of disclaimer that is called for by the second sentence of Rule
8(b). Instead, in the interest of saving a great deal of space
without the loss of any relevant information, the Amended Answer
called for by this opinion will be permitted to eliminate the
copying of a great many paragraphs of the AC (as is ordinarily
called for by LR 10.1), instead responding to those paragraphs
collectively in this fashion:

The averments set forth in Paragraphs [listing the

numerous paragraph numbers] of the Amended Complaint

are not directed to this defendant and therefore no

answer is required or given.

That space-saving practice may not however be employed with
respect to AC allegations that do bear a relationship to the
conduct that Native American Arts has ascribed to Feathers.

Hence an appropriate direct answer conforming to the dictates of

Rule 8(b) will be required with respect to AC 9929(i), 29(4),

30(c) and 30(d) (all of which relate to products that AC 448
attributes to Feathers).

Finally, a number of the ADs are problematic. Here are the
difficulties that at least figuratively jump off the page to
strike the reader's eye:

1. AD 1, which is the equivalent of a Rule 12(b) (6)
motion, is puzzling. If Native American Arts' allegations
are accepted as gospel (as they must be for such purposes),
Feathers must provide a better explanation as to why no
viable claim has assertedly been advanced here.

4


permitting private civil actions by Indian arts and crafts
organizations such as Native American Arts (see Section
305 (e) (c) (1) (C)). Answer 91 is therefore stricken, and it will
remain stricken unless Feathers' counsel can muster some
legitimate argument for challenging subject matter jurisdiction.”
Another fundamental flaw lies in the Answer's refusal to
respond to various allegations on the premise that conclusions of
law require no answer (see Answer 4916, 17, 42, 43, 61 and 62),
even though Rule 8(b) permits no such self-determination by a

pleader--see App. §2 to State Farm Mut. Auto. Ins. Co. v. Riley,

199 F.R.D. 276, 279 (N.D. Ill. 2001). All of those paragraphs in
the Answer are also stricken.

As for the host of AC paragraphs to which Feathers makes no
response on the basis that their averments “are not directed to
this defendant and therefore no answer is required or given,”
that practice too does not literally comply with Section 8(b)'s
requirements (as might have been the case if Native American Arts
had drafted its pleading in a way that had separated out its
claim against each defendant). But this Court is disinclined
(with limited exceptions) to put Feathers to the task of

responding to those AC paragraphs by repeatedly invoking the type

2 Although no comparable action is taken here as to

Feathers' outright denial of the venue allegation of AC 42, this
Court anticipates that such a denial will be included the second
time around only if there is a legitimate basis for questioning
the action's conformity to 28 U.S.C. §1391(a).

3


2. ADs 2, 4, 5 and 7 cannot stand in their present
form. Even in a notice pleading environment, both Native
American Arts' counsel and this Court are entitled to a more
fleshed-out explanation of the manner in which such ADs
(which are permitted by Rule 8(c)) identify real defects in
the claims asserted by Native American Arts.

3. Finally, AD 8 is stricken. No such amorphous and
uninformative attempted incorporation by reference can be
tolerated--again Native American Arts' counsel and this
Court are entitled to greater precision.

Because so many things in Feathers' Answer thus require
correction, this Court strikes the present Answer from the court
file in its entirety (another useful space-saver). Feathers’
counsel are of course granted leave to file an appropriate self-
contained Amended Answer conforming to what has been set out
here, and to do so by a filing in this Court's chambers on or
before September 7, 2001. For its part, Native American Arts is
ordered to communicate promptly with every other defendant that
has not yet filed its answer, providing each of those defendants
with a copy of this opinion, in order that they may in turn

follow the more simplified and more appropriate procedures

—

described here. 5
Ga

Milton I. Shadur
Date: August 27, 2001 Senior United States District Judge



fp 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 1618 DATE 8/27/2001
CASE Native American Arts, Inc. vs. Bundy-Howard, Inc., ete.
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

MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) Qa Filed motion of [ use listing in “Motion” box above.]

