IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID MURPHY, )

)

Plaintiff, )

)

v. ) No. 11 C 7995

)

HOME DEPOT U.S.A., INC., )

)

Defendant. )

MEMORANDUM ORDER

Home Depot U.S.A., Inc. (“Home Depot”) has timely removed

this action by its ex-employee David Murphy (“Murphy”) from its

place of origin in the Circuit Court of Cook County to this

District Court, invoking diversity of citizenship as the

predicate for federal jurisdiction. Although the Notice of

Removal (“Notice”) ultimately turns out to be appropriate, one

odd aspect of it calls for brief comment.

As Notice ¶3.c correctly refers to Murphy’s ad damnum claim

as simply reading “in excess of $50,000,” the need to raise that

to the over-$75,000 amount in controversy for diversity

jurisdictional purposes calls into play the familiar principle

that a defendant’s good faith belief suffices for that purpose. 

In this instance Complaint Count I advances a cause of action for

intentional infliction of emotional distress, and if that were

the only gravamen underlying Murphy’s lawsuit a serious question

could be raised as to the objective bona fides of a purported

$75,000-plus amount in controversy in light of the tight

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constraints that have been imposed on that theory of recovery by

the Illinois Supreme Court and the Appellate Courts below it.

But Murphy has added another string to his bow in the form

of the Complaint’s Count III allegations of wilful defamation and

the grievous consequences alleged to have been suffered by

Murphy. Those allegations, including a nonfrivolous claim for 1

punitive damages, suffice to provide a plausible figure above the

jurisdictional floor.

Accordingly this Court is contemporaneously issuing its

customary initial scheduling order. In the meantime, however,

Home Depot’s recently filed Answer must be stricken (with leave

to replead, of course) because of its failure to conform to the

requirements of this District Court’s LR 10.1. When Home Depot’s

counsel return to the drawing board to craft an Amended Answer

for filing on or before November 29, 2011, particular attention

must be paid to the problems with the purported affirmative

defenses (“ADs”) that follow the responsive Answer:

1. AD 1, which is the equivalent of a Fed. R. Civ. P.

(“Rule”) 12(b)(6) motion, is at odds with the Rule 8(c)

concept that Murphy’s allegations must be taken as true for

AD purposes (see App’x ¶5 to State Farm Mut. Auto. Ins. Co.

v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001)). Although

 There is no Count II in the Complaint, so only Counts I 1

and III require examination.

2

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Count I might perhaps be suspect on that score, Count III

survives in those terms. AD 1 is therefore stricken without

leave to replead.

2. That is true as well as to ADs 5, 6 and 7. Again

those ADs are stricken without leave to replead.2

3. ADs 2, 3 and 4 insufficiently conform to the

principles of notice pleading that are incumbent on

defendants as well as plaintiffs in the federal system. If

repeated, they must be fleshed out in the new responsive

pleading that has been ordered here.

4. Home Depot’s final “Reservation of Rights”

paragraph is really meaningless. If, as and when its

counsel view additional pleadings as called for by reason of

the case’s development, it will have to seek leave of court

for that purpose--the antithesis of a claimed “right.”

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: November 14, 2011

 Home Depot loses nothing by this ruling, because it has 2

placed matters in issue by its denial of Murphy’s allegations in

those respects.

3

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