the part of Defendants. Bundalo has not introduced this claim in the proper manner
and regardless, Bundalo has deleted this section in her amended answer to the
counterclaim. Therefore, the motion to strike the section entitled “Affirmative
Allegations” in Bundalo’s answer to the counterclaira is granted.
Il. Affirmative Defense

In her answer to Norwood Park’s counterclaim, Bundalo states in a section
entitled “Affirmative Defenses” that under Ilinois law Bundalo did not have a
fiduciary relationship with Norwood Park. We note that a motion to strike an
affirmative defense is disfavored, and will not be granted “unless it appears to a
certainty that plaintiffs would succeed despite any state of facts which could be proved
in support of the defense and are inferable from the pleadings.” Williams v. Jader Fuel
Co., 944 F.2d 1388, 1400 (7th Cir. 1991)(quoting Durhimn Indus. v. North River Ins.
Co., 482 F.Supp. 910, 913 (S.D.N.Y. 1979). However, the lack of a fiduciary
relationship statement in Bundalo’s answer to the courterclaim does not constitute an
affirmative defense and therefore is not entitled to such a stringent standard of
protection. An affirmative defense is “a new matter which assuming the complaint to
be true, constitutes a defense to it.” BLACK’S LAW DICTIONARY 55 (Sth ed. 1979); See
also 5 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1270 (2d ed.

1990)(stating that an affirmative defense stems from the common law “which permitted


contains material alterations such as introducing the affirmative defenses of unclean
hands, and duress. We did not grant leave to file an amended answer to the
counterclaim and the introduction of new issues is clearly inappropriate in light of the
fact that we have ordered no reply by Norwood Park for this motion. Therefore, in
making our determination we will only consider the proposed amended answer to the
counterclaim to the extent that it cures any problem alleged by Norwood Park under
this motion.
LEGAL STANDARD

Rule 12(f) of the Federal Rules of Civil Procedure provides: “the court may
order stricken from any pleading any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Asa general rule motions to strike are disfavored
because of their tendency to delay the proceedings. Heller Financial v. Midwhey
Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989}. However, a motion to strike
is not disfavored if it will “remove unnecessary clutter from the case” and “expedite”
matters. Jd.

DISCUSSION

I. Affirmative Allegations

The section entitled “Affirmative Allegations” in Bundalo’s answer to Norwood

Park’s counterclaim alleges that the counterclaim is merely additional harassment on


a defendant who was willing to admit that plaintiff's declaration demonstrated a prima
facie case to then go on and allege additional new material that would defeat plaintiff's
otherwise valid cause of action.”). Norwood Park is correct when it argues that the
statement claiming a lack ofa fiduciary relationship merely refutes the claim of breach
of fiduciary duty included in the counterclaim.

Bundalo cites Sobel v. Franks, 633 N.E.2d 820, 827 (1st Dist. 1994), to support
its assertion that a lack of a fiduciary relationship can be considered an affirmative
defenses under Illinois law. In Sobel the Defendant insurance agency provided a desk
and phone to a sole proprietor insurance salesman ir. exchange for a portion of his
commissions. /d at 822. Upon being told to leave the premises, the salesman sued for
an accounting and other recovery and the Defendant agency alleged breach of fiduciary
duty as an affirmative defense. /d. at 824-25. Bundalo argues that since breach of a
fiduciary duty can be an affirmative defense, a lack of a fiduciary duty can also be an
affirmative defense. This argument is without merit. To determine whether an
assertion is an affirmative defense one must do more than simply match the claim with
terms found in other cases. It is important to understand in what context the assertion
is offered, In Sobel the Defendant in offering his affirmative defense of breach of

fiduciary duty, was indicating that even if it had acted improperly, the Plaintiff was at


Minute Order Form (0697)

United States District Court, Northern District of Illinois

Name of Assigned Judge Charles P. Kocoras Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 8782 DATE 9/6/2002
CASE Bundalo vs, Szcco et al
TITLE

MOTION:

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, iefendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being preseated.}

