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March 30, 1993

USHA VAKHARIA, M.D., Plaintiff,


The opinion of the court was delivered by: JAMES B. MORAN

Dr. Usha Vakharia (Vakharia), a woman in her mid-forties, was born in Bombay, India and served for one and-a-half decades as an anesthesiologist on the medical staff of the Swedish Covenant Hospital (Hospital) in Chicago. She brings this suit against the Hospital, the American Society of Anesthesiologists (ASA), thirty-nine individual doctors affiliated with the Hospital or the ASA, and other "unnamed members" of the Hospital's Board of Directors. According to Vakharia, beginning in 1987 the Hospital assigned her fewer and less desirable cases and, on July 31, 1989, after several of the defendants gave her negative performance evaluations, the Hospital formally suspended her from its medical staff. She alleges that, at some time or another, and in some way or another, each of the named defendants discriminated against her on the basis of color, race, gender, age, and national origin, in violation of federal antidiscrimination laws, and that each of them endeavored to remove her from the Hospital staff in order to reduce economic competition among anesthesiologists, in violation of federal antitrust laws. She also claims that the Hospital terminated her staff privileges in violation of the its own bylaws, thereby violating Illinois law as well.

 On May 22, 1991, we denied the Hospital's motion to dismiss Vakharia's complaint, although we did dismiss the claims against the individual members of the Hospital's Executive Committee. Vakharia v. Swedish Covenant Hospital, 765 F. Supp. 461 (N.D.Ill. 1991). Since then Vakharia has twice amended her complaint, adding new defendants and new claims against defendants previously named.

 Plaintiff was originally represented by counsel. Later on she ceased to be so represented. That was a matter of some concern to this court because the original pleading, in a one-plaintiff discrimination case, named sixteen defendants in a lengthy five-count complaint, and because the litigation promised (and has proved to be) highly contentious. We were relieved, therefore, when plaintiff engaged new counsel. And it has been mostly downhill ever since.

 The two amendments substantially increase the scope of one of the prior counts and have added three more counts and numerous new defendants. The complaint is now 50 pages long. The added counts recite a great number of alleged facts and conclusions, but without much regard for the legal concepts they supposedly support. The defendants have moved to dismiss the amendments -- close to another 140 pages of briefs have been filed -- and, with these rulings, perhaps we will finally, after well more than two years of litigation, end the pleading wars and proceed to the merits of the controversy.

 The outlines of the controversy emerge from the initial allegations of the original complaint. Plaintiff contends that Dr. Nancy Loeber, the chairperson of the Department of Anesthesiology, from sometime in the late 1980s, embarked on an effort to force out three female Asian foreign-born anesthesiologists, one of whom was plaintiff. To that end she began to assign them fewer and less desirable cases, singled out plaintiff for criticism, and thereafter created two classes of anesthesiologists within the department, with the three Asian females being members of the lower or "junior" of the two classes. Thereafter plaintiff was allowed to handle only a limited number of relatively simple types of procedures. In 1989 Dr. Loeber began using Certified Registered Nurse Anesthetists (CRNA), but only the "seniors" could use them, resulting in a further restriction of the practice of the "juniors." In 1988 plaintiff was passed over for the position of vice-chairperson and was, for a time, unofficially suspended. When plaintiff asked to resume practicing at the hospital, Dr. Loeber made it difficult for that to happen. When plaintiff complained in 1989, she was refused a hearing, rejected once again as vice-chairperson, subjected to discriminatory review by an ASA panel and, on June 30, 1989, suspended. Failure to provide a hearing led to a state court lawsuit, and a hearing was thereafter convened. But that hearing was also discriminatory. Plaintiff, in December 1989, was denied renewal of staff privileges for 1990; in May 1990 the peer review committee recommended a permanent suspension, and the Hospital Board of Directors affirmed the findings and recommendations on September 14, 1990. The original complaint ascribed as reasons for those actions the plaintiff's color, race, national origin, sex and age. The original complaint alleged claims pursuant to Title VII, § 1981, ADEA and a state law claim based on breach of contract and violation of the medical staff bylaws. The Hospital, the subject of the original EEOC charge, was named as a defendant in all four counts. Dr. Loeber was named as a defendant in the § 1981 claim. The members of the Hospital Executive Committee were added as defendants to the state law claim. On May 20, 1991, this court denied motions to dismiss the Title VII and ADEA claims. We pared down the § 1981 claim on the basis of then applicable law and dismissed the individual defendants as unnecessary to the relief claimed.

