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Schweihs v. Burdick

September 19, 1996




Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 7106 Wayne R. Andersen, Judge.

Before BAUER, CUDAHY, and EASTERBROOK, Circuit Judges.

BAUER, Circuit Judge.



While incarcerated at the Oxford Correctional Center in Oxford, Wisconsin, Frank Schweihs read Blue Thunder, a book that Simon and Schuster published in October 1990. Schweihs believes that the book defames him; unfortunately, he did not file a tort action against the authors and publisher until October 23, 1992. Simon and Schuster removed the claim to federal court, and the district court found the action barred by the Illinois statute of limitations. 735 ILCS 5/13-201. We affirm.


At all times relevant to this lawsuit, Schweihs has been incarcerated pursuant to his conviction on federal extortion charges. See United States v. Schweihs, 971 F.2d 1302 (7th Cir. 1992). During that incarceration, defendants Thomas Burdick and Charlene Mitchell co-authored a book, Blue Thunder, about the murder of a Florida businessman. In Schweihs' opinion, the book is libelous insofar as it implicates him in a murder which he did not commit and for which another man has been convicted. To date, this case has been long on procedure and short on substance. We continue that trend. In light of our decision, we do not reach the merits of the defamation claim. And so, we begin with the route it has taken to get here.

Defendant Simon and Schuster published the book on October 25, 1990. Nearly two years later, on October 23, 1992, Schweihs filed his initial defamation suit in Illinois state court. Before Schweihs had served any of the defendants, the court dismissed the complaint for want of prosecution on October 20, 1993. A year later, on October 19, 1994, Schweihs filed a second complaint against the same three defendants. Schweihs served the complaint and summons on Simon and Schuster on November 2, 1994, but defendants Burdick and Mitchell have yet to be served.

On November 28, Simon and Schuster removed the action to federal district court. Schweihs filed a motion to remand the case, which the district court denied on March 16, 1995. On October 3, 1995, the district court found that Schweihs' second complaint was time-barred by the Illinois statute of limitations for defamation, 735 ILCS 5/13-201, and entered summary judgment in favor of Simon and Schuster. Because Schweihs still had not served defendants Burdick and Mitchell, the district court dismissed the action against those two defendants pursuant to Federal Rule of Civil Procedure 4(m). Schweihs appeals only the entry of summary judgment.


We review the district court's decision to grant summary judgment de novo. In a diversity action, we follow the law of the forum state, in this case Illinois. See ECHO v. Whitson Co., 52 F.3d 702, 707 (7th Cir. 1995). Under Illinois law,

Actions for slander, libel or for publication of matter violating the right of privacy, shall be commenced within one year next after the cause of action accrued. 735 ILCS 5/13-201.

From the defendants' perspective, the timeline is simple--they distributed Blue Thunder to the public on October 25, 1990, and Schweihs did not sue until October 1992. *fn1 Schweihs, however, claims that he was not aware of the publication until July or August of 1992, and that his incarceration tolled the statute of limitations until his release from prison. Although the Illinois Code of Civil Procedure previously tolled the statute of limitations for prisoners' claims until their release, an amendment effective January 1, 1991 deprived prisoners of any tolling benefits. See 735 ILCS 5/13-211 (1978); Dixon v. Chrans, 986 F.2d 201, 204 n.3 (7th Cir. 1993). Under the old statute, Schweihs could have waited until after his release from prison to file his claim, but under the amended statute, Schweihs could file only before October 25, 1991. The problem, of course, is that the amendment shortened the limitations period against Schweihs after it began to run.

We will apply a shortened limitations statute retroactively only if Schweihs had a "reasonable" time to file his claim against Simon and Schuster after the amendment. See Farrell v. McDonough, 966 F.2d 279, 282 (7th Cir. 1992), cert. denied, 506 U.S. 1084 (1993). Courts have determined reasonable periods on a case by case basis and have approved periods as short as nine months and as long as fifteen months. Id.; see also Pearson v. Gatto, 933 F.2d 521, 526 (7th Cir. 1991). So we consider whether Schweihs filed his claim within a reasonable time. Despite the shortened limitations period, Schweihs did not file his complaint until October 23, 1992, twenty-two months after the effective date of the 1991 amendment. In light of the fact that the Illinois statute of limitations for defamation is only one year, this delay is unreasonable. See, e.g., Farrell, 966 F.2d at 282; Wilson v. Giesen, 956 F.2d 738, 742 (7th ...

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