(2) QO Brief in support of motion due

(3) Oo Answer brief to motion due . Reply to answer brief due.

(4) o Ruling/Hearing on set for at

(5) o 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

(©) Oo Trial{set for/re-set for] on at

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

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

OOFRCP4(m) (CiGeneral Rule2! OFRCP41(a)(1) OC FRCP41(a)(2).

(10) Ml [Otherdocketentry} Enter Memorandum Opinion and Order. Because so many things in Feathers’
Answer thus require correction, this Court strikes the present Answer from the court filed in its entirety.
Feathers’ counsel are of course granted leave to file an appropriate self-contained Amended Answer on
or before September 7, 2001.

dl) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

i wired,
No notices required. number of notices

‘Document
Number

Notices mailed by judge’s staff.

we)

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

docketing deputy initials

Copy to judge/magistrate judge. WED

BL AUG 27 PUSS

8/27/2001

£

courtroom date mailed notice.

deputy’s
initials

SN SN

Date/time received in
central Clerk’s Office

mailing deputy initials

yf



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NATIVE AMERICAN ARTS, INC., )
)
Plaintiff, )
)
v. ) No. O1 C 1618
DOCKETED
BUNDY-HOWARD, INC., etc., et al., ) AUG 2 8 2001
)
)

Defendants.

MEMORANDUM OPINION AND ORDER

Feathers (“Feathers”), one of the numerous defendants
(including the putative unknown defendants that are referred to
in the Amended Complaint (“AC”) as “John Doe 1 to 10 Unidentified
Suppliers”) in this action brought by Native American Arts, Inc.
(“Native American Arts”) under 25 U.S.C. §305e (“Section 305e”),
has filed its Answer and Affirmative Defenses (“ADs”) to the AC.
Because several aspects of that responsive pleading are in patent
need of correction, this memorandum opinion and order is issued
sua sponte to send Feathers' counsel back to the drawing board.

It should be recognized that part of the problems addressed
here may fairly be laid at Native American Arts' doorstep in the
first instance. Its counsel have exhibited a blithe disregard of
what may be the most fundamental aspect of the notice pleading
regime in the federal court system, which calls for a complaint
to set out “a short and plain statement of the claim showing that
the pleader is entitled to relief” (Fed. R. Civ. P. (*Rule”)

8(a), appropriate emphasis added). Instead the AC here is a

2


prolix example of fact pleading, setting out a mass of detail
that is far more appropriately garnered through disclosure and
discovery than cluttering up the court files.+

In retrospect, this Court should perhaps have trashed the AC
in favor of requiring a pleading in harmony with, rather than at
odds with, the notice pleading approach. That would have
produced far less bulk in the court file and in this Court's
chambers file, with no one being worse off because the same
detailed information is furnished via the Rule 26(a) (1) initial
disclosure requirement. But that possibility is behind us, and
it has become necessary to deal with the resulting fallout
(including responsive pleadings like the current one, which
compound the problem by their own inattention to some basics).

To begin with, this Court fails to see how Feathers’ counsel
can, in the objective good faith required of every lawyer and
every client by Rule 11(b), deny the straightforward
jurisdictional allegation of AC 41. Section 305(e) was amended

in 2000 for the express purpose of filling a preexisting gap by

1 That is particularly true now that Rule 26(a) (1) has been

amended as of December 1, 2000 to mandate initial disclosure
(before any discovery request), even in districts such as this
one, which had previously opted out of that requirement. And
there is a special irony in the fact that in this case the
lawyers for a Native American organization are adversely
impacting the environment by causing the destruction of so many
trees, coupling their massive Rule 8(b) violation with the naming
of multiple defendants, each of which is compelled to respond to
the AC by repeating its allegations (see this District Court's LR
10.1) and then by answering in comparable detail.

2