United States District Court, Northern District of Illinois, E.D
February 3, 1981
DIANE MARIE HERNAS ET AL., PLAINTIFFS,
CITY OF HICKORY HILLS ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs Diane, Frank and Jadwiga Hernas have filed this
civil rights action under 42 U.S.C. § 1983 and various portions
of the Bill of Rights (also asserting pendent claims of common
law replevin and negligence) against the City of Hickory Hills,
its Mayor Ervin Kozicki ("Kozicki") and various named and unnamed
members of its Police Department and the Roberts Park Fire
Protection District. Kozicki has counterclaimed against Diane
Hernas ("Hernas") charging slander,*fn1 and Hernas has moved to
dismiss that counterclaim. For the reasons stated in this
memorandum opinion and order, Hernas' motion is denied.
In substantial part Hernas' motion is simply misconceived.
Hernas points to a series of claimed deficiencies based on
Kozicki's failure to meet requirements of pleading and proving
slander under Illinois law. While this Court will look to
Illinois law on
substantive matters relating to the counterclaim, the same is not
true as to pleading requirements. Erie Railroad Co. v. Tompkins,
304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), held that in
diversity cases federal courts must apply state substantive law,
but retain federal rules for matters of procedure. That same
concept operates whenever state law provides the rule of
decision, irrespective of the source of federal jurisdiction.
Commissioner of Internal Revenue v. Bosch, 387 U.S. 456, 461, 87
S.Ct. 1776, 1780, 18 L.Ed.2d 886 (1967). Thus the identical
doctrine applies to pendent state claims in a cause of action
based on a federal question, 1A Moore's Federal Practice ¶
0.305 at 3050-51.
Under the principles developed in Erie and its progeny, matters
of pleading are governed by the Federal Rules of Civil Procedure
regardless of the source of substantive law. Hanna v. Plumer,
380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); 5 Wright and
Miller, Federal Practice and Procedure: Civil § 1204. Kozicki
therefore does not have to meet the strict pleading requirements
for slander under Illinois law. Flood v. Margis, 322 F. Supp. 1086,
1095 (E.D.Wis. 1971), vacated on other grounds,
461 F.2d 253 (7th Cir. 1972). Kozicki's counterclaim clearly meets the
federal requirement of "a short and plain statement of the
claim." Fed.R.Civ.P. 8(a).
Hernas' motion to dismiss poses a more serious problem
involving the one-year statute of limitations for defamation
actions, Ill.Rev.Stat. ch. 83, § 14. Because the alleged
defamatory statement was published about June 29, 1979 and the
counterclaim was not filed until August 28, 1980, more than one
year later, Kozicki's counterclaim will be barred unless it comes
within the provisions of Ill.Rev.Stat. ch. 83, § 18 ("Section
A defendant may plead a set-off or counter claim
barred by the statute of limitation, while held and
owned by him, to any action, the cause of which was
owned by the plaintiff or person under whom he
claims, before such set-off or counter claim was so
barred, and not otherwise . . .
As a threshold matter it must be determined whether Erie
requires a federal court to apply Section 18. That depends in
turn on whether Section 18 is a matter of substance or procedure.
Statutes of limitations involve matters of substance and must be
applied by federal courts where state law controls a cause of
action. Guaranty Trust Co. of New York v. York, 326 U.S. 99
S.Ct. 1464, 89 L.Ed. 2079 (1945). Section 18 reflects a
legislative determination that in certain situations the Illinois
statute of limitations should not apply. Such a policy judgment
differs neither in kind nor in degree from the legislative
decision to create the statute of limitations itself. Accordingly
Section 18 represents a matter of substance, to be applied by
federal courts whenever state law controls the relevant cause of
Hernas argues that Section 18 does not save Kozicki's
counterclaim because it applies only when the counterclaim is
directly related to the plaintiff's claim.*fn2 But the language of
Section 18 belies that interpretation. It literally extends to
all counterclaims, and under Illinois practice a counterclaim
need not be related to the original claim. Johnson v. Moon,
3 Ill.2d 561, 121 N.E.2d 774 (1954).*fn3 Hernas was unable to offer
any case rejecting the
applicability of Section 18 based on the content of a
counterclaim. Kozicki's counterclaim is accordingly preserved
under Section 18. See, Kuh v. Williams, 13 Ill.App.3d 588,
301 N.E.2d 151 (1st Dist. 1973).
Hernas' motion to dismiss Kozicki's counterclaim is denied.
Hernas is ordered to file her reply to that counterclaim on or
before February 17, 1981.