the equivalent of a tolling provision and (2) that at least one
day of the 90-day period had remained open when Marshall first
lodged the Complaint with the Clerk's Office. Accordingly AD 2
of each count is stricken.

AD 3 to each count poses fewer complexities. It too employs
the totally uninformative “to the extent” locution. If Sun-
Times' counsel truly regards some specific aspects of Marshall's
claims as barred by limitations, counsel must provide chapter and
verse in that respect so that both Marshall's lawyer and this
Court will know what is being placed in issue. Accordingly all
of the present AD 3s are stricken, albeit without prejudice to
their potential reassertion in proper form.

Each AD 4's inclusion of the “to the extent” language is
even more meaningless--of course a complaint “should be
dismissed” to the extent that it is vulnerable under Rule
12(b) (6). Hence each AD 4 is stricken as legally frivolous.

Each AD 5 poses a different problem: It runs afoul of the
basic concept of an AD as prescribed by Rule 8(c) and the caselaw

implementing it--see, e.g., App. §5 to State Parm Mut. Auto. Ins.

Co. v. Riley, 199 F.R.D. 276, 279 (N.D. I11. 2001). Sun-Times’
claim of its “good faith efforts to comply with” federal anti-
discrimination legislation contradicts such allegations of the
Complaint as Count I 4935, Count II 443, Count III 449 and Count Vv

462 (as for Count IV, its incorporation by reference of all


has dealt with a similar situation. It held that lodging a
complaint for filing, together with an application for leave to
proceed in forma pauperis, brings what was then this District
Court's Local Rule 11D (now its LR 3.3) into play. LR 3.3(d)
specifies that the granting of such an application after the
expiration of the time within which a complaint must be filed
causes that complaint to be deemed to have been filed as of the
time the Clerk received the complaint (in this instance that
would be December 24, 2002). Where an in forma pauperis
application is instead denied, the situation is governed by LR
3.3(e), which specifies (emphasis added):

If the required fees are not paid within 15 days of the

date of such notification, or within such other time as

may be fixed by the court, the clerk shall notify the

judge before whom the matter is pending of the

nonpayment. The court may then apply such sanctions as

it determines necessary including dismissal of the
action.

In this instance, as already indicated, this Court fixed
January 30, 2003 as the time by which the fee had to be paid. In
fact Marshall paid the fee a day later, but the Clerk of Court
understandably gave this Court no notification to that effect.
This Court states that if any such notification had been given,
it would not have imposed any sanction--let alone the ultimate
sanction of dismissal. Instead it would have treated the action
as timely filed, on the premise (1) that this Court's order

granting Marshall additional time to pay the fee was essentially


earlier Complaint paragraphs does the job). Every AD 5 is
therefore also stricken, with Sun-Times' denial of the cited
paragraphs of the Complaint already having placed those

allegations in dispute.

Milton I. Shadur
Senior United States District Judge

Date: May 28, 2003


Minuyg Order Fon (0:97)

United States District Court, Northern District of Illinois

Namcotasient wis | Milton. Shadur | Stine age ine
CASE NUMBER 02 C 9365 DATE 5/28/2003
CASE Jean Y. Marshall vs. Chicago Sun-Times, Inc.
TITLE
Un the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. ]
DOCKET ENTRY:
qd) ia Filed motion of [ use listing in “Motion” box above.]
2) oO Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer brief due__.
4) oO Ruling/Hearing on setfor____—_at
6 Oo Status hearing{held/continued to] [set for/re-set for] on____set for___at
(6) (a) Pretrial conference[held/continued to] [set for/re-set for}on__—s set for at
(7) QO Trial[set for/re-set for] on__ at
(8) oO [Bench/Jury trial] [Hearing] held/continuedto__at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) CO Local Rule 41.1 COFRCP41(ay(1) O FRCP41(a)(2).

ao) [Other docket entry] | Enter Memorandum Opinion and Order. Defendant’s affirmative defenses
2 through 5 are stricken.

(11) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
4 Number
No notices required. nitocygasn Ses
Wo | Notices mailed by judge’s staff. MA VG f
Notified counsel by telephone. dase dociyhed }
Docketing to mail notices. :
Mail AO 450 form. docking xoputy initials: i)
Copy to judge/magistrate judge. ‘
sifsr200s
date mated notice
courtroom bit 7
SN deputy’s sn a
initials

Date/time received in
central Clerk's Office nating depury nals



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEAN Y. MARSHALL,

Plaintiff, No. 02 C 9365

Judge Presiding

)
)
)
)
Vv. ) Hon. Milton I. Shadur?*
)
CHICAGO SUN-TIMES, INC., )

)

)

Defendant.

MEMORANDUM OPINION AND ORDER

Chicago Sun-Times, Inc. (“Sun-Times”) has filed its Answer
and Defenses to the First Amended Complaint (“FAC”) brought
against it by its employee Jean Marshall (“Marshall”). Marshall
has asserted a number of claims against Sun-Times, with the PAC's
five counts ringing changes on her various charges of employment
discrimination. This opinion is issued sua sponte because,
although Sun-Times' Answer is fully responsive to the FAC, almost
all of its affirmative defenses (“ADs”) are flawed and must be
stricken.

AD 2 to each count in the FAC reads:

Plaintiff's claims are barred to the extent that

Plaintiff has failed to meet the statutory and/or y/)

jurisdictional prerequisite to suit. Up)
That statement is of course purely tautological rather than Y 9

informative--its “to the extent” hedge does nothing at all toward os

> Sun-Times' counsel ought to be careful in more ways than

the text of this opinion discusses: the name is “Shadur,” not
“Sharon” (as the Answer has it). This Court has enough
difficulty managing its own calendar without undertaking the
problems of the State of Israel.


satisfying the modest requirements of notice pleading that the
Rules of Civil Procedure (“Rules”) impose on defendants as well
as plaintiffs. That alone calls for the striking of each AD 2,
and this Court so orders.

But because of the possibility that Sun-Times' counsel might
seek to reassert such a contention in a more informative fashion,
this opinion will go on to address the substantive issue
involved. As one of the exhibits to Marshall's original pro se
Complaint reflects, the EEOC's right-to-sue letter was issued on
September 25, 2002 and was directed to Marshall by certified
mail. Although Marshall (originally acting pro se) filled in the
form Complaint 48(b) as though she received the letter on that
same September 25 date, that obviously cannot be the case with a
mailed document--and even if she received the letter on the very
next day (certainly an optimistic assumption), her delivery of
the Complaint to this District Court's Clerk's Office on
December 24, 2002 would have been the 89° day thereafter--one
day within the statutory 90-day time limit.

Marshall initially sought leave to proceed in forma
pauperis, but this Court denied that application because she
could afford to pay the $150 filing fee (she was still employed
by Sun-Times), but it granted her until January 30, 2003 to do
so. In fact she paid the entire fee on January 31.

Williams-Guice v. Bd. of Educ., 45 F.3d 161 (7% Cir. 1995)