Before the Court is defendants' motion to dismiss the amended
complaint for compensatory damages and declaratory relief.
Plaintiff alleges violations of the Civil Rights Acts of 1866 and
1871, 42 U.S.C. § 1981, 1982, 1983, and pendent state law
theories. Jurisdiction in this Court is based on Title 28, United
States Code, Section 1331.
Defendants argue, among other things, that plaintiff's claims
are time barred by the two-year Illinois statute of limitations
imposed by the Supreme Court's decision in Wilson v. Garcia, ___
U.S. ___, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). For the reasons
stated herein, the Court denies defendants' motion to dismiss all
counts of plaintiff's amended complaint.
The following facts are alleged in plaintiff's amended
complaint. For purposes of this order they are considered to be
Since 1973 plaintiff has attempted to build a group of
apartment buildings. Plaintiff engaged subcontractors to perform
the construction work in 1977. Three of these subcontractors were
black. After the defendants discovered the subcontractors' race,
the defendants harassed plaintiff by initiating needless zoning
and building restrictions in an attempt to prevent completion of
From 1980 to 1982, defendants withheld police protection from
the construction area and withheld zoning decisions with the
intent to reduce the value of plaintiff's property. Plaintiff
initiated this litigation in March 1985 based on his belief that
his civil rights had been violated.
I. § 1983 Statute of Limitations
Because the Reconstruction Civil Rights Acts do not contain a
specific statute of limitation governing 42 U.S.C. § 1983
actions, the Court is obligated to adopt the forum state's
statute of limitation as federal law. Smith v. City of
Pittsburgh, 764 F.2d 188 (3d Cir. 1985). In 1977, the Seventh
Circuit held that all claims founded on the Civil Rights Acts are
governed by the five-year Illinois statute of limitations
applicable to all statutory causes of action that do not contain
their own limitations periods. Beard v. Robinson, 563 F.2d 331,
338 (7th Cir. 1977).
In 1985, however, the Supreme Court characterized all § 1983
actions uniformly as personal injury actions and applied to §
1983 actions the state statute of limitations governing personal
injury actions. Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938,
85 L.Ed.2d 254 (1985). As a result of Wilson, the appropriate
limitation period for § 1983 actions brought in Illinois is the
two-year personal injury claim limitation provided by § 13-202 of
the Illinois Code of Civil Procedure.
The issue before the Court is whether Wilson should be applied
retrospectively to bar plaintiff's claim, or whether the
five-year limitation chosen in Beard should be applied to allow
maintenance of plaintiff's claim. The parties agree that
plaintiff's action was timely filed under the then-applicable
Seventh Circuit decision in Beard. The parties also agree that
plaintiff's action would be untimely under a retrospective
application of the Wilson decision because it was filed more than
two years after the events surrounding plaintiff's unsuccessful
attempt to develop his property.
The Supreme Court addressed the issue of retrospective
application of changes in the law of statutes of limitations in
Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355,
30 L.Ed.2d 296 (1971), applying a three-part analysis:
First, the decision to be applied nonretroactively
must establish a new principle of law, either by
overruling clear past precedent on which litigants
may have relied, or by deciding an issue of first
impression whose resolution was not clearly
foreshadowed. Second, it has been stressed that "we
must . . . weigh the merits and demerits in each case
by looking to the prior history of the rule in
question, its purpose and effect, and whether
retrospective operation will further or retard its
operation." Finally, we have weighed the inequity
imposed by retroactive application, for "[w]here a
decision of this Court could produce substantial
inequitable results if applied retroactively, there
is ample basis in our cases for avoiding the
`injustice or hardship' by a holding of
(Citations omitted). Plaintiff's action must be analyzed in light
of these factors.
