United States District Court, Northern District of Illinois
January 29, 2003
CITY OF CHICAGO
The opinion of the court was delivered by: Zagel, Judge
Some defendants move for dismissal. On 13 September 2002 the plaintiff added four new defendants to the case, and they seek to dismiss various counts of the complaint — claims of false arrest, false imprisonment and malicious prosecution against two of the four. The grounds are simple. The arrest and imprisonment occurred on September 10, and the one-year statute of limitations precludes the claim against the new defendants. As for malicious prosecution, no acts are alleged to have been committed by the two who seek dismissal. The last point is conceded — indeed, the two never were meant to be included in the malicious prosecution count. So I am dismissing Count IV against Gajdzinski and Pickering.
Plaintiff also concedes the technical correctness of the argument against claim one, but argues that it would be inequitable to apply the limitation because on September 10, plaintiff said — in open court — that she would amend the complaint on September 13, and the defense counsel made no objection that such a filing would be past the one-year limitation period. One problem with this argument is that defense counsel has no duty to warn that the period is expiring and, at the time, had no authority to represent or waive rights of the individual defendants who were later added. They were not parties, and the Corporation Counsel could not act on their behalf nor could her actions bind the individual defendants here. One cannot extend the statute of limitations on the ground that unnamed defendants knew or should have known that they would be named as defendant. How could they have known? What obligation did they have to follow the course of a litigation in which they had not been named defendants so that one could say they "should have known" that they would be named. Relation back under Fed.R.Civ.P. 15 does not work here under the clear law of this Circuit for two or more decades. This is candidly admitted by plaintiff — I assume for purposes of not waiving his right to challenge the rule someday on appeal. Other circuits differ but I sit in this Circuit. By so noting this, I do not rule that even in another circuit, the amendment would relate back because I have no evidence that the names of these defendants were unknown to plaintiff. If she knew them on September 10, 2002, her claim for equitable relief would be tenuous-nothing stopped her from filing on that day. Indeed, defendants assert that the police reports of the incident, which contained their names, had been tendered to plaintiff no later, and perhaps earlier, than August of 2002. The only exception is the name of Gajdzinski which was disclosed on September 3. I do need to find that any of this about the reports is true (although transcripts in this case suggest quite strongly that it is), but I am entitled to rely on the fact that plaintiff never alleges that he did not know the names on September 10 or before.
The motion to dismiss Counts II and III against defendants Pickering, Gajdzinski, Bronski and Manguerra are granted. So too is the motion to dismiss Count IV against Pickering and Gajdzinski.
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