DOCKET ENTRY:

qd) a Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion duc _
GB) oO Answer brief to motion duc___. Reply to answer brief due_
(4) o Ruling/Hearingon set for at
(5) o 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
(7) o 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]
OFRCP4(m) Cl Local Rule 41.1 OFRCP41(a)(1) 0 FROP-41(a)(2).
do) «of [Other docket entry] ENTER MEMORANDUM OPINION: We grant Norwood Park’s motion
(Doc 29-1) to strike the section entitled “Affirmative Allegations” in Bundalo’s answer to Norwood
Park’s counterclaim. Likewise we grant the motion to strike the section of Bundalo’s answer to the
counterclaim entitled “Affirmative Defenses” that claims there is not a fiduciary relationship between
Bundalo and Norwood Park.
(dl) @f {For further detail see order attached to the original minute order.
No notices required, advised in open court Document
Number
No notices required. number of notices,
Notices mailed by judge's staf, SEP 0 g 2002
Notified counsel by telephone. date docketed
—
S| Docketing to mail notices =
miter sin ‘oe >
Mail AO 450 form. INAS LAWS dockating deputy iniyhts —_
Copy to iyafynasistate judge. ws
_ | courttoom
SCT deputy’s
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Date/time received in
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fault for breaching his fiduciary duty thereby precluding any recovery. The Defendant
was not simply refuting the accounting claim being brought against him.

Therefore, the motion to strike the statement in the plaintiff's answer to the
counterclaim alleging that there was no fiduciary relationship is granted. It is
important to note, however, that we are not deciding today whether there was a
fiduciary relationship between Bundalo and Norwooc Park. The counterclaim alleges
a breach of a fiduciary duty and thus this issue will be dealt with accordingly as we
proceed towards a disposition of the counterclaim.

CONCLUSION

Based on the foregoing analysis, we grant Norwood Park’s motion to strike the
section entitled “Affirmative Allegations” in Bundalo’s answer to Norwood Park’s
counterclaim. Likewise we grant the motion to strike the section of Bundalo’s answer
to the counterclaim entitled “Affirmative Defenses” that claims there is not a fiduciary

relationship between Bundalo and Norwood Park.

CA Lsa_ f Cee tee

Charles P. Kocoras
Chief Judge, United States District Court

Dated: __september 6, 2002


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION D0 CKEVED

y 200
CYNTHIA BUNDALO, stP

Plaintiff,
01 C 8782

VS.

ROCCO SECCO and THE TOWNSHIP
OF NORWOOD PARK,

ww SSS SS WS

Defendants.

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the Court on a motion to strike
Plaintiff/Counterdefendant’s “Affirmative Allegations” and one affirmative defense in
her answer to the counterclaim. For the reasons set forth below we grant the motion
to strike both the “Affirmative Allegations” and the affirmative defense addressed in
this motion. BACKGROUND

Plaintiff Cynthia Bundalo (“Bundalo”) was employed by Defendant The
Township of Norwood Park (“Norwood Park”). Bundalo alleges that she was
employed as a secretary, office manager and eventually as a clerical employee. She
claims that at no time did she engage in policy-making or have confidential duties.
Norwood Park admits only that Bundalo worked as a secretary and performed

s


functions such as food service and other clerical work. Bundalo claims that she was
required to perform political work as a condition of her employment in violation of her
First and Fourteenth Amendment rights. Bundalo was absent from work, claiming that
she was constructively discharged, and was eventually officially terminated as an
employee of Norwood Park.

Norwood Park has filed a counterclaim alleging that prior to leaving Norwood
Park, Bundalo removed certain confidential documents, thereby breaching her fiduciary
duty. Bundalo filed an answer to the counterclaim and included a section entitled
“Affirmative Allegations” in which she claims that the counterclaim constitutes further
harassment and was brought in retaliation for her refusal to perform political work. In
her answer to the counterclaim she also includes a section entitled “Affirmative
Defenses” in which she alleges that she did not have a fiduciary relationship with
Norwood Park. Norwood Park is now moving, pursuant to Fed.R.Civ.Pro. Rule 12(£),
to strike the “Affirmative Allegations” and the above mentioned statement in the
section entitled “Affirmative Defenses.”

We note that Bundalo has not filed an answer to this motion to strike as ordered
by this court. Instead Bundalo has filed a partial answer and a proposed amended
answer to Norwood Park’s counterclaim. While the proposed amended answer to the

counterclaim cures some of the problems alleged under this motion to strike, it also