The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Norene Jenkins ("Jenkins") filed suit against Defendant National Railroad Passenger Corporation ("Amtrak") alleging various claims related to events leading up to and after she boarded an Amtrak train destined for Chicago. This Action involves ten claims: (1) intentional infliction of emotional distress; (2) negligent infliction of emotional distress; (3) negligence; (4) violation of the Americans With Disabilities Act (the "ADA"); (5) battery; (6) false imprisonment; (7) breach of contract; (8) negligent misrepresentation; (9) common law fraud; and (10) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("CFA"). Amtrak moves to dismiss Counts I through VI and Counts VIII through X. For the reasons stated herein, Amtrak's Motion to Dismiss Counts I through VI and Count VIII is denied. Amtrak's Motion to Dismiss Counts IX and X is granted and Counts IX and X are dismissed with prejudice.
Amtrak is a corporation in the business of providing railroad transportation to the public at large. (Compl. ¶ 3.) At all relevant times, Jenkins was an Illinois resident who had a disability that confined Jenkins to a motorized wheelchair. (Compl. ¶¶ 1-2.) In August 2004, Jenkins purchased tickets to travel round-trip on Amtrak from Chicago, Illinois to Los Angeles, California. (Compl. ¶ 5.) Jenkins and her full time assistant, Jessica Miranda ("Miranda") were scheduled to depart from Illinois on August 9, 2004 and commence their return trip from California on August 12, 2004. (Id.)
Prior to August 9, 2004, Jenkins confirmed with Amtrak's "Reservation Department" that her travel accommodations would be accessible to her needs, including restrooms, dining areas, and power stations for her wheelchair, and was told that Amtrak would provide her with the necessary accommodations. (Compl. ¶ 7.) However, when the train departed on August 9, Jenkins discovered that she did not have access to the dining car, entertainment equipment, or communication equipment and could not access the bathroom because her motorized wheelchair did not fit in the space provided. (Compl. ¶¶ 8, 10.)
In an effort to avoid the same problems on her return trip from Los Angeles, Jenkins contacted Amtrak customer relations prior to her August 12, 2004 departure. (Compl. ¶ 11.) An Amtrak customer service employee assured Jenkins that her train car would be equipped with an accessible restroom and that she would be provided with all other accommodations originally promised by Amtrak. (Id.) Nevertheless, upon boarding the train car on August 12, Jenkins learned that she could not access the restroom in her motorized wheelchair because the restroom door would not close. (Compl. ¶ 12.) Subsequently, Jenkins contacted an Amtrak porter ("Porter") as well as an Amtrak supervisor ("Supervisor") and explained to them her special needs. (Compl. ¶¶ 13-14.) In response, the Porter and the Supervisor ordered Jenkins to remove herself from the train. (Id.) A train engineer then told Jenkins that they could not accommodate Jenkins and requested that she remove herself from the train. (Compl. ¶ 15.) Following this conversation, an Amtrak conductor announced over the train's intercom system that "a handicapped lady is holding up the train because the bathroom is not accessible" and that Amtrak asked her to exit the train. (Compl. ¶ 16.) Amtrak passengers began to verbally accost and yell at Jenkins. (Compl. ¶ 17.)
Following the announcement, the Supervisor called the police and ordered them to physically remove Jenkins from the train. (Compl. ¶ 18.) In response, two policemen, upon the orders of the Supervisor and Amtrak engineer, threatened Jenkins with arrest, removal from the train in handcuffs, and destruction of her motorized wheelchair. (Id.) Upon the direction of Amtrak personnel, Jenkins's purse was removed from her wheelchair and its contents emptied on the ground. (Compl. ¶ 19.) Also upon direction of Amtrak personnel, Jenkins was picked up while seated in her wheelchair and "tossed off of the train." (Compl. ¶ 20.) Jenkins alleges that, by virtue of the acts of Amtrak, its employees, and the police officers Amtrak "borrowed" to deal with Jenkins, Jenkins was improperly and unlawfully restrained and/or arrested. (Compl. ¶¶ 58-59.)
The police informed Jenkins that she was banned from future travel on Amtrak pursuant to instructions from Amtrak. (Compl. ¶ 20.) Jenkins was left embarrassed, humiliated and outraged, without tickets, laying on ground next to her wheelchair, bleeding from her left hand, and wearing only one shoe. (Compl. ¶ 21.)
Jenkins alleges that, at the relevant times related to this Action, Amtrak, Amtrak employees, and the police officers under its control were in a position of power over Jenkins and knew or should have known about her disabilities and need for accommodations. (Compl. ¶¶ 25-26.) In addition, Jenkins further alleges that Amtrak knew or should have known that its actions were likely to cause emotional distress to Jenkins and that, as a result of Amtrak's conduct, Jenkins sustained severe and extreme emotional distress. (Compl. ¶ 30.) Jenkins also alleges that Amtrak was negligent in its handling of Jenkins, her removal from the train, and her request for reasonable accommodations. (Compl. ¶¶ 35-36.) As a result, Jenkins was physically and emotionally endangered by Amtrak's acts and suffered physical injury and illness as a result of the emotional distress caused by Amtrak. (Compl. ¶¶ 36-38.)