 In the amendments plaintiff brings back the Executive Committee defendants in count IV, broadening the relief claimed by asking for injunctive relief on the ground that those doctors may seek to wrong her in the future. In the first new count, count V, plaintiff alleges § 1981 and § 1985(3) claims against all defendants, who include ASA, the ASA panel and the Hospital's Executive Committee, Credentials Committee, Joint Conference Committee of the Medical Staff, the Board of Directors, an ad hoc hearing committee, and the Appellate Review Committee of the Board of Directors. In the second new count, count VI, she alleges that all the defendants violated the Sherman Act by engaging in a conspiracy in restraint of trade and a conspiracy to monopolize, and an attempt to monopolize the delivery of anesthesia services at the Hospital, including a boycott of the "juniors." In the last new claim, count VII, all the individual defendants and ASA are added into a new Title VII claim. Defendants have moved to dismiss the amendments.


 The Addition of Parties Not Named in the First Complaint

 Vakharia filed her first complaint in this case on November 16, 1990. In that complaint she named 16 defendants: the Hospital, Dr. Loeber, and 14 individual members of the Hospital's medical staff Executive Committee. In her first amended complaint, filed on July 15, 1992, Vakharia named 24 additional defendants, all doctors who had worked with her or had evaluated her performance. Finally, in her second amended complaint, filed on September 18, 1992, she added another defendant, the American Society of Anesthesiologists, several officers of which had been named in the first amended complaint. Unfortunately for Vakharia, several of the causes of action she alleges were time-barred against most of the additional defendants by the time she named them.

 In Title VII and ADEA cases the plaintiff must file suit in federal court no later than 90 days after the Equal Employment Opportunity Commission (EEOC) has given notice of the plaintiff's right to sue. 42 U.S.C. § 2000e-5(f)(1) (Title VII); 29 U.S.C. § 626(e) (ADEA). See St. Louis v. Alverno College, 744 F.2d 1314 (7th Cir. 1984). That requirement is not satisfied by any of the claims against the defendants that Vakharia named for the first time in the amended complaints. The question then is whether the amendments "relate back" to the initial complaint, which everyone agrees was filed in timely fashion.

 Under Fed.R.Civ.P. 15(c) an amendment adding a party to a complaint relates back to the date of the original complaint only if the party to be brought in by amendment has received notice of the action, will not be prejudiced by the amendment, and "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." Vakharia has not alleged any mistakes concerning the identity of any defendants. To be sure, many of the added defendants may have been aware of Vakharia's lawsuit when it was filed, and many may have recognized themselves as participants in some of the events that her first complaint described, but that does not mean that the 1992 claims against them relate back to the first complaint. See Wood v. Worachek, 618 F.2d 1225 (7th Cir. 1980). When Vakharia filed her suit the defendants whom she would later name had no reason to believe that she intended to sue them. Vakharia knew who they were and where to find them. Accordingly, the Title VII claims against the defendants named for the first time in the 1992 amended complaints do not relate back to the first complaint. See Norton v. International Harvester Co., 627 F.2d 18, 20-22 (7th Cir. 1980); Havoco of America, Ltd. v. Hilco, Inc., 750 F. Supp. 946, 953 (N.D.Ill. 1990), aff'd, 971 F.2d 1332 (7th Cir. 1992). Those claims are dismissed.

 Unlike Title VII and the ADEA, § 1981 and § 1985 do not specify limitations periods. See 42 U.S.C. § 1981, 42 U.S.C. § 1985. As a result, federal courts interpreting them have looked to state law to apply the statute of limitations applicable to comparable state law claims. Goodman v. Lukens Steel Co., 482 U.S. 656 (1987). In Illinois, the statute of limitations applicable both to § 1981 and § 1985 cases is two years. Smith v. City of Chicago Heights, 951 F.2d 834, 836-7 n.1 (7th Cir. 1992); Kness v. Grimm, 761 F. Supp. 513, 519 (N.D.Ill. 1990). As noted, when Vakharia first filed her lawsuit the defendants whom she would later add had no reason to believe that they were, or would be, part of the suit. Therefore, no § 1981 or § 1985 claim can survive against a defendant named for the first time in the first or second amended complaint unless the complaint points to an act committed by that defendant occurring after July 15, 1990 (exactly two years prior to the filing of the amended complaint). Except for certain decisions made by the Hospital's Board of Directors in September 1990, all of the acts at issue in this case occurred prior to July 15, 1990. Thus, the § 1981 and § 1985 claims against the members of the Board of Directors are not time-barred, but all other § 1981 and § 1985 claims against defendants not named in the first complaint are time-barred and are dismissed.

 In her amended complaint, Vakharia has also listed "unnamed" members of the Board of Directors as defendants. They have never been named and never been served. It is too late to do so now. Thus, those "unnamed" defendants are dismissed.

 Title VII Claims Against Remaining Defendants

 In this court's memorandum and order of May 22, 1991, we denied the Hospital's motion to dismiss Vakharia's Title VII claim against it. The defendants other than the Hospital, observing that Vakharia failed to name any of them as defendants in her EEOC ...

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