A. The Change from Prior Law
Wilson established a new principle of law when it effectively
overruled a long line of decisions by the Court of Appeals for
the Seventh Circuit, starting with Beard. In the case before this
Court, plaintiff filed his suit in March 1985, shortly before
Wilson was decided. The Seventh Circuit decision in Beard
represented the law governing this case during the five years
plaintiff was repeatedly injured and for the ensuing two and one
half years until plaintiff instituted his lawsuit. It cannot be
assumed that plaintiff could have foreseen that this consistent
interpretation of Beard would be overturned. Plaintiff's
reasonable reliance upon the Seventh Circuit's clear precedent in
waiting to file suit should not result in a barred claim by
retrospective application of Wilson. The Court "should not
indulge in the fiction that the law now announced has always been
the law and, therefore, that those who did not avail themselves
of it waived their rights." Griffin v. Illinois, 351 U.S. 12, 26,
76 S.Ct. 585, 594, 100 L.Ed. 891 (1955).
Not all courts are in agreement as to nonretrospective
application of Wilson. The Court of Appeals for the Third Circuit
applied Wilson retrospectively in Smith v. City of Pittsburgh,
764 F.2d 188 (3d Cir. 1985). A detailed analysis of Smith is
enlightening. In Smith, plaintiff Smith brought a § 1983 racial
discrimination claim alleging he was discharged from his
employment in violation of the due process clause of the
Fourteenth Amendment. The then-existing statute of limitations
required Smith to file his claim within six years of the action's
accrual; he filed within two and one half years. Defendants
argued that the statute of limitations should be two years for
due process violations absent breach of contract allegations. The
district court rejected defendants' claim that the complaint was
untimely, holding that the applicable state statute of
limitations was six years.
The Third Circuit reversed the district court and granted
summary judgment to defendants. The court held that Wilson should
be applied retrospectively to Smith's claim thus requiring
application of the two-year state personal injury limitation.
Since Smith filed after the two-year period, the court ruled that
Smith's claim was time barred.
The holding in Smith will not be followed because the key facts
in Smith are
distinguishable from the facts before this Court. In Smith, the
plaintiff filed suit in the Third Circuit where application of
the statute of limitations had been erratic and inconsistent,
without clear precedent on which the plaintiff could have
reasonably relied in waiting to file suit. The Third Circuit
placed great emphasis on the absence of any definitive holding
within the circuit and the existence of divided district courts
within the circuit. Noting that Chevron Oil Co. v. Huson,
404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), only barred
retrospective application when a change from prior law occurs,
the Smith court applied Wilson retrospectively. The Smith court
believed that the change from prior law factor in Chevron was not
implicated in the absence of clear prior precedent. The Third
Circuit reasoned that the absence of definitive interpretations
espousing a limitation longer than two years and the district
court's support for the two-year limitation should have put Smith
on notice that it would not have been reasonable to wait more
than two years to file suit.
The existence of a prior precedent consistently applied in the
Seventh Circuit distinguishes the facts before the Court from the
facts present in Smith. Because the Seventh Circuit consistently
applied the five-year limitation, Wilson effectively overruled
clear past precedent. Under the Chevron analysis, retroactivity
is inappropriate where past precedent on which the parties may
have relied is overruled. The existence of clear precedent in the
Seventh Circuit applying a five-year limitation period should not
have put plaintiff on notice that it would be unreasonable to
wait more than two years from the accrual of the action. The
cases are therefore distinguishable by the consistency in the
application of the longer time limitation.
B. Purposes of Wilson v. Garcia
The second step in the Chevron analysis is to determine whether
the purposes of the new rule will be furthered or retarded by
retrospective application. The purposes of Wilson were to promote
uniformity and to minimize unnecessary litigation. These purposes
are not retarded by following the previously acceptable Seventh
Circuit five-year limitation rule in this case because a uniform
approach already existed within the circuit. Even the Smith court
could not "say that the policies referred to in Wilson v. Garcia
militate clearly in favor of retrospective application." 764 F.2d
at 196 (3d Cir. 1983). Applying the facts, the Court cannot say
that retrospective application barring plaintiff's claim would
either hamper or promote the goals set out in Wilson.
C. The Equities of Retrospective Application
Finally, the Court must consider whether retrospective
application would impose harsh, unjust, or inequitable results.
The Court believes that it would under the circumstances of this
case. In Chevron, the Supreme Court stated that where "a
plaintiff could have reasonably waited to file suit under the
established prior rule, it would be inequitable to say he had
slept on his rights because of a later and unforeseeable Supreme
Court decision." 404 U.S. at 108, 92 S.Ct. at 356. From 1977
until the time this claim was filed, the Court of Appeals for
this Circuit had clearly and consistently applied the five-year
limitation period for § 1983 claims. Plaintiff justifiably relied
on those cases in filing his suit. It therefore cannot be said
that plaintiff slept on his rights when his action was timely
under the law in effect at the time.
Accordingly, the Court concludes that the Supreme Court's
approach in Wilson should not be retroactively applied to bar
plaintiff's claim because plaintiff justifiably relied upon the
Seventh Circuit's prior precedent, the purposes of Wilson would
not be retarded, and retrospective application would impose an
II. § 1981 and § 1982 Claims
Defendant argues that Wilson mandates that the two-year statute
of limitation that applies to § 1983 claims extends with
equal force to time-bar claims brought under § 1981 and § 1982.
