Month: April 2012

Case Removed to Federal Court – Complaint Stricken As Too Prolix

Phillips v. DePAUL UNIVERSITY, Dist. Court, ND Illinois 2012 – Google Scholar.


In this memorandum opinion, the district court struck a complaint originally filed in the Circuit Court of Cook County on the ground that the complaint was too “prolix.”  In other words the complaint was too long and wordy.

Motion to Remand Granted Where Plaintiff Alleges Only State Law Claims

Abraham v. NEWBERRY COUNTY, Dist. Court, D. South Carolina 2012 – Google Scholar.

The defendant removed the action, but was unable to identify a federal question set forth in the complaint.  Thus, the case was remanded back to state court.

The court held as follows:

The defendant bears the burden of establishing the existence of removal jurisdiction.Mulachey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). Because removal jurisdiction raises significant federalism concerns, a district court must strictly construe removal jurisdiction. Id. (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)). If federal jurisdiction is in doubt, remand to state court is necessary. Id. Where, as here, the defendant bases subject matter jurisdiction on the presence of a federal question, the court must evaluate the plaintiff’s complaint filed in a state court to determine if federal question jurisdiction is present. Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 808 (1986).

Plaintiff states he has alleged solely state law claims in the instant action and seeks aremand of this action to state court. Defendant does not oppose a remand. As is appears this court does not have federal question jurisdiction, the court concludes that this action must be remanded to the Court of Common Pleas for Newberry County.

Edward X. Clinton, Jr.

Summary Judgment Granted Where Defendant Does Not Comply With Rule 56.1

WELLS FARGO PRACTICE FINANCE v. Norfleet, Dist. Court, ND Illinois 2012 – Google Scholar.

In a summary judgment motion, the moving party often submits a statement of undisputed facts that, if true, would allow it to obtain summary judgment.  The purpose of summary judgment, of course, is to grant judgment to the moving party if the facts are undisputed and the moving party has the legal right to judgment in its favor.

Local Rule 56.1 of the Northern District of Illinois requires the party responding to a summary judgment motion to controvert any statement of undisputed facts submitted by the defendant.

Here, in a breach of contract case the defendant did not controvert the statements in Wells Fargo’s statement of undisputed facts.  The court then held that summary judgment for Wells Fargo was proper.

Comment: responding to a summary judgment motion is an enormous amount of work.  The facts must be controverted with proof or the non-movant stands to lose the case.  Here, the failure to dispute the allegations allowed Wells Fargo to collect on a guaranty.

Edward X. Clinton, Jr.

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 – Supreme Court 2007 – Google Scholar

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 – Supreme Court 2007 – Google Scholar.

This is the first in a series of two extremely important cases discussing the standards necessary to adequately plead a claim for relief under Federal Rule of Civil Procedure 8(a)(2) which requires “a short and plain statement of the claim showing that the pleader is entitled to relief and the grounds upon which it rests.”

In the Bell Atlantic case, the plaintiff sued under Section 1 of the Sherman Act, which prohibits any agreement in restraint of trade such as a price-fixing agreement.

The Supreme Court’s holding is important: “In applying these general standards to a § 1 claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.[4] And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and “that a recovery is very remote and unlikely.”

Comment: this is the first in a line of two Supreme Court decisions setting forth new and slightly more onerous pleading requirements for plaintiffs.  Under Bell Atlantic, the plaintiff must include more detail in the complaint – enough to set forth a plausible claim for relief.

Heightened Pleading Standards Under Twombly Case Do Not Apply To Affirmative Defenses

Weddle v. BAYER AG CORPORATION, Dist. Court, SD California 2012 – Google Scholar.


This is a decision of a district court in Southern California.  The court holds that the heightened pleading standards set forth in Bell Atlantic Corporation v. Twombly, 550 U.S. 554 (2007) do not apply to affirmative defenses.

An affirmative defense is a defense raised in the answer of a defendant.  The defendant first answers (denies or admits) the allegations in the complaint.  Then the defendant may add affirmative defenses that defeat plaintiff’s claim.  A classic affirmative defense is that the statute of limitations has expired.  Thus, even if what plaintiff said in his complaint was true, plaintiff would still lose because he filed his case after the deadline ran.

The court noted that Rule 8(c), which governs affirmative defenses, requires only the the defendant “affirmatively state” any affirmative defense.  In the court’s view, the purpose of an affirmative defense is to place the plaintiff on notice of the defense.  It is not designed to lay out the defendant’s position in detail.

Comment: there will certainly be more discussions of this issue in the future.  I will try to flag these issues and discuss them in this blog.

Edward X. Clinton, Jr.