Bryant v. Beauty One Beauty Supply Co.

Filing 14

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
BERNARD L. BRYANT,
Plaintiff,
v.
BEAUTYONE BEAUTY SUPPLY CO.,
Defendant.

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No.

11 C 8382

MEMORANDUM ORDER
Beautyone Beauty Supply Co. (“Beautyone”) has filed its
Answer, coupled with an affirmative defense (“AD”), to the pro se
Complaint of Employment Discrimination brought against it by its
ex-employee Bernard Bryant (“Bryant”).

This memorandum order is

triggered by the problematic aspects (an understatement) of both
the Answer and the AD, the former on procedural grounds and the
latter in substantive terms.
As to the Answer, Beautyone’s counsel has violated the longestablished requirement of this District Court’s LR 10.1.

This

Court has had occasion to explain all too often the good sense
underpinning of that LR, and it is hardly necessary to do that
once again here.
As for Beautyone’s purported AD, which seeks dismissal of
Bryant’s Complaint on limitations grounds, it too is at odds with
good sense--and perhaps more importantly, it ignores a principle
confirmed almost a quarter century ago by our Court of Appeals
(Paulk v. Dep’t of

Air Force, 830 F.2d 79 (7th Cir. 1987)) and

confirmed by every other court decision known to this Court.

It

should be obvious to any lawyer, with or without research (though
there is no excuse for failure to engage in research), that an in
forma pauperis applicant--who by definition has no control over
the time when the assigned District Judge may act on his or her
application--is entitled to a tolling of the limitations period
once the applicant has timely tendered his or her complaint
together with the in forma pauperis application.
In this instance Bryant submitted his papers on November 22,
2011, comfortably within the statutory 90-day period after his
receipt of EEOC’s right-to-sue letter.

If Beautyone’s counsel

had troubled himself to look at the case docket, he would have
seen that.

Hence counsel’s invocation of a November 29 date as

the predicate for claiming untimeliness is flat-out wrong.1
Defense counsel’s errors could well call for the imposition
of sanctions--for example, the claimed AD is obviously at odds
with the objective good faith standard established by Fed. R.
Civ. P. (“Rule”) 11(b)(2), thus calling into play Rule 11(c)(3)
and (4).

But this Court opts instead for a more moderate

response, hereby ordering:
1.

that the Answer and AD are stricken, with leave

granted to file a replacement responsive pleading (excluding

1

On November 28 this Court had issued its memorandum order
granting Bryant’s In Forma Pauperis Application), which is why
Dkt. No. 8 properly reflects a November 28 filing date.
2

the AD, of course) on or before January 13, 2012;
2.

that Beautyone may not be charged for counsel’s

time and any expense involved in preparing and filing the
revised responsive pleading; and
3.

that defense counsel send a letter to Beautyone

advising it of the requirement set out in the preceding
paragraph and enclosing a copy of this memorandum order,
with a copy of that forwarding letter to be sent to this
Court (solely for informational purposes and not for filing,
of course).

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

January 3, 2012

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