the curative pleading required here.

2. Counsel is also required to provide the clients

with a copy of this opinion, coupled with a confirmation of

what has been stated in paragraph 1, and to transmit a copy

of the forwarding letter to this Court (purely for

informational purposes, not for filing).

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: April 18, 2012

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