Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 88 C 1790 -- James B. Zagel, Judge.
Bauer, Chief Judge, and Cummings and Easterbrook, Circuit Judges.
EASTERBROOK, Circuit Judge
Richard Lewellen filed this Bivens suit seeking damages on account of his arrest and detention by federal agents in January 1983. Under Anton v. Lehpamer, 787 F.2d 1141 (7th Cir. 1986), the plaintiff in an action filed in Illinois under 42 U.S.C. § 1983 has five years from the time of the events or two years from the Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (April 17, 1985), whichever comes first, to commence his action. Suits under Bivens must meet the same schedule. Bieneman v. City of Chicago, 864 F.2d 463, 467-70 (7th Cir. 1988). Our suit, filed on March 1, 1988, comes too late by either measure. The district court dismissed this suit as untimely, and we must decide whether Lewellen has an adequate excuse for the delay.
This is Lewellen's second suit arising out of the same events. In the first, Lewellen v. Dwyer, filed February 27, 1987, Lewellen's counsel attempted to serve the federal defendants by mailing the complaint under Fed.R.Civ.P. 4(c)(2)(C)(ii) to the Chicago office of the Drug Enforcement Administration. None of the defendants lives there. Unless the defendant returns an acknowledgment within 20 days (none did), counsel must resort to regular service. Three months later counsel tried to serve a subpoena requiring someone from the DEA to appear for a deposition and disclose the addresses of the named defendants. This effort to obtain information -- like any other deposition sooner than 30 days after service of process -- required leave of court. Fed.R.Civ.P. 30(a). Leave was not forthcoming, because counsel from the Department of Justice appeared and told the judge that the Department had established a mechanism for obtaining addresses and other information without the need for depositions. 28 C.F.R. §§ 16.21-16.29. (These regulations had been brought to the attention of Lewellen's lawyer, first by phone and then by letter, before the hearing.) Lewellen's lawyer disdained this method and did not try any other, such as requesting the marshal to serve the complaint. See Del Raine v. Carlson, 826 F.2d 698, 705 (7th Cir. 1987). He stood on his demand for a deposition until September 1987, but by then it was too late: the district court dismissed the action against the federal defendants on January 29, 1988, for failure to obtain service within 120 days per Fed. R.Civ.P. 4(j), finding that the failure to serve was "utterly inexcusable."
The Dwyer action remains pending against four employees of the state government. Instead of asking the district court to enter a partial final judgment under Fed.R.Civ.P. 54(b) in favor of the eight federal defendants so that Lewellen could appeal, counsel abandoned that suit (with respect to both state and federal defendants) and filed this one against the federal agents alone. Dismissals under Rule 4(j) are without prejudice, Powell v. Starwalt, 866 F.2d 964 (7th Cir. 1989), so principles of preclusion do not bar the way. The statute of limitations does. Lewellen tried to dodge this bullet by invoking § 13-208 of the Illinois Code of Civil Procedure, Ill.Rev.Stat. ch. 110 para. 13-208, which provides:
(a) [If], after the cause of action accrues, [the defendant] departs from and resides out of the state, the time of his or her absence is no part of the time limited [sic] for the commencement of the action.
(b) For purposes of subsection (a) of this Section, no person shall be considered to be out of the State . . . during any period when he or she is subject to the jurisdiction of the courts of this State with respect to that cause of action pursuant to Sections 2-208 and 2-209 [the long-arm statute] . . . or any other statute authorizing service of process which would subject that person to the jurisdiction of the courts of this State. If a person files an action in a court of this State and attempts to secure service of process upon a defendant pursuant to a statute referred to in the preceding sentence, but does not obtain service of process upon such defendant, such defendant shall not be considered to be subject to the jurisdiction of the courts of this State at the time such action was filed, for purposes of the preceding sentence of this section. . . .
In Bivens actions, as in suits under § 1983, the period of limitations comes from state law. When state law supplies the period of limitations, it also supplies associated tolling and extension rules. Wilson, 471 U.S. at 269; Board of Regents v. Tomanio, 446 U.S. 478, 484-86, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980); Cange v. Stotler & Co., 826 F.2d 581, 599 (7th Cir. 1987) (concurring opinion) (collecting cases); Del Raine, 826 F.2d at 706-07. Section 13-208 is such a tolling rule, Lewellen maintains. Because he did not get service on the defendants in Dwyer, he insists that the period of limitations has been indefinitely tolled.
The district judge did not agree and dismissed the suit as untimely., (N.D.Ill. 1988). He concluded that Rule 4 is not a "statute referred to in the preceding sentence" for purposes of the last sentence of § 13-208, because Rule 4 does not provide an independent mechanism for serving out-of-state defendants but instead directs the plaintiff to use the mechanisms provided by state law. Fed.R.Civ.P. 4(e). Lewellen disputes this conclusion, but we bypass all debate about the meaning of § 13-208, a statute the district judge found "delphic". The defendants pressed on the district court the contention that § 13-208 does not apply at all in Bivens actions. Although the district court did not address the point, it has been raised on appeal and is a ground on which to Bum the judgment. Massachusetts Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479, 48 L. Ed. 2d 784, 96 S. Ct. 2158 (1976); Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 439 (7th Cir. 1987).
Federal courts resort to state statutes of limitations when there are gaps in federal law. The reference is compulsory in litigation under § 1983, see 42 U.S.C. § 1988, and inevitable in Bivens cases. Because Congress did not create the right of action, it also did not enact ancillary rules such as statutes of limitations. Bieneman holds that periods of limitations in actions based directly on the Constitution track those under § 1983, so the district court here properly turned to Illinois law.
How much state law is absorbed? Wilson, Tomanio, and similar cases say that the tolling rules come with the period of limitations. These cases
are best explained not by 42 U.S.C. § 1988 . . . but by the inseparability of the time period itself from some (though not necessarily all) other provisions of a state's limitations law. See Hemmings v. Barian, 822 F.2d 688, 691 (7th Cir. 1987). The actual generosity of a statute of limitations depends not only on the nominal period within which suit must be brought but on provisions allowing that period to be extended for various reasons, so that if the federal court borrows just the period it may in fact be giving plaintiffs more or less time than the state that enacted the borrowed statute would have thought appropriate in the circumstances.
Del Raine, 826 F.2d at 706. Doctrines such as laches, tolling, and estoppel affect the length of time available to sue. They are integral to the complex of rules that makes up the entire period of limitations -- ...