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February 24, 1993

EDDIE JONES, Plaintiff,

The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 Before the court is defendant Alfonza Wysinger's motion to dismiss plaintiff's second amended complaint for failure to state a claim upon which relief can be granted. For the following reasons, the motion is granted.


 Plaintiff Eddie Jones ("Jones") commenced this lawsuit on September 24, 1991. One year earlier, according to Jones' complaint, defendants Kevin Lucas ("Lucas") and Alfonza Wysinger ("Wysinger") violated Jones' Fourth and Fourteenth Amendment rights. The constitutional violation allegedly occurred when the defendants detained Jones without reasonable suspicion, searched him without probable cause, and subjected him to the use of excessive force. Jones claims to have suffered "great bodily injury, . . . a loss of his liberty, and . . . great mental anguish. " Jones now seeks $ 250,000 in compensatory damages and $ 250,000 in punitive damages from defendants, plus attorney's fees and costs.

 Jones' original complaint named the City of Chicago, "John Does," and an "Officer Jackson" ("Jackson") *fn1" as defendants. On January 22, 1992, the only served defendant, City of Chicago, was voluntarily dismissed with prejudice. Jones filed his first amended complaint on April 8, 1992, naming as defendants Jackson and Lucas. On November 2, 1992, Jones filed instanter his second amended complaint, naming as defendants Wysinger and Lucas. Defendant Wysinger has filed the instant motion to dismiss claiming Jones' purported claim based upon the September 23, 1990 incident is barred by Illinois' two-year statute of limitations period.

 The Federal Rules of Civil Procedure provide a liberal policy for amending pleadings. Under Rule 15(a), leave to amend a party's pleadings "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a); see also Cates v. Morgan Portable Bldg Corp., 780 F.2d 683, 690 (7th Cir. 1985). In the present case, however, Jones' second amended complaint goes beyond the liberal modification policy embodied by Rule 15(a). Rather than amending his pleadings as a matter of course, Jones' second amended complaint seeks to add to the complaint a new defendant, Wysinger, after the statute of limitations period has expired. Therefore, the actual issue before the court is whether Federal Rule of Civil Procedure 15(c) allows the second amended complaint to relate back to the original filing of this suit.

 The four prerequisites to relate back an amendment adding a new party under Rule 15(c) are:

(1) the basic claim must have arisen out of the conduct set forth in the original complaint; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period.

 Schiavone v. Fortune, 477 U.S. 21, 29, 91 L. Ed. 2d 18, 106 S. Ct. 2379 (1986). Congress recently altered the Schiavone analysis by adopting an amended version of Rule 15(c). The amendment to Rule 15(c) was intended to "prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense," Fed. R. Civ. P. 15(c) Notes of Advisory Committee--1991 Amendment, and was intended to apply retroactively where to do so would be "just and practicable." Order Amending Federal Rules of Civil Procedure, 111 S. Ct. Preface 813 (April 30, 1991).

 Neither party has briefed the issue as to whether the new Rule 15(c) should be retroactively applied to the instant case. In light of the liberal pleading practice secured by Rule 8, courts have liberally applied the amended Rule 15(c) retroactively where to do so would allow a plaintiff access to the courts that would otherwise have been prohibited by the statute of limitations. See Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 546 (5th Cir. 1992) (retroactive application is appropriate as the outcome under Schiavone was inconsistent with the liberal pleading practices secured by Rule 8); Hill v. U.S. Postal Service, 961 F.2d 153, 155 (11th Cir. 1992) (amended Rule 15(c) may be applied retroactively to allow relation back of amendment to name a proper defendant, who was previously unidentified) (citing Renslow v. City of Chicago, No. 91 C 5560, 1991 WL 296732 at *1 (N.D. Ill. Jan. 14, 1991)); Wilson v. City of Atlantic City, 142 F.R.D. 603, 604-05 (D.N.J. 1992) (applying amended Rule 15(c) retroactively to an amendment adding the proper identity of a "John Doe Defendant"); Boliden Metech, Inc. v. United States, 140 F.R.D. 254, 258 (D.R.I. 1991) (to ignore the intent of the Advisory Committee on Civil Rules, the United States Supreme Court, and Congress by deciding this issue based on the requirements of a soon to be obsolete Rule is inequitable). Because justice impels strongly toward affording the plaintiff his day in court and because the absence of prejudice strengthens the conclusion that a complaint may be amended, the court will apply whichever Rule 15 would be most favorable to Jones.

 The amended Rule 15(c) differs from the previous rule in two principle respects. First, a new subparagraph, 15(c)(3) was added, which revised the Schiavone analysis by requiring notification of a misnamed defendant within the Rule 4(j) 120-day period for service of summons and complaint. Second, a new subparagraph, 15(c)(1), was added to provide an additional time period if a state statute of limitations were more liberal than the new Rule 15(c)(3). Essentially, the amended Rule 15(c)(1) provides that if the controlling limitations law affords a more forgiving principle of relation back than Rule 15(c)(3), that law will govern. Because Jones filed his amendment outside the Rule 15(c)(3) 120-day limitation period, and because Illinois relation-back law would not allow the addition of Wysinger to Jones' complaint, *fn2" the court will not apply the amended Rule 15(c) retroactively, but will utilize the Schiavone test that was in effect on the date Jones files his original complaint.

 As to the first condition of Schiavone, Wysinger agrees that the original and amended complaints have always concerned the same September 23, 1990 incident involving Jones and certain Chicago police officers. Wysinger, however, contends that neither the requirement relating to notice nor the requirement relating to mistake has been satisfied in this case. In general, the second requirements of the Schiavone test cannot be met if the added party is deprived of the defense of the statute of limitations. Norton v. International Harvester Co., 627 F.2d 18, 21 (7th Cir. 1980). "Such prejudice may not come into existence, however, if the added defendant has had sufficient notice of the institution of the action . . . or if a sufficient identity of interest exists between the new defendant and the original one so that relation back would not be prejudicial. Id. at 20-21 (citing Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir. 1980).

 Jones does not claim that Wysinger had sufficient notice of this action; instead, Jones contends that a sufficient identity of interest exists between the City of Chicago, Jackson, and Wysinger so that the knowledge of the Corporation Counsel of the City of Chicago (Corporation Counsel), defense counsel for all defendants since the start of this litigation, should be imputed to defendant Wysinger. *fn3" Specifically, Jones claims that Corporation Counsel "knew that Officer Wysinger was the other officer involved in the incident before the statute of limitations ran in September, 1992." Although Jones concedes that Wysinger could have chosen to be represented by private counsel, Jones claims there nevertheless "was imputed knowledge to defendant Wysinger prior to the expiration of the statute of limitations."

 Despite Jones contentions, none of the previously named defendants have a sufficient identity of interest to impute "notice of the institution of the action." Fed. R. Civ. P. 15(c)(3). The identity of interest principle is usually applied if "'the original and added parties are a parent corporation and its wholly owned subsidiary, two related corporations whose officers, directors, or shareholders are substantially identical and who have similar names or share office space, past and present forms of the same enterprise, or co-executors of an estate.'" Norton v. ...

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