A recent decision out of the Northern District of Indiana confirms pleading allegations containing legal conclusions are allowed in the Seventh Circuit and that such legal conclusions must be admitted, denied, or responded to with an allegation of insufficient information, just as if they were factual allegations. It has been a common practice throughout the country to sidestep a response to a perceived legal conclusion with a “no response is required” with a qualified “to the extent a response is required” assertion.  

Judge Frankel addressed the Seventh Circuit's approach to the pleading of legal conclusions and other pleading defects. Regarding the latter, Judge Frankel refused to follow the offered case law from other circuits and noted that "courts in this circuit generally find that allegations containing legal conclusions must be admitted, denied, or responded to with an allegation of insufficient information, just as if they were factual allegations,” and that “failing to respond to an allegation on the ground that it states a legal conclusion is 'unacceptable'”. (Citing Donnelly v. Frank Shirey Cadillac, Inc., No. 05 C 3520, 2005 WL 2445902, at *1-3 (N.D. Ill. Sep. 29, 2005).)

Judge Frankel also made clear that qualified, “to the extent” responses will not suffice. “Qualified denials leave both the parties and the Court unclear as to whether a statement has been denied or simply was not responded to”, thus, “qualified denials may only survive scrutiny when it is clearly ascertainable what has been admitted and denied under Rule 8.” (Citations omitted).

Therefore, litigants in the Seventh Circuit should avoid the common practices in other circuits regarding the pleading of legal conclusions, use such pleading freedom to your advantage and take others to task for asserting a response “is not required” or includes a vague “to the extent” qualified response.