In Glenn v. McDavid, 316 Ill. App. 130, 44 N.E.2d 84 (3d
Dist. 1942), the plaintiff filed a claim against a decedent's
estate on a Colorado cause of action governed by a six year
Colorado statute of limitations. The court stated that unless
there was a savings clause under Colorado law, the suit was
time-barred in Illinois by section 21.*fn1 Finding such a
provision, the court allowed the action to continue.
From these two cases, the court concludes that if confronted
with the issue, an Illinois court would borrow Florida's
tolling provisions as well as its limitations statute. In both
cases, the Illinois tribunal examined the foreign state's
statutes to determine whether the foreign cause of action
survived the limitations period. The essential question is
thus whether the foreign cause of action is barred by the laws
of its state of origin. Since it has been determined that
Norman's right of action is not barred by Florida law, indeed
the statute of limitations never began to run under Florida's
tolling provision, it is likely that an Illinois court would
permit the action to be maintained.
Kal's second major argument is that this suit should be
barred under the doctrine of laches. In advancing this
position, Kal states that due to the passage of time, and as
a result of Norman's litigation strategy, it will be
impossible to reconstruct important factual events which
affect Kal's liability to Norman. Specifically, Kal has
proffered a transcript of testimony given by Norman on October
27, 1978, which indicates an inability on the part of
plaintiff to recall whether his wife had signed the guaranty
of the letter of credit. Kal attributes this loss of memory to
Norman's failure or refusal to promptly institute suit against
Kal in a proper forum, and maintains that the memory lapse
will prejudice defendant's ability to establish his
affirmative defense that Norman altered the guaranty after Kal
had signed it by deleting the page on which plaintiff's wife
was to sign as a co-guarantor.
The court rejects this contention for several reasons.
First, Kal cites Fla. Stat. § 95.11(6), a codification of the
doctrine of laches, which provides that "[l]aches shall bar any
action unless it is commenced within the time provided for
legal actions concerning the same subject matter. . . ." Since
it has already been determined that this action was properly
commenced under the limitations laws of both Illinois and
Florida, this statute is not applicable. Second, although Kal
may have established that Norman's memory of certain events had
faded by October, 1978, Kal has not shown that Norman's memory
would have been any better had plaintiff commenced this action
in Illinois immediately upon the accrual of his cause of
action. Norman's diminution of recall between November, 1976,
when the cause of action allegedly arose, and October, 1978,
when his testimony was taken, is a material question of fact
which precludes summary judgment in favor of Kal. Fed.R.Civ.P.
56(c). Kal has not shown that Norman unreasonably delayed in
bringing this action, or that he has been materially prejudiced
by any delay. Murphy v. Rochford, 55 Ill. App.3d 695, 13
Ill.Dec. 543, 371 N.E.2d 260 (1st Dist. 1977).
In conclusion, the court finds that this action was timely
filed under either Illinois or Florida law. In addition, the
doctrine of laches is not available to Kal in this suit.
Therefore, defendant's motion for summary judgment is denied.