IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LARRY D. GASPER, etc., )

)

Plaintiffs, )

)

v. ) No. 12 C 1728

)

MEDX, LLC, et al., )

)

Defendants. )

MEMORANDUM ORDER

Defendants have filed their Answer and Affirmative Defenses

(“ADs”) to the First Amended Complaint (“FAC”) brought against

them by Larry Gasper (“Gasper”) under the asserted auspices of

the Fair Labor Standards Act (“FLSA”). This memorandum order is

issued sua sponte to address a few problematic aspects of that

responsive pleading.

First, Answer ¶¶8, 9 and 27 assert incorrectly that “no

answer is required” as to allegations in the corresponding FAC

paragraphs that are characterized as “legal conclusions.” But

Fed. R. Civ. P. (“Rule”) 8(b)(1)(B) contains no such exception--

see also App’x ¶2 to State Farm Mut. Auto. Ins. Co. v. Riley, 199

F.R.D. 276, 278 (N.D. Ill. 2001). Indeed, defense counsel really

recognized as much when he properly responded to the

quintessential legal conclusions as to jurisdiction (Answer ¶2)

and venue (Answer ¶3). Hence the offending portions of Answer

¶¶8, 9 and 27 are stricken, but with leave granted to file a

corrective amendment on or before October 29, 2012.

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As for the ADs, any time that a court encounters a laundry

list such as that advanced here (no fewer that 12 ADs) it is

pretty certain that defense counsel is resorting to boilerplate

assertions rather than adhering to the federal notice pleading

concept that applies to defendants as well as plaintiffs. That

certainly appears to be the case here--thus:

1. AD 1 refers to “[s]ome of the activities for which

Plaintiff seeks compensation” as not being “work” for FSLA

purposes. That type of amorphous assertion does little

toward apprising Gasper’s counsel and this Court of just

what types of activity are challenged.

2. ADs 2, 3 and 5 are directly at odds with the

already-denied allegation in FAC ¶21 and are therefore

inappropriate under Rule 8(c) and the caselaw applying that

Rule--and see also App’x ¶5 to State Farm. 

3. AD 4, like AD 1, is insufficiently informative and

needs to be fleshed out. 

4. ADs 6 and 7 really address issues of potential

proof rather than being defenses as such. 

5. How can defendants know at this point that Gasper

“has failed to mitigate his alleged damages”?

6. AD 10 is the essential equivalent of a Rule

12(b)(6) motion, which requires Gasper’s allegations to be

accepted as gospel. In those terms AD 10 is wrong, and it

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too fails.

7. AD 11 is a belt-and-suspenders assertion, as to

which Gasper’s claimed lack of standing to sue MedX LLC has

already been set out at numerous places in the Answer

itself.

8. AD 12 is totally uninformative. If defendants can

point to specific FLSA provisions, they must do so.

For the numerous reasons just identified here, all of the ADs are

stricken, and defense counsel is also granted until October 29 to

clean up his act as to any properly asserted ADs.

No charge is to be made to defendants by their counsel for

the added work and expense incurred in correcting counsel’s

errors. Defense counsel is ordered to apprise his clients to

that effect by letter, with a copy to be transmitted to this

Court’s chambers as an informational matter (not for filing).

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: October 16, 2012

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