The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Enyinnaya Omelogu, filed suit against Defendants,
alleging violations of 42 U.S.C. § 1983 and a state law claim for
malicious prosecution. Subsequently, Defendant Cesar Canizales
filed a counterclaim against Plaintiff, alleging assault and
battery. Presently pending before the Court is Plaintiff's Motion
to Dismiss Defendant's Counterclaim.
A reading of the Complaint and Counterclaim supports the
following summary of the alleged operative conduct of the
On February 3, 2002, several University of Illinois at Chicago
Police Officers, including the Defendants, responded to a battery
call. When they arrived at the scene, Chiedoziem Ibekwe was
arrested for battery.
When the police arrived at the scene, Plaintiff was asleep in
his bedroom. Canizales knocked on Plaintiff's bedroom door to
retrieve a personal item belonging to Ibekwe. When Plaintiff
opened the bedroom door, Canizales grabbed Plaintiff; and
Canizales and Plaintiff ended up in a roommate's bedroom. While
in the roommate's bedroom, Canizales and other police officers punched, kicked, and beat Plaintiff and banged Plaintiff's head
on the floor. As result of the beating, Plaintiff was injured.
Plaintiff filed suit based on these allegations on February 3,
Contrary to Plaintiff's allegations, Canizales alleges that
Plaintiff, without provocation and warning, struck Canizales with
his hands. Canizales filed his Counterclaim on August 6, 2004.
Plaintiff seeks dismissal of Canizales's counterclaim, arguing
that the counterclaim is barred by the two-year statute of
limitations for personal injury.
Generally, claims for personal injury must be filed within two
years of the accrual of the injury. 723 ILCS 5/13-202. However,
under 735 ILCS 5/13-207, "a defendant in a lawsuit may bring a
counterclaim after the period authorized in the applicable
statute of limitations has elapsed, as long as the plaintiff's
claim arose before the cause of action brought as a counterclaim
was barred." Bethlehem Steel Corp. v. Chicago Eastern Corp.,
863 F.2d 508, 511 (7th Cir. 1988). The purpose of this savings
clause is to prevent a plaintiff from intentionally filing their
claims as late as possible in an attempt to deprive a defendant a
reasonable opportunity to file a counterclaim within the original
limitations period. See Cameron General Corp. v. Hafnia
Holdings, Inc., 289 Ill. App. 3d 495 (1997).
Canizales contends that his counterclaim is not time barred
pursuant to 5/13-207. Plaintiff contends that 5/13-207 is not
applicable to Canizales's battery claim, citing to Barragan v.
Osman Const. Corp., ___ Ill. App. 3d ___, ___ (2004), 2004 WL
1886464 (Aug. 24, 2004) (Barragan). The Barragan court held
that the more specific limitations period applicable to claims
for contribution and indemnity, 735 ILCS 5/13-204, governed over
the general savings clause in 5/13-207. Barragan,
___ Ill. App. 3d at ___. Barragan is readily distinguishable from the case at hand.
Section 5/13-204 provides that claims for indemnity or
contribution must be filed within two years after the party
seeking indemnity or contribution has been served with process.
This provision provides a specific statute of limitations for the
filing of claims for indemnity or contribution, specific subsets
of the general category of counterclaims. See Barragan,
___ Ill. App. 3d at ___. The provision does not deprive a party
seeking indemnification or contribution a reasonable opportunity
to file a counterclaim as it allows two years to file such a
claim after the party is served. See Barragan, ___ Ill. App. 3d at ___.
Furthermore, Section 5/13-204 specifically provides that
it applies to all actions for indemnity or contribution and
"shall preempt, as to contribution and indemnity actions only,
all other statutes of limitations . . ." 725 ILCS 5/13-204(c).
Unlike Section 5/13-204, the statute of limitations for
personal injury, 735 ILCS 5/13-202, does not provide a specific
limitation for counterclaims and does not specifically provide
that the two-year statute of limitations preempts all other
statutes of limitations. Furthermore, under Plaintiff's
interpretation of the two statutes, a party seeking to file a
counterclaim would not have a reasonable opportunity to file a
counterclaim if the original suit was filed as late as possible.
The present case clearly provides such an example. Here,
Plaintiff filed his suit on the last possible date of the
applicable two-year statute of limitations. Thus, Canizales would
have been required to file his counterclaim before he received a
copy of the Complaint on February 4, 2004. This result would
render 5/13-207 meaningless. See Beetle v. Wal-mart Assoc.,
Inc., 326 Ill. App. 3d 528, 531-32 (2001) (the court must
interpret statutes in a manner that avoids an inconsistency and
gives effect to both statutes where such an interpretation is
reasonably possible). Based on the above, Canizales's Counterclaim was timely filed
pursuant to 735 ILCS 5/13-207. Accordingly, Plaintiff's Motion to
Dismiss Defendant's Counterclaim is denied.
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