The opinion of the court was delivered by: Grady, District Judge.
Plaintiffs have filed a motion for leave to amend the complaint
and add as defendants the United States Department of Justice
("DOJ"), the Federal Bureau of Investigation ("FBI"), the United
States, various federal officials or their estates, the City of
Chicago, and Cook County. For reasons discussed below, the
plaintiffs' motion is granted in part and denied in part.
Plaintiffs are given leave to add all defendants proposed in this
amendment except the United States, the FBI and the DOJ.
In addition, we find that the amendment as proposed by
plaintiffs is not in compliance with Rules 8(a) and 8(e)(1) of
the Federal Rules of Civil Procedure. We therefore require that
plaintiffs present a new amendment in accordance with this
We shall address separately the issues raised by the proposed
joinder of each distinct group of defendants: the local
government bodies, the individual federal officials or their
estates, and the federal government and federal agencies.
1. Local Governments — Section 1983
Plaintiffs seek to rejoin the City of Chicago and Cook County
as defendants in this action under 42 U.S.C. § 1983. Although
plaintiffs named these parties as defendants in the original
complaint filed in 1970, the City and County were dismissed in
1972, and again in 1975 from an amended complaint, under the rule
in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492
(1961), which held that municipalities were not "persons" subject
to suit under § 1983. The Seventh Circuit affirmed the 1972
dismissal in Hampton I, 484 F.2d 602 (1973), and plaintiffs did
not raise this issue on the second appeal in 1977 since Monroe
was still good law. Defendants now argue that plaintiffs' failure
to appeal the 1975 dismissal constitutes a waiver of their cause
of action against these defendants, notwithstanding the Supreme
Court's overruling of this portion of Monroe v. Pape in Monell v.
Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978). We hold that plaintiffs' failure to appeal
the 1975 dismissal does not bar them from now rejoining these
parties as defendants in light of Monell. We are unwilling to
penalize plaintiffs for not anticipating Monell.*fn1 See Burt v.
Abel, 585 F.2d 613, 617 (4th Cir. 1978).
The significant issues raised by plaintiffs' attempt to join
these parties at this stage of the proceedings is whether the
expiration of the five year statute of limitations bars
plaintiffs from asserting their cause of action against these
defendants. We note at the outset that the statute of limitations
problem exists only with regard to plaintiffs' suit against the
proposed defendants for injuries resulting from the "first"
conspiracy described by the Seventh Circuit — the planning and
carrying out of the raid. Hampton II, 600 F.2d 600, 621-22
(1979). The Seventh Circuit found that plaintiffs had made a
prima facie case of a "second" conspiracy — the post-raid legal
harassment of the plaintiffs, the coverup of evidence at the
first trial, and the concealment of the first conspiracy. In
addition, we believe plaintiffs allege an overall "continuing"
conspiracy which spans both the raid and the alleged coverup and
exists to this day.
The statutory period for filing a civil rights action is five
years from the date the action accrues. Beard v. Robinson,
563 F.2d 331 (7th Cir. 1977), cert. denied, 438 U.S. 907, 98 S.Ct.
3125, 57 L.Ed.2d 1149
(1978).*fn2 Where the conspiracy is "continuous" the limitations
period does not begin to run until the final overt act causing
injury is completed. Where the conspiracy has been concealed, the
cause of action does not accrue and the limitations period does
not begin to run until the date plaintiffs discover — or should
have discovered — the evidence which establishes the conspiracy
and links the defendants to the plaintiffs' injury. Smith v.
Nixon, 606 F.2d 1183, 1190 (D.C.Cir. 1979); Fitzgerald v.
Seamans, 553 F.2d 220, 228 (D.C.Cir. 1977). The conspiracy to
cover up evidence at the first trial can be said to have ended at
the earliest with the close of the trial in 1977; therefore,
plaintiffs would have until 1982 to join all defendants to claims
for injuries resulting from the coverup. The statute of
limitations with regard to the City's and the County's complicity
in the "continuing conspiracy" has not even begun to run, since
there has been no final overt act which would signal the
commencement of the limitations period. Thus, the only issue
remaining is whether the plaintiffs can join these parties as
defendants for injuries sustained as a result of the "first"
conspiracy — the planning and carrying out of the raid itself.
Rule 15 of the Federal Rules of Civil Procedure provides for
liberal allowance of amendments in order to meet the
"requirements of justice." In cases where the plaintiff's
amendment seeks to change the capacity or identity of the parties
after the applicable limitation period has run, Rule 15(c)
provides for relation back to the date of the original complaint
if the amendment meets certain requirements:
(1) The claim against the proposed defendant must
arise out of conduct set forth in the original
(2) The proposed defendant must have received such
notice of the institution of the original action
that it will not be prejudiced in maintaining its
defense on the merits.
(3) The proposed defendant "knew or should have known
that, but for a mistake concerning the identity
of the proper party, the action would have been
brought against [it]."
In applying Rule 15(c), as a whole, "courts have generally
examined the facts of the case to ascertain whether the allowance
of such amendment would be inconsistent with the notice
requirements inherent in such limitation." 3 Moore's Federal
Practice, ¶ 15.15[4.-1] p. 15-211-12. The rule is to be liberally
construed. DeMalherbe v. International Union of Elevator
Constructors, 449 F. Supp. 1335, 1354 (N.D.Cal. 1978). In cases
where plaintiffs have been allowed to add another defendant,
courts have looked for an extremely close relationship between
the original and added defendant, and lack of prejudice to the
added defendant. In addition, courts consider the original
intention of plaintiff, and whether plaintiff has a justification
for failing to name the proper party initially. See cases cited
in Moore's, supra, at ¶ 15.08, pp. 15-121-23, text
accompanying notes 19-21.
It is clear that the claims against the City and County arise
from the same conduct alleged against all defendants in the
original proceeding. Thus, Rule 15(c)(1) is satisfied.
It is also clear that the City and County, which were named as
defendants in the original proceeding and which plaintiffs tried
to join in 1975, had ample notice of the institution of this
action. Compare Hernandez Jimenez v. Calero Toledo, 604 F.2d 99,
103 (1st Cir. 1979) (proposed defendant
had no notice of the institution of the action and no ...