Berryhill v. Georgia-Pacific

Filing 23

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 1/3/2012:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Steve Berryhill,

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Plaintiff,
v.
Georgia-Pacific,
Defendant.

No. 11 C 5348

MEMORANDUM ORDER
Georgia-Pacific Corrugated II LLC (identified incorrectly in
the Complaint as “Georgia-Pacific,” but nevertheless referred to
here by that shorthand label solely for purposes of convenience)
has filed its Amended Answer and Affirmative and Other Defenses
(“ADs”) to the employment discrimination claim filed against it
by Steve Berryhill (“Berryhill”).

This sua sponte memorandum

order is occasioned by some problematic aspects of that
responsive pleading.
It should first be recognized that any defendant faces
problems where, as here, it is called on to respond to a pro se
filing, particularly one containing an extended narrative by the
unrepresented plaintiff.

Both the plaintiff and the defendant

(and, not incidentally, the assigned judge) are better served by
arming the plaintiff with representation by counsel if plaintiff
qualifies for that benefit.

In this case plaintiff Berryhill

qualified for in forma pauperis treatment, thus excusing his
payment of the $350 filing fee (and he would also have qualified

for the appointment of pro bono counsel to represent him if he
had identified reasonable but unsuccessful efforts to obtain
counsel on his own, as our Court of Appeals requires).

It is not

too late for him to do so, and this Court commends consideration
of that course of action to Berryhill in the interest of all
concerned.
Meanwhile Georgia-Pacific plus its counsel need to clean up
their own act as well.

For one thing, Answer ¶¶ 2 and 7 and a

good many of the responses to Berryhill’s extended narrative have
followed an invocation of the disclaimer prescribed by
Fed.R.Civ.P. (“Rule”) 8(b)(5) with the phrase “and, therefore,
denies the same.”

That is of course oxymoronic -- how can a

party that asserts (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 in accordance with Rule 11(b)?
Accordingly the quoted phrase is stricken wherever it appears in
the Answer.
As for Georgia-Pacific’s ADs, counsel has pursued an
everything-but-the-kitchen-sink approach that is necessarily
suspect and plainly calls for a return to the drawing board.
Counsel should first take a look at, and comply with, what this
Court has said in its App’x ¶ 5 in State Farm Mut. Auto. Ins. Co.
v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001) -- and without
seeking to be exhaustive, this memorandum order also draws the

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attention of counsel to a few particulars:
1.

AD 1, the essential equivalent of a Rule 12(b)(6)

motion, is ill-considered in its conclusory and
uninformative form.

If Georgia-Pacific wishes to raise the

claimed legal insufficiency of the Complaint, that must be
done in an informative and appropriately supported manner.
AD 1 is stricken.
2.

Defendants, like plaintiffs, must conform to the

notice-pleading approach called for in federal pleading.
Hence such blunderbuss assertions as are set out in ADs 2,
7, 8, 9, 12 and 13 are inadequate.

All are stricken, but

without prejudice to the possible reassertion of one or more
of them if and to the extent that they may be fleshed out
sufficiently to apprise Berryhill and this Court of the
foundation for such defenses.
3.

Counsel’s “to the extent” locution, employed in

various of the ADs, is a particularly telltale sign of an

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uninformative assertion. Once again any proposed AD must be
advanced on a more ascertainable basis.

___________________________________
Milton I. Shadur
Senior United States District Judge
Dated:

January 3, 20121

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This memorandum order was completed on December 27, but
this Court’s minute clerk will be away until January 3, 2012.
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