The Court finds it unnecessary to make such an extension
since plaintiff's claims also would not be time barred even
assuming that the two-year personal injury limitation applies to
§ 1981 and § 1982 claims. Plaintiff's claims would not be barred
because the Court holds that Wilson should not be retrospectively
applied to bar claims brought in the Seventh Circuit. For the
same reasons Wilson should not retrospectively apply to § 1983
claims, the Court also holds that the two-year limitation imposed
in Wilson does not bar plaintiff's § 1981 and § 1982 claims.
The doctrine of laches is grounded upon the inequity of
permitting enforcement of a claim where some change in
circumstances has occurred which would make enforcement unjust.
Harris v. Anaconda Aluminum Co., 479 F. Supp. 11, 20 (N.D.Ga.
1979). Laches is comprised of two elements: inexcusable delay by
a plaintiff in asserting his claim, and undue prejudice to a
defendant as a result. Id.; Akers v. State Marine Line, Inc.,
344 F.2d 217 (5th Cir. 1965). The existence of the defense is left to
the discretion of the trial court. Gardner v. Panama R.R.,
342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31 (1951).
Neither of the laches elements are present in the instant case.
Plaintiff justifiably relied upon the then existing five-year
limitation period. Plaintiff's decision to wait two and one half
years from the accrual date to file was an acceptable tactical
decision. The Court cannot say plaintiff slept on his rights.
Moreover, defendants do not support their assertion that they
were unduely prejudiced by plaintiff's decision to wait two and
one half years. Defendants' simple, single sentence assertion
that the delay prejudiced them is not compelling. Thus, the Court
rejects defendants' laches defense.
IV. Failure to State a Cause of Action
The guidelines used in considering a motion to dismiss a
complaint for failure to state a claim are well defined. On a
motion to dismiss under Federal Rules of Civil Procedure, a
complaint must be construed in the light most favorable to the
plaintiff, the allegations thereof being taken as true. Mathers
Fund, Inc. v. Colwell, 564 F.2d 780, 783 (7th Cir. 1977). A
complaint should not be dismissed unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim that would entitle him to the requested relief. Cruz v.
Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263
(1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
101-02, 2 L.Ed.2d 80 (1957). The Court finds that plaintiff has
alleged sufficient facts to support his claim.
Plaintiff was required to allege two factors in order to state
a cause of action under § 1983: (1) some person has deprived him
of a federal right; (2) the person who has deprived him of that
right acted under color of state law. Gomez v. Toledo,
446 U.S. 635, 638, 100 S.Ct. 1920, 1922, 64 L.Ed.2d 572 (1980). Plaintiff
fulfilled these requirements. Plaintiff specifically pleaded the
names of certain persons who allegedly deprived him of his
constitutional rights. In addition, plaintiff alleged these
persons deprived him of his constitutional rights by, among other
things, depriving plaintiff of equal police protection and
initiating policies establishing arbitrary and capricious
procedural barriers in building and zoning requirements in order
to limit the number of black condominium owners. Plaintiff also
clearly pleaded that these persons acted in their official
capacities thus under color of state law.
Plaintiff's complaint also sufficiently pleads a § 1982 action.
§ 1982 prohibits racial discrimination in the sale and rental of
real property. Southend Neighborhood Improvement Association v.
County of St. Clair, 743 F.2d 1207, 1210 (7th Cir. 1984).
Defendants argue that the complaint is insufficient because it
does not allege defendants' conduct resulted in a denial of
housing opportunities to blacks. A careful reading, however,
reveals that plaintiff alleges in paragraph 8 that defendants'
actions effectively controlled and limited the number of black
condominium purchases by reducing the construction of new
apartments. This allegation states a cause of action under §
defendants' motion to dismiss for failure to state a claim is
V. Jurisdiction Over Pendent State Law Claims
In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130,
16 L.Ed.2d 218 (1966), the Supreme Court allowed state claims
lacking federal jurisdiction to be adjudicated with closely
related federal claims. Defendants before this Court argue that
under Gibbs the dismissal of plaintiff's civil rights claims
should result in the dismissal of the pendent state claims. Such
a dismissal would have been appropriate if the Court had
dismissed the civil rights claims. In light of the Court's
decision to deny dismissal of these claims, defendants' argument
is unpersuasive. As a result, the state claims will be
adjudicated with the federal civil rights claims.
The plaintiff's amended complaint is not barred by the statute
of limitations nor the doctrine of laches. Moreover, plaintiff's
complaint states a cause of action. Accordingly, defendants'
motion to dismiss is denied.
IT IS SO ORDERED.
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