IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHELE F. O’BRYAN, )

)

Plaintiff, )

)

v. ) Case No. 12 C 5305

)

POSTRACK TECHNOLOGIES, INC., )

et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

PosTrack Technologies, Inc. (“PosTrack”) has filed its

Answer and Affirmative Defenses (“ADs”) to the Complaint brought

against it and four individuals by its former executive employee

Michele O’Bryan (“O’Bryan”). This memorandum opinion and order

is issued sua sponte because that responsive pleading gets a

failing grade in Federal Pleading 101 in a number of respects --

indeed, in some ways it is almost a poster child for how not to

plead under the Federal Rules of Civil Procedure (“Rules”).

To begin with, PosTrack’s counsel have gotten the notion

somewhere that the appropriate way to respond to any paragraph in

a complaint is to begin in this way:

PosTrack denies the allegations made and contained in

Paragraph -- of the Complaint, except to admit that....

That convoluted locution, rather than the type of straightforward

admission or denial contemplated by Rule 8(b)(1)(B) and 8(b)(4),

puts the reader to the time-consuming task of trying to parse

every snippet of a plaintiff’s allegations, only to learn in some
situations that nothing has really been denied at all. When

counsel returns to the drawing board as she must, that format has

to be abandoned.

Another inappropriate -- and wrong -- usage in the Answer is

its characterization of nearly everything in sight as “a legal

conclusion to which no response is required” (see, e.g., Answer

¶¶7, 9-13, 32-35 and 38-41). First of all, the statement that no

response is called for is incorrect -- see App’x ¶2 to State Farm

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

2001), as well as some examples in the forms contained in the

Appendix to the Rules, which Rule 84 sets out as models.

Next, Answer ¶¶7, 22 and 23 inexplicably depart from the

roadmap that Rule 8(b)(5) has plainly marked out to serve as a

disclaimer when one is called for. Then, having done so,

PosTrack’s counsel proceeds to deny the disclaimed allegation. 

That is of course oxymoronic -- how can a party that must assert

(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 denial is

stricken from each of those paragraphs of the Answer.

PosTrack’s purported ADs are flawed as well. Here are the

problems there:

1. AD 1 is impermissibly vague. If O’Bryan has

indeed not complied with any statutory prerequisite to

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suit or has missed the statute of limitations, notice

pleading principles (which are incumbent on defendants

as well as plaintiffs) demand that such an assertion be

fleshed out by specifying just what the defects are. 

Only if that is done can O’Bryan’s counsel and this

Court determine whether this action should be narrowed

(or perhaps dispatched entirely).

2. AD 2 impermissibly violates the requirement

that any AD must accept a plaintiff’s allegations as

gospel, but must then identify why defendant is

nevertheless not liable or, perhaps, is liable for less

than what is claimed -- see App’x ¶5 to State Farm.

3. AD 3, which is the equivalent of a Rule

12(b)(6) motion, is dead wrong.

4. AD 4 is almost certainly the product of

speculation rather than being based on factual

knowledge, and hence it runs afoul of Rule 11(b).

5. AD 5 is wholly unnecessary. If and when some

other AD may possibly emerge, PosTrack will have to

bring it on by motion in any event.

In light of the pervasiveness of the flaws described here,

the entire Answer and ADs are stricken, but with leave granted to

submit an appropriate responsive pleading on or before October 1, 

2012. No charge is to be made to PosTrack by its counsel for the

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added work and expense incurred in correcting counsel’s errors. 

PosTrack’s counsel is ordered to apprise his client 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: September 21, 2012 

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