Case No. 16 C 7443
Two of the three defendants in this action brought by Joel Quinones ("Quinones") under the purported auspices of the Fair Credit Reporting Act (the "Act") -- Chase Bank, USA, N.A. ("Chase") and Experian Information Solutions, Inc. ("Experian") -- have filed responsive pleadings, in each instance comprising an Answer and Affirmative Defenses ("ADs") to Quinones' Complaint. This memorandum order is issued sua sponte because each defense counsel has joined the unfortunately nonexclusive society of lawyers who fail to heed the clear line of demarcation prescribed by Fed. R. Civ. P. ("Rule") 8(b): on the one hand the mandate to admit or deny if plaintiff's allegations contained in Rule 8(b)(1)(B), and on the other hand the disclaimer provided by Rule 8(b)(5) if an admission or denial is inappropriate.
That error on the part of Experian's counsel is particularly difficult to understand, for this Court has spotted three instances (Answer ¶¶ 12, 13 and 17) where counsel has used the Rule 8(b)(5) disclaimer in its proper form. That said, it should be made clear at the outset that no view is expressed here as to the truthfulness of any of the Rule 8(b)(5) disclaimers by either Chase or Experian -- if Quinones' counsel were to perceive any problem in that respect, it will be left to him to raise that issue. --------
Neither defense counsel has been content to invoke Rule 8(b)(5) as to a host of Quinones' allegations (in Chase's case, in its Answer ¶¶ 2, 5-7, 9, 11, 14, 15, 17-19, 23-25, 27-29, 31, 35 and 36, and in Experian's case, in its Answer ¶¶ 1, 2, 4, 6, 9-11, 14-16, 18-22, 24 and 28-37) without an impermissible addition -- on Chase's part, "and therefore denies them" and on Experian's part, "on that basis Experian denies, generally and specifically, the allegations in paragraph -- of the Complaint." It is of course oxymoronic for a party to assert (presumably in good faith) that it lacks even enough information to form a belief as to the truth of an allegation, then proceed to deny it. Such denials are clearly at odds with the pleader's obligations under Rule 11(b).
Although this Court might well strike the two responsive pleadings in their entirety in order to impress on counsel the need for greater care in the future, it will not do so here because the error can be eliminated by simply striking the offending language from each Answer. This Court so orders.
Milton I. Shadur
Senior United States District Judge Date: August 18, 2016