“waiver” (as to the meaning of which term counsel should
consult any of the multitude of cases--or even a legal
dictionary--discussing that concept).

3. In a variant on the same theme, AD 3 asserts
plaintiffs' failure to mitigate damages. Though such a
failure is certainly an appropriate ground for an AD in
conceptual terms, unless Arrow knows that to be the case
(instead of saying that if there were a failure to mitigate,
that failure would reduce damages), raising the issue now is
entirely premature.

4. AD 4 disclaims Arrow's liability “where the alleged
discrimination occurred outside the scope of employment or
without the Defendant's consent, ratification or knowledge.”
That is of course true under some circumstances, but it
depends on the level of authority of the employee or
employees who engaged in the discriminatory activity. Ac {8
names a set of Arrow people whose actions allegedly trigger
Arrow's liability on respondeat superior grounds, but no
effort is made there to particularize the individual
situations (and that is one paragraph Arrow has failed to
answer). Hence that portion of AD 4 will not be stricken at
this point, pending future developments.

5. Lastly,’ AD 6 is at odds with the basic principle

2

Mirabile dictu, the second and third paragraphs of AD 5
advance a legitimate affirmative defense and escape unscathed.

4


courts), the “legal conclusion” attack is an empty one--see App.

(2 to State Farm. Those paragraphs

are stricken as well.

In still another inexplicable departure from the plain

roadmap marked out by Rule 8(b)'s second sentence, Answer qs

wholly fails to address the most significant components of the

required disclaimer--see App. §1 to
(including its impermissible demand
stricken too.

Finally, Arrow's ADs (referred
(for example, as “AD 1” rather than
are also riddled with errors. Here

possible under the circumstances:

State Farm. That paragraph

for “strict proof”) is

to here by a shorthand form
“First Affirmative Defense”)

is as brief a listing as is

1. Each of AD 1 through AD 6 begins with the mistaken

assertion, purportedly under the auspices of Rule 8, of

Arrow's denial of liability for plaintiffs' claims. That of

course is not a real AD--see App. 95 to State Farm. Because

Arrow has already put the claims in issue by its paragraph-

by-paragraph denials of allegations in the AC, such

statements in purported ADs not only are wrong but are total

surplusage as well.

2. ADs 1 and 2 speak of potential defenses that might

arise if discovery should reveal them. That makes no sense:

If any such facts are known now, Arrow must identify them

now, while any facts that are unknown at this point but are

learned later cannot by definition be the subject of a

3


ba.

that an AD accepts a plaintiff's allegations as gospel but

goes on from there--again see App. 95 to State Farm.

Except for those portions of the ADs that are spared in accordance
with the preceding discussion, all of Arrow's ADs are stricken —
too.

To avoid creating a confusing patchwork set of pleadings,
Arrow's entire Answer (including its ADs) is stricken, but with
leave granted to file a self-contained Amended Answer (including
any currently appropriate AD) in this Court's chambers on or
before October 30, 2001. Because this ‘sua sponte opinion has
spared the need for plaintiffs' counsel to expend any time and
effort in addressing the same issues, Arrow and its counsel are
not required to bear any fee-shifting. But an appropriate
judicial response to what has been dealt with here is to require
Arrow's counsel to send a copy of this opinion to their client
together with a letter advising that no charge will be made for

any time and expense incurred in correcting counsel's own errors
(with a copy of that letter to be delivered to this Court's

chambers as an informational matter and not for filing). This

a/ Oe

Milton I. Shadur
Senior United States District Judge

Court so orders.

Date: October 19, 2001



Minute Order Form (06/97)

‘ 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 01 C 7489 DATE 10/19/2001
CASE Ronnie Scott, et al vs. Arrow Chevrolet, Inc.
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
ion bei d.

MOTION: of the motion being presented,]

DOCKET ENTRY:

(0) 0 Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due.

(G3) Oo Answer brief to motion due . Reply to answer brief due. :

(4) Oo Ruling/Hearing on setfor______at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at

(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(1) im] Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OO General Rule21 OO FRCP41(a)(1) OO FRCP41(a)(2).

(io) += {Other docket entry] _ Enter Memorandum Opinion and Order. To avoid creating a confusing
patchwork set of pleadings, Arrow’s entire Answer (including its Ads) is stricken, but with leave granted
to file a self-contained Amended Answer (including any currently appropriate AD) in this Court’s
chambers on or before October 30, 2001.

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

No notices required, advised in open court.
No notices required. umber of nies
wv | Notices mailed by judge’s staff.
Notified counsel by telephone. q CT 22 2001
Docketing to mail notices. eS)
Mail AO 450 form. WN.
Copy to judge/magistrate judge.
10/19/2001
courtroom date mailed notice,
SN deputy's sw
initials
Date/time received in
central Cletk’s Office imaling deputy initials



IN THE UNITED STATES DISTRICT COURT OcT 2 2 206
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

RONNIE SCOTT, et al.,

)
) .
Plaintiffs, ) a
)
v. ) No. 01 C 7489
)
ARROW CHEVROLET, INC., )
)
Defendant . )
MEMORANDUM OPINION AND ORDER
Arrow Chevrolet, Inc. (“Arrow”) has filed its Answer and a

number of purported affirmative defenses (“ADs”) to the Amended
Complaint (“AC”) brought against it by four African-American ex-
employees of Arrow who assert that they were the victims of race
discrimination and retaliatory activity. Although something more
than two months remains before this first year of the third
millenium A.D. (not AD) runs out, Arrow's counsel have established
themselves as prime candidates for the Worst Federal Pleading of
the Year Award. This sua sponte opinion sends counsel back to the
drawing board to try again.

It is an unfortunate fact of litigation life that enough
lawyers are heedless of a number of the plain directives contained
in the Federal Rules of Civil Procedure (“Rules”) that this Court
was ultimately driven to the publication of an Appendix (in State

Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill.

2001))--both to identify the most commonly encountered errors of

that type and to spare this Court's secretary the need for


constantly retyping corrective admonitions. But it is rare that a
single pleading offends in such a pervasive manner as Arrow's
response here. What follows addresses its flaws in the order in
which they occur, rather than essaying any effort to rank them in
order to importance.

To begin with, Rule 8(b) delivers a singularly clear message:
Every averment (from here on out this opinion will employ the more
common usage of “allegation”) must be admitted or denied unless
the responding pleader can overcome the disclaimer hurdles set out
in Rule 8(b)'s second sentence to gain the benefit of a deemed
denial. Yet Answer 441 through 3 and 25-32 persist in avoiding
any answer to the corresponding allegations in the AC on the basis
that a statute or some document “speaks for itself.” App. 43 to
State Farm explains why that is impermissible as a dodge to avoid
a forthright response. All those paragraphs of the Answer are
stricken.?

Next another set of forbidden nonresponses-~-Answer 42
through 5, 7 and 8--repeatedly advances the notion that the
corresponding paragraphs in the AC “call for a legal conclusion”
as well as “fail to allege any facts.” Quite apart from the
obvious answer that federal pleading is notice pleading and not

fact pleading (as is the case, for example, in the Illinois state

+ When counsel redo their work, they should also drop all of
their wholly meaningless demands for “strict proof” (whatever that
may be) wherever such a demand now appears.

2