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January 11, 1993

THOMAS RAE, Plaintiff,
DAVID KLUSAK, et al., Defendants.

The opinion of the court was delivered by: MILTON I. SHADUR

 At this point plaintiff Thomas Rae ("Rae"), by filing his Second Amended Complaint ("SAC"), has made his third attempt to assert claims under 42 U.S.C. ยง 1983 ("Section 1983"). After having unsuccessfully resisted the effort of Rae's counsel to present that revised pleading to begin with, defendants have now filed what they label as a motion to dismiss the SAC with prejudice. However, both that motion and its supporting memorandum and supplement clearly reflect that the only thing that defendants are really targeting is Rae's proposed inclusion of the City of Chicago ("City") as an added defendant.

 In that respect City objects to being named (1) because of the SAC's asserted untimeliness and (2) because of the claimed insufficiency of the SAC's substantive allegations against City--but nothing in defendants' submissions seeks to challenge Rae's claims against the numerous individual defendants. This opinion will accordingly focus solely on the added inclusion of City as a putative defendant, and it therefore refers to the motion and supporting papers as City's only--not as defendants' collectively.

 City as Defendant : Timeliness

 Under Fed.R.Civ.P. 15(c), the law governing relation back is the law of the state governing relations between the parties.

 Then its Mem. 3 goes on to quote Ill.Rev.Stat. ch. 110, P 2-616(d) and to cite a group of Illinois cases dealing with the principles of relation back under Illinois procedures.

 But that of course is arrant nonsense--given the still-definitive teaching of Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965), such recourse to state law for the rules of decision would not be appropriate even in a diversity-of-citizenship action (see Santana v. Holiday Inns, Inc., 686 F.2d 736, 740 (9th Cir. 1982) and cases cited there). And it really follows a fortiori that City's counsel cannot argue in good conscience that a state statute and state case law should override the explicit provisions of Rule 15(c) in a federal question case such as this one, grounded as it is in Section 1983 (see Ciolino v. Sciortino Corp., 721 F. Supp. 1491, 1494-95 (D. Mass. 1989) (applying that principle in a federal question case, even though that Circuit may follow the decidedly minority view that a state's relation back rule is to be followed in a diversity case); Martinez v. Ortiz, 715 F. Supp. 419, 422-23 (D. P.R. 1989) (analyzing the issue at length and pointing out the universality of the rule stated here)). *fn1"

 This Court therefore looks solely to Rule 15(c) as the source of law to deal with City's current motion. In that regard one other issue (an issue not dealt with by either party) should be mentioned early on. City's supplement to its motion (though not its original motion or memorandum) refers to Rule 15(c)(3), which is part of the amendment to Rule 15(c) that took effect December 1, 1991 to overrule the extraordinarily restrictive reading of that Rule that the Supreme Court had earlier adopted in Schiavone v. Fortune, 477 U.S. 21, 91 L. Ed. 2d 18, 106 S. Ct. 2379 (1986). On the other hand, Rae's response to City's motion to dismiss has looked at and analyzed the matter only under the earlier version of Rule 15(c) as dealt with in Schiavone.

 Those differing approaches have been taken without any discussion at all of the question whether Rule 15(c)(3) (rather than the earlier version of Rule 15(c)) should or should not be considered as applicable to this lawsuit. *fn2" As pure chance would have it, there is a case pending before our Court of Appeals that poses precisely that question of the retroactivity or nonretroactivity of the Rule 15(c)(3) amendment to Rule 15(c). This Court has caused the attention of the litigants in that pending Seventh Circuit case to be drawn to the opinion of four other Courts of Appeals that have already addressed that question ( Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 544-46 (5th Cir. 1992); Hill v. United States Postal Serv., 961 F.2d 153, 154-56 (11th Cir. 1992); Freund v. Fleetwood Enterprises, Inc., 956 F.2d 354, 361-63 (1st Cir. 1992); and Bayer v. United States Dept. of Treasury, 294 U.S. App. D.C. 44, 956 F.2d 330, 334-35 (D.C. Cir. 1992)).

 Because the matter is not yet settled in this Circuit, this opinion will look at the question under both the original and the amended versions of Rule 15(c). As it turns out, the answer is the same either way:

 1. Both versions of Rule 15(c) say that relation back will not apply unless the claim asserted in the amended pleading "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading"--but that relationship certainly exists here. Neither side quarrels with that.

 2. Under original Rule 15(c), it is necessary to show that City "has received such notice of the institution of the action [before the limitation period has run] that [City] will not be prejudiced in maintaining [its] defense on the merits"--and that too was undoubtedly true here, because Rae's original version of the Complaint had named the various individual defendants in their official capacities, thus stating the equivalent of a claim against City itself ( Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985)). Indeed, City's Corporation Counsel successfully obtained dismissal of the original Complaint's Section 1983 claims on exactly that ground in the motion that was filed to dismiss that Complaint. Moreover, City's current supplement expressly acknowledges "that it had notice of this action." As for Rule 15(c)(3), the identical result obtains--for that amended version has changed the quoted Rule 15(c) condition only by replacing the timing of its notice requirement with one that looks to the period provided by Rule 4(j) for service of the summons and complaint.

 3. Finally, both the original version of Rule 15(c) and its revision via Rule 15(c)(3) require that the newly-named party "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party." Though City seeks to squirm out of that requirement, it must fail on that score as well. After all, City extricated itself from this lawsuit in the first place (via dismissal of the official-capacity claims against the individual defendants) because Rae had failed at that time to satisfy the demands of Monell v. Department of Social Serv. of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) and its progeny for direct (rather than respondeat superior) ...

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