In fact, the property which is the subject of the JPR partnership was leased from Newpar. (PPM at 19-22). Accordingly, a letter informing the JPR partners of problems encountered with the Newpar property per se informed them of problems with the JPR property. The relationship of Newpar to JPR would have been obvious to anyone who took the time to even briefly review the PPM.
Equitable tolling is not available to toll a statute of limitation until a cause of action is presented in its entirety to the complaining party; rather, it tolls the statute of limitations only until the party has enough facts to put him on notice of his potential claim. Crowell v. Bilandic, 81 Ill.2d 422, 411 N.E.2d 16, 44 Ill.Dec. 110 (1980) (petitioners could not claim fraudulent concealment sufficient to toll the statute of limitations where they had easy access to the information which would have informed them of facts giving rise to their claim); see also Hupp v. Gray, 500 F.2d 993, 996 (7th Cir. 1974). Thus, since plaintiffs had sufficient information by May 1982 to put them on notice of a potential claim against Litwin, they lost the benefit of equitable tolling at that time and each of the applicable statutes of limitations began to run.
The limitations period for claims arising under Illinois securities law is three years.
Plaintiffs also brought a claim under the Illinois Consumer Fraud and Deceptive Practices Act; that statute has a three-year limitation period as well. The common law fraud and breach of fiduciary duty claims are each subject to a five-year limitation. The § 10(b) claim is subject to the analogous state limitation period, that is, three years. Suslick v. Rothschild Securities Corp., 741 F.2d 1000, 1004 (7th Cir. 1984). Whether or not these limitations periods may have been tolled at all, they each began to run no later than May 1982 and thus each expired by the time plaintiffs filed their complaint, in August 1987.
MOTION TO AMEND THE COMPLAINT
After the motions for summary judgment were filed, and after two years of discovery, plaintiffs also moved to amend their complaint to allege a further instance of fraud, specifically, that the partnership was undersubscribed. Defendants responded to the motion with a general statement that they would be prejudiced if the complaint were amended at this late date. This court requested that defendants submit a more specific statement of the manner in which they would be prejudiced, but defendants have not done so. Nonetheless, the statute of limitation, discussed above, makes the motion to amend futile.
Plaintiffs had enough information by 1982 to put them on notice of problems with the partnership. That there was yet another problem of which they were not aware does not suffice to toll the statute beyond that date. A proposed amendment which could not survive a motion for summary judgment should not be allowed. See Wilson v. American Trans Air, Inc., 874 F.2d 386, 392 (7th Cir. 1989); see also cases cited in In re Olympia Brewing Co. Securities Litigation, 674 F. Supp. 597, 605 (N.D. Ill. 1987). Accordingly, plaintiffs' motion to amend their complaint is denied.
For these reasons, summary judgment is granted as to defendants Litwin and Clapp & Eisenberg. Defendant Stavriotis has already been dismissed from the case and a default judgment was entered against defendant Santi. The motion to amend the complaint is denied.
DATE: October 24, 1989