correcting counsel’s errors. Counsel are ordered to apprise
their 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: December 14, 2000


Next and most pervasive, Health Care's counsel has
inexplicably ignored the plain requirement of Rule 8(b)’s second
sentence as to what is essential for a responding party to become
entitled to a deemed denial of an allegation. All that Health
Care sets out is its asserted “insufficient knowledge to form a
belief,” even though Rule 8(b) also imposes the considerably more
demanding absence of sufficient information to form a belief as
to the truth of the other side's allegations. That flaw pervades
the entire responsive pleading (Answer 993, 6-9, 13-21, 23-24,
32-34 and 37-39). Moreover, all of those inadequate disclaimers
add a totally meaningless demand for “strict proof,” whatever
that may be (as this Court has commented elsewhere, that added
adjective has far less warrant than the often-encountered usage
of “gross negligence,” which Judge Easterbrook has characterized
as negligence with a pejorative adjective). Every one of those
paragraphs is stricken as well.

Because an amendment extensive enough to embody all of the
required corrections would create a pleading patchwork, this
Court strikes the entire responsive pleading. Leave is granted,
of course, for Health Care to file a self-contained amended
responsive pleading on or before December 22, 2000. And because
there is no reason that the client should have to pay for such
fundamental errors on the part of its lawyer, no charge is to be

made to Health Care for the added work and expense incurred in


Minute Ort2:

em (06097) *

United States District Court, Northern District of Illinois

Name of Assigned Judge Milton I, Shadur Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 00 C 7072 DATE 12/14/2000
CASE James Lebster, et al vs. Nu- Way Transit, Inc., et al
TITLE
{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. |
DOCKET ENTRY:
(op) oO Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on _set for at
(6) o Pretrial conference{held/continued to] [set for/re-set for] on set for at_
[) o Trial{set for/re-set for} on at
(8) ia} [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (General Rule2! CIFRCP41(a(i) O FRCP41(a)(2).

(io) =f [Other docket entry] Enter Memorandum Order. The entire responsive pleading is stricken. Leave

is granted, for Health Care to file a self-contained amended responsive pleading on or before December

22, 2000.
(1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

io notice: red,
No notices requires number of notices

Notices mailed by judge’s staff.

Ee ae a

date docketed,

AS. initiais

12/14?2000

Notified counsel by telephone i)
Doeketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

VELL GQ pn, diate mailed notice
courtroom os
SN deputy’s SN
initials

Date/time received in
central Clerk's Office

mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAMES LEBSTER, et al., )
) 3
Plaintiffs, )
)
v. ) No. 00 C 7072
)
NU-WAY TRANSIT, INC., et al., )
)
Defendants. )

MEMORANDUM ORDER

Health Care Service Corporation (“Health Care”) has filed
its Answer, Affirmative Defenses and Cross-Claim in this action
brought by James and Elizabeth Lebster (collectively “Lebsters”)
against Health Care and other defendants. This memorandum order
is issued sua sponte to address some obvious (and really
inexcusable) deficiencies in that responsive pleading.

To begin with, Health Care’s counsel has no business in
declining to answer the Complaint 41 allegation of jurisdiction
on the predicate that “said allegation states a conclusion of
law.” Of course it does--subject matter jurisdiction involves
the most fundamental legal conclusion of all--but Fed. R. Civ. P.
(“Rule”) 8(b) requires a response to all of a plaintiff's
allegations (referred to there as “averments”), and it is
incontestable that legal conclusions form a proper part of
federal pleading (see, e.g., Neitzke v. Williams, 490 U.S. 319,
325 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992); and

relatedly, see the opinion of our Court of Appeals in Jackson v.


Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995)). Indeed, the
Appendix of Forms that immediately follows the Rules--forms that
are given the official seal of approval by Rule 84--expressly
contemplate the admission of an allegation of jurisdiction (see
Form 21). And of course it makes eminently good sense to compel
a defendant to respond to jurisdictional allegations, given the
fact that subject matter jurisdiction is the first thing that a
court must look at (even on its own).?

Next, Answer 4§1, 2 and 27 avoid making a proper response to
the corresponding Complaint allegations by asserting that the
statutes referred to in those allegations “speak for themselves.”
This Court has been attempting to listen to written materials for
years (in the forlorn hope that one will indeed give voice) --but
until some such writing does break its silence, this Court will
continue to require pleaders to employ one of the three
alternatives that are permitted by Rule 8(b) in response to all
allegations about the contents of documents or statutes. No
reason appears why Health Care’s counsel should not respond by
admitting any allegation that accurately describes the content of

whatever part of a statute is referred to in the Complaint.

* Although the matters set out in Complaint 995 and 11 are
not of course as critical to this Court’s proceeding with the
case as the matter of subject matter jurisdiction, everything
else said in the just-completed paragraph of the text applies
with equal force to those allegations. Accordingly Answer 445
and 11, as well as Answer 41, are stricken.

2