Robinson v. Potter et al

Filing 20

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 7/1/2009.Mailed notice(sct, )

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A S T E R N DIVISION

JE N N IF E R ROBINSON, P l a i n t i f f, v s. JO H N POTTER, et al., D e fe n d a n t s .

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C ase No. 08 C 6253

M E M O R A N D U M OPINION C H A R L E S P. KOCORAS, District Judge: T h is matter comes before the court on the motion of Defendant Steven Plotkin to dismiss the complaint of Plaintiff Jennifer Robinson pursuant to Fed. R. C iv. P. 12(b)(6). For the reasons set forth below, the motion is granted. BACKGROUND A ccording to the allegations of the complaint, which we must accept as true fo r purposes of this motion, Robinson is a former employee of the United States Postal Service. She has sued her former employer for alleged violations of the Age D iscrimination in Employment Act, the Americans with Disabilities Act, and Title V II of the Civil Rights Act of 1964 as well as retaliation. Plotkin is a private attorney who represented Robinson in an appeal before the Equal Employment

O pportunity Commission ("EEOC"). The complaint describes some interactions b etw e e n Plotkin and Robinson with regard to payment for his professional services and appears to express displeasure with Plotkin's representation. On February 11 and April 7, 2009, Robinson failed to appear for a previously scheduled court appearance. She was informed on both occasions that failure to appear could result in dismissal of her complaint. After the instant motion was filed, a schedule was set wherein Robinson was to respond by May 5, 2009. On that date, sh e requested and received an extension of her response date to May 21. The order admonished her that no further extensions would be allowed. Despite all these c au tio na ry statements regarding the consequences of failing to actively prosecute her c la im s, Robinson did not file a response. L E G A L STANDARD Fe d. R. Civ. P. 12(b)(6) evaluates the legal sufficiency of a plaintiff's complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, construe all allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To state a claim on which relief

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can be granted, a plaintiff must satisfy two conditions: first, the complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon which it rests; and second, its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level. EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007); see also Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1950 (2009); Bell A tlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007). The court will apply the notice-pleading standard on a case-by-case basis to evaluate w hether recovery is plausible. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th C ir. 2008). W ith these principles in mind, we turn to Plotkin's motion. D IS C U S S IO N A s stated above, Robinson has not responded to the instant motion or moved to amend the complaint to provide a set of allegations that would explain the basis fo r a claim against Plotkin under any of the federal statutes she has invoked in her complaint. Thus, she stands on her complaint as it currently appears, and the allega tion s it contains do not provide sufficient detail to apprise Plotkin of the nature of the claim she is making against him. Moreover, the failure to oppose a motion forfeits a party's ability to challenge the validity of the arguments made within it.

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S ee Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 2007); see also Cincinnati Ins. Co. v. E. Atl. Ins. Co., 260 F.3d 742, 747 (7th Cir. 2001). The e ffe ct of her silence is an acquiescence to Plotkin's positions that the complaint does not state a cognizable claim as to him. Accordingly, Plotkin's 12(b)(6) motion is granted and the portion of the complaint directed at him is dismissed. C O N C L U S IO N B ased on the foregoing, the motion to dismiss Steven J. Plotkin is granted.

Charles P. Kocoras U nited States District Judge D a te d : July 1, 2009

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