complaint, which provided the identities did not relate back to the original complaint. Id. at 1256.
Household is not seeking to identify an existing defendant with a corrected name. Household is seeking to add an additional defendant it was unaware it had a cause of action against at the time of the original filing. This court must conclude such an amendment would not relate back under Rule 15(c)(3).
Household has argued that amended complaints relate back when they involve merely suing a defendant in a different capacity, citing Hill v. Shelander, 924 F.2d 1370 (7th Cir. 1991). Household maintains it is merely changing Jacobson's capacity from director to attorney. In Hill, the Seventh Circuit held that an amended complaint changing the capacity a guard was sued under from his official capacity to his individual capacity related back to the original complaint. Id. at 1376. Hill supports the fact the complaint could be amended to sue Jacobson in the additional capacity of attorney, but not to add a new defendant based on this change in capacity.
The second way the complaint could relate back, pursuant to Rule 15(c)(1), is under Illinois relation back provision, 2-616(d). Section 2-616(d) applies when the wrong person is named and served, as opposed to the "misnomer" situation where the correct person is served but called by the wrong name. Borg v. Chicago Zoological Society, 256 Ill. App. 3d 931, 628 N.E.2d 306, 194 Ill. Dec. 809, 811 (1st Dist. 1993). In Illinois, claims against newly added defendants in an amended complaint relate back if: (1) the original action is timely; (2) the failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner; (4) the defendant originally was aware the action was pending; and (5) the new claim grows out of the same transaction or occurrence as the original claim. Illinois Code of Civil Procedure, 735 ILCS 5/2-616(d). The parties dispute two issues on this matter: (1) whether Jacobson was an agent of Parker when served with the complaint in February 1991; and (2) whether the failure to name Parker in the original complaint was "inadvertent."
As to the first issue, Parker emphasizes, and Household concedes, Jacobson was no longer a partner at Parker when he was served with the complaint. Parker further cites a variety of cases where an agency relationship was found not to exist, for purposes of 2-616(d), in a variety of business relationships. However, neither side has cited any Illinois cases dealing with the rather unique relationship between Parker and Jacobson. Jacobson was a former partner of Parker, and the lawsuit relates to matters he worked on while a partner at Parker. Further, he was also a current client of Parker, who represented him in connection with these matters.
Illinois has permitted service on an agent to be found in unusual circumstances. See Slezak v. Lisle Center, Inc., 253 Ill. App. 3d 876, 625 N.E.2d 911, 192 Ill. Dec. 756, 757 (2nd Dist. 1993) (service found on defendant's agent, even though defendant's agent was served as the agent of another). In addition, § 2-616(d) is to be liberally construed, so as to decide cases on the merits rather than procedural technicalities. Campbell v. Feuquay, 140 Ill. App. 3d 584, 488 N.E.2d 1111, 94 Ill. Dec. 864, 868 (5th Dist. 1986). Given the novel and continuing relationship of Jacobson and Parker, this court cannot conclude, on the present record, that an agency for purposes of 2-616(d) did not exist.
"Inadvertence," for purposes of § 2-616(d), means excusable ignorance. Zincoris v. Hobart Bros. Co., 243 Ill. App. 3d 609, 611 N.E.2d 1327, 183 Ill. Dec. 679, 683 (1st Dist. 1993); Newey v. Newey, 215 Ill. App. 3d 993, 576 N.E.2d 137, 159 Ill. Dec. 468, 471 (1st Dist. 1991). "Ignorance" is generally defined under Illinois law as a lack of knowledge of the identity or existence of a defendant. Id; Newey, 159 Ill. Dec. at 471. "Inadvertence" generally covers errors that are the result of heedlessness or inattention resulting from concentration on other matters, even if the conduct includes a degree of negligence. Evans v. Graber, Inc., 115 Ill. App. 3d 532, 450 N.E.2d 482, 71 Ill. Dec. 47, 50-51 (4th Dist. 1983). A complex organization structure, if it causes confusion in ascertaining the correct defendant, can be a basis for a finding of "inadvertence." Newey, 159 Ill. Dec. at 472; Evans, 71 Ill. Dec. at 50 (failure to join a corporation was inadvertent, as plaintiff did not learn during the course of discovery the corporation was a separate entity until after the statute of limitations had run). "Inadvertence" can also be found where the delay in ascertaining an appropriate defendant is due to ambiguous responses received in discovery. Campbell v. Feuquay, 140 Ill. App. 3d 584, 488 N.E.2d 1111, 94 Ill. Dec. 864, 867 (5th Dist. 1986). See also Newey, 159 Ill. Dec. at 476 (a court can consider actions by defense attorneys that delay identification of a proper defendant as a factor in evaluating appropriateness of relation back). "Inadvertence" does not excuse the failure to act appropriately and promptly when the true facts are discovered. Zincoris, 183 Ill. Dec. at 683.
This court must conclude that Household's failure to join Parker was inadvertent. As noted before, Jacobson allegedly participated in the underlying transaction wearing many hats. Household maintains it did not learn Jacobson was acting as a Parker partner during the relevant transactions until well into discovery. The relationships and activities of the parties are obviously not lacking in complexity. Household also maintains that certain discovery responses, which Household maintains were deliberately deceitful, delayed Household's discovery of the true facts. Given that this court must grant Household the benefit of all reasonable inferences
at this stage of the proceedings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986), Parker is not entitled to summary judgment on the relation back issue.
C. Equitable Estoppel Equitable Tolling
Given the court's conclusion regarding relation back, these issues will be addressed only briefly. Equitable estoppel suspends the running of the statute of limitations during any period in which the defendant took active steps to prevent plaintiff from suing, such as concealing evidence of defendant's involvement. Singletary v. Continental Illinois National Bank, 9 F.3d 1236, 1241 (7th Cir. 1993). Mere denials of liability or refusing to cooperate in the making of the plaintiff's case is not enough to trigger equitable estoppel. Id.
Equitable tolling permits the plaintiff to sue after the expiration of the statute of limitations if, through no fault or lack of diligence, plaintiff was unable to sue before the expiration of the limitations period, even though no defendant took active steps to prevent plaintiff from suing. Singletary, 9 F.3d at 1241. It is unclear whether his doctrine is recognized in Illinois. Id. at 1242. This court, however, for purposes of this motion, will presume Illinois recognizes the doctrine.
This court must conclude from the voluminous and conflicting materials submitted by the parties that issues of fact preclude summary judgment, including such matters as whether Parker delayed Household's discovery of Parker as a possible defendant and Household's diligence in investigating all potential claims. This court notes that the Illinois Supreme Court has expressed a strong preference that such matters be resolved by a trier of fact. See Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 633 N.E.2d 627, 198 Ill. Dec. 786 (1994). While this court is not bound by the state court's preference on such matters, this court is bound by the Seventh Circuit's opinion that summary judgment is inappropriate for settling issues of notice or intent, where the summary judgment standard is applied with added vigor, or making credibility assessments and selecting between competing inferences. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041-1042 (7th Cir. 1993). As conflicting inferences can be drawn from the evidence presented, summary judgment is not appropriate.
For the reasons given above, defendant Parker, Chapin, Flattau & Klimpl's motion for summary judgment is DENIED. The parties are strongly urged to discuss settlement. The case is set for further status on October 6, 1994 at 10:00 a.m.
JAMES F. HOLDERMAN
United States District Judge
DATED: September 9, 1994