3. AD 3 charges Schlyer’s breach of “the duty of good
faith and fair dealing” in connection with the promissory
note referred to earlier, by assertedly making excessive
charges for the legal fees “reflected in the note.” That
“good faith and fair dealing” concept really has no place in
connection with a suit on a promissory note for a liquidated
amount. AD 3 is stricken.

4. AD 4 says that Schlyer has failed to mitigate its
damages. Any such notion is equally mysterious in
conjunction with claims on an unpaid note and for legal
services, and it too is stricken.

To the extent that plaintiffs’ counsel believe that any part
or all of the ADs are capable of resuscitation, revised versions
may be included in the amendment referred to earlier in this

opinion. If not, all of the ADs will remain stricken.

CMa Dincdber.

Milton I. Shadur
Senior United States District Judge

Date: August 6, 2001



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é United States District Court, Northern District of Hlinois
4 Name of Assigned Judge Fi Sitting Judge if Other
i or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 01 C 1408 DATE 8/6/2001
t CASE Gerald Adams, et al. Vs. Donald e. Schlyer et al.
4 TITLE
1 [in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
' MOTION: nature of the motion being presented.]
Memorandum Opinion and Order
i
\ DOCKET ENTRY:
(1) Qo Filed motion of { use listing in “Motion” box above.]
‘ Q) ia) Brief in support of motion due
(3) im) Answer brief to motion due. . Reply to answer brief due .
(4) Oo Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
; (6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
| {7) o Trial[set for/re-set for] on at . |
|
| (8) im} [Bench/Jury trial] [Hearing] held/continued to at I
j (9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
4 OFRCP4(m) General Rule2! OFRCP41(a\(1) O FRCP41(a)(2).
4
| (10) [Other docket entry] Enter Memorandum Opinion and Order. Because the proffered pleading is
deficient in a couple of respects, this memorandum opinion and order is issued sua sponte to require
curative action on plaintiffs’ part.
(il) ff {For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of notices
Notices mailed by judge’s staff.
Notified counsel by telephone. AU G, 0 7 201
V_ | Docketing to mail notices. @® —_
Mail A 450 form. ne - docketitg deputy initiats e)
Copy to judge/magistrate judge. btu 1G
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GERALD ADAMS, et al.,
Plaintiffs,

No. 01 C 1408

DOCKETED

DONALD E. SCHLYER, et al., AuG 0 7 2001

<

Defendants.

MEMORANDUM OPINION AND ORDER

Counsel for plaintiffs Gerald Adams and Tri-Central Marine
Terminal, Inc. have filed their Answer and Affirmative Defenses
to the Counterclaim brought against them by defendants :
(collectively referred to for convenience as “Schlyer,” treated
as a singular noun). Because the proffered pleading is deficient
in a couple of respects, this memorandum opinion and order is
issued sua sponte to require curative action on Plaintiffs’ part.

It appears that plaintiffs’ counsel are not sufficiently
attentive to the rules governing federal pleading, for they had
also contemporaneously delivered for filing a separate set of
Answers to Schlyer’s Affirmative Defenses to Plaintiffs’ First
Amended Complaint. Because such a filing is flatly prohibited by
Fed. R. Civ. P. (“Rule”) 7(a), this Court intercepted that
proffered filing and discarded it with the permission of
plaintiffs’ counsel, thus avoiding needless clutter in the court

file.

As for the pleading now at issue, Counterclaim Answer q2


fails to respond directly to Schlyer’s allegations about the

promissory note referred to in Counterclaim q2 by stating that
plaintiffs “deny the remaining averments in paragraph 2 as the
document set forth therein speaks for itself.” That won’t do--

see App. 93 to State Farm Mut. Auto. Ins. Co. v. Riley, 199

F.R.D. 276, 279 (N.D. Ill. 2001). Accordingly Counterclaim
Answer §2 is stricken, albeit with leave to file an amendment in
this Court’s chambers (with a copy of course delivered to
Schlyer’s counsel) on or before August 17, 2001, failing which
Counterclaim 42 will be deemed admitted.

All of the remaining problems with the pleading at issue
relate to its several Affirmative Defenses (“ADs”). In those
respects:

1. AD 1 asserts an accord and satisfaction, stating
that plaintiffs have paid all amounts due under the
promissory note sued upon in the Counterclaim. That is
factually at odds with Counterclaim 43, so plaintiffs must
flesh out that AD to explain the predicate for their
assertion.

2. AD 2 purports to state a laches defense. Although
laches is a permissible AD under Rule 8(c), again it will
not do for plaintiffs to advance such a conclusory assertion
without an explanation that sufficiently notifies Schlyer

and this Court of the ground on which it rests.