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OLECH v. VILLAGE OF WILLOWBROOK

December 13, 2000

GRACE OLECH, PLAINTIFFS
V.
THE VILLAGE OF WILLOWBROOK, GARY PRETZER, AND PHILLIP J. MODAFF, DEFENDANTS.



The opinion of the court was delivered by: Schenkier, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Grace Olech brings this action under 42 U.S.C. § 1983 against (1) the Village of Willowbrook and (2) Gary Pretzer and Phillip Modaff, individually and in their official capacities. The amended complaint alleges that the defendants violated Ms. Olech's rights as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This matter is presently before the Court on Ms. Olech's motion for leave to file a second amended complaint (doc. #49), which seeks to add the same equal protection claim under Section 1983 as asserted by Phyllis S. Zimmer, independent executor of the Estate of Thaddeus F. Olech, who was Ms. Olech's husband. For the reasons set forth below, the plaintiffs motion to amend is granted.*fn1

I.

The original complaint in this case was filed on July 11, 1997. On September 3, 1997, the defendants responded by moving to dismiss. In the face of that motion, on September 10, 1997, the district judge allowed plaintiff until October 8, 1997 to respond to the motion or to file an amended complaint. In compliance with that order, Ms. Olech filed her amended complaint on October 8, 1997.

In the original complaint, Ms. Olech alleged that in May 1995, she and her late husband made a written request to Defendant Village of Willowbrook to connect their property to the municipal water supply (Compl. ¶ 11). According to the complaint, in August 1995, the defendants conditioned that water connection on the Olechs agreeing to provide the Village with a 33-foot easement (Id. at ¶ 16). The complaint asserts that this condition was improper, because the Village previously had requested only 1.5-foot easements when extending the water supply to other residents (Jd. at ¶¶ 18, 21-22). The complaint alleged that the Olechs refused to accede to the allegedly improper request for a 33-foot easement (Id. at ¶ 18), and because the defendants continued to insist on that easement, no progress was made on the extension of the water supply to the Olechs between August and November 10, 1995 (Id. at ¶ 20).

The complaint alleges that on or about November 10, 1995, defendants withdrew the demand for a 33-foot easement and agreed to proceed on the basis of the Olechs providing a 15-foot easement (Id. at ¶ 21). However, according to the complaint, as a result of the three-month delay, the Olechs were unable to connect to the water supply until March 1996 and thus were deprived of running water during the winter of 1995-96 (Id. at ¶¶ 23-24). The complaint alleges that the defendants' conduct caused "great inconvenience, humiliation, and mental and physical distress" to both Ms. Olech and her husband (Id. at ¶ 24).

Although the original complaint alleged that the defendants had violated the rights of both Ms. Olech and her husband, and asserted that the defendants had caused both of them to suffer injury, the original complaint asserted a Section 1983 claim only on behalf of Ms. Olech. The same was true of the amended complaint filed on October 8, 1997, which did not charge the allegations in any way that is material to this motion.*fn2

Mr. Olech passed away prior to the filing of the original complaint (although the papers do not disclose exactly when his death occurred). There appears to be no dispute that as of the date of the amended complaint, Mr. Olech's estate lacked an appointed representative, and thus could not have been named as a party plaintiff (Pl.'s Mot., ¶ 11). However, on October 9, 1997, the day after the amended complaint was flied, Ms. Zimmer was appointed as executor of Mr. Olech's estate. Ms. Olech did not seek an extension of time to file the amended complaint (so that it would not have to be filed until a representative had been appointed for Mr. Olech's estate). Likewise, immediately after Ms. Zimmer was appointed as executor, no motion was filed seeking to add her as a party plaintiff.

On October 28, 1997, defendants filed a motion to dismiss the amended complaint. On April 13, 1998, the district court granted the motion to dismiss. See Olech v. Village of Willowbrook, 97 C 4935, 1998 WL 196455, at *3 (N.D.Ill. 1998). During the pendency of that motion. Ms. Olech did not seek leave to amend to add Ms. Zimmer as a party plaintiff.

Ms. Olech successfully appealed the district court's dismissal of the amended complaint. Olech v. Village of Willowbrook; 160 F.3d 386, 388-89 (7th Cir. 1998). After the Seventh Circuit's reversal of the dismissal of the amended complaint, the case was returned to district court. While on remand, some status conferences were held and the defendants answered the amended complaint and moved to strike certain allegations and the prayer for punitive damages (doc. ##34, 36). In the meantime, the defendants also petitioned the United States Supreme Court for review of the Seventh Circuit decision, which the Supreme Court granted. On November 4, 1999, the district court declared all pending motions moot and dismissed the case with leave to reinstate after the Supreme Court decision (doc. # 39). The Supreme Court affirmed the Seventh Circuit's ruling. Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Thereafter, on March 21. 2000, the case was reinstated in the district court (doc. #41). Since that time, the parties have explored settlement, but no substantive proceedings have taken place in the case.

II.

Federal Rule of Civil Procedure 15(a) provides that where, as here, an answer to the complaint has been filed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. The decision as to whether to grant leave to amend a complaint under Rule 15 falls within the sound discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). But that discretion must be exercised keeping in mind that the mandate to freely permit amendments "is to be heeded." Foman v. Davis, 371 U.S. 178, 182. 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). "This liberal policy of granting amendments is based in part on the belief that decisions on the merits should be made whenever possible, absent countervailing considerations." Gregg Communications Systems, Inc. v. American Telephone and Telegraph Co., 98 F.R.D. 715, 720 (N.D.Ill. 1983); see also Schiavone v. Fortune, 477 U.S. 21, 27, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) ("the spirit and inclination" of the rules favors decisions on the merits, and "reject[s] an approach that pleading is a game of skill in which one misstep may be decisive"); Foman, 371 U.S. at 181, 83 S.Ct. 227 (decisions on the merits are not to be avoided on the basis of "mere technicalities"); CHARLES A. WRIGHT. ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1471, at 505-06 (2d Ed. 1990) ("the Rule's purpose is to provide maximum opportunity for each claim to be decided on its merits rather than on procedural technicalities").

The Supreme Court has identified the kinds of circumstances that can warrant denial of leave to amend: "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to opposing party by virtue of allowance of the amendment. futility of amendment, etc." Foman, 371 U.S. at 182, 83 S.Ct. 227; see also Johnson v. Methodist Medical Center of Illinois, 10 F.3d 1300, 1303 (7th Cir. 1993). Here, the defendants argue that an amendment to permit Ms. Zimmer (on behalf of the estate of Mr. Olech) to be added as a party plaintiff would be futile, because any claim asserted by Mr. Olech's estate is time barred (Defs.' Mem. at 6). And, indeed, there is no dispute that a two-year statute of limitations applies in this case. See Williams v. Heavener, 217 F.3d 529, 531 (7th Cir. 2000) (Illinois' two-year personal injury statute of limitations applies to claims brought under Section 1983). under that statute of limitations, a claim on behalf of the Olech Estate would be untimely if filed after March 1998.

However, Ms. Olech argues that Ms. Zimmer's claim on behalf of the Olech Estate is riot time barred because, pursuant to Fed.R.Civ.P. 15 (c), the second amended complaint containing the claim asserted by Ms. Zimmer would relate back to July 11, 1997, the date of the original complaint (Pl.'s Reply at 1-7). Defendants counter that the addition of a claim by a new party plaintiff will relate back only if that party was absent from the original pleading because of mistake, arid that the failure of Ms. Zimmer to bring the claim of the Olech Estate sooner was not due to mistake (Defs.' Resp. 2-5). The parties dispute both the applicable standard to be used in determining whether ...


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