With regard to Jenkins's common law fraud claim, Jenkins alleges that Amtrak, during its conversations with Jenkins leading up to the August 9 and August 12 trips, misrepresented to Jenkins that the train cars used would accommodate Jenkins and her wheelchair and that Amtrak would provide Jenkins with the amenities normally offered to customers, including restrooms, dining, entertainment, comfortable seating, and communication devices. (Compl. ¶ 76.) Jenkins, relying on such misrepresentations, purchased Amtrak tickets, boarded the train on August 9, retained the August 12 ticket despite the service encountered on August 9, and boarded the train again on August 12. (Compl. ¶ 80.) With regard to the consumer fraud claim, Jenkins alleges that Amtrak unfairly deceived Jenkins by enticing her to purchase tickets and travel on Amtrak based on misrepresentations related to the provision of services. (Compl. ¶ 84.) Additionally, Amtrak intended that Jenkins rely on such deception, which occurred in the course of conduct involving trade and/or commerce, and utilize Amtrak's train services. (Compl. ¶ 86.)
On August 10, 2005, Jenkins filed an action in the Circuit Court of Cook County (the "Circuit Court") against Amtrak, alleging claims stemming from the August 12, 2004 incident (the "First Action"). (Def. Ex. A, Initial Compl.) On March 10, 2006, Jenkins voluntarily dismissed the First Action pursuant to Section 2-1009 of the Illinois Code of Civil Procedure. (Def. Ex. B, Mar. 10, 2006 Order at 3.) Subsequently, on August 14, 2006, Jenkins filed a Complaint for Discovery in the Circuit Court pursuant to Section 2-402 of the Illinois Code of Civil Procedure ("Respondent in Discovery Action"). (Def. Ex. C, Compl. for Disc.) The Complaint for Discovery named Amtrak as a "Respondent in Discovery," but failed to name a person or entity as a defendant or include any specific causes of action. (Id. at 1-2.) Section 2-402 of the Illinois Code of Civil Procedure required Jenkins to convert Amtrak to a defendant by February 14, 2007, six months after naming Amtrak as a Respondent. (Def. Ex. D, Jan. 25, 2007 Order.) On January 25, 2007, the Circuit Court extended this deadline to April 16, 2007. (Id.) Subsequently, on April 16, 2007, the Circuit Court granted Jenkins's motion to convert Amtrak to a defendant and ordered Jenkins to file an amended complaint by April 26, 2007. (Def. Ex. E, Apr. 16, 2007 Order.) Jenkins filed an Amended Complainton April 27, 2007, one day after the Court ordered deadline. (Def. Ex. F, Am. Compl.)
Subsequently, on June 18, 2007, Amtrak removed the suit to this Court and, on August 9, 2007, Jenkins filed her Second Amended Complaint.
When considering a motion to dismiss under Rule 12(b)(6), a court must accept as true all facts alleged in the complaint and construe all reasonable inferences in favor of the plaintiff. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A plaintiff need not allege all facts involved in the claim. See Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994). However, in order to survive a motion to dismiss for failure to state a claim, the claim must be supported by facts that, if taken as true, at least plausibly suggest that the plaintiff is entitled to relief. See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). Such a set of facts must "raise a reasonable expectation that discovery will reveal evidence" of illegality. Id. at 1965.
I. Statute of Limitations (Counts I through VI and VIII)
While a defendant may raise the running of the statute of limitations, normally as an affirmative defense, in a Rule 12(b)(6) motion to dismiss, dismissal is only appropriate if allegations on the face of the complaint clearly show that the claim is time-barred.*fn1 See Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 669 (7th Cir. 1998). Defendant contends that Counts I through VI and VIII are all subject to and barred by Illinois's two-year statute of limitations, as set forth in 735 ILCS 5/13-202. Jenkins does not contest that Counts I through VI and Count VIII are subject to this two-year limitations period. Instead, Jenkins argues that she timely filed the claims or, alternatively, that Amtrak waived its right to assert the statute of limitations defense due to equitable considerations. Because resolution of Amtrak's statute of limitations argument will inform the waiver analysis, the Court will address the statute of limitations argument first.
A. Counts I through VI Fall Outside of the Statute of Limitations Period
i. Governing Statute of Limitations Periods
Statutes of limitations are generally governed by the law of the forum state. Wells v. Simonds Abrasive Co., 345 U.S. 514, 517 (1953). As a result, this Court will apply Illinois law regarding the relevant limitations periods. As noted above, Amtrak contends, and Jenkins does not contest, that Counts I through VI and VIII are all subject to and barred by Illinois's two-year statute of limitations period, as set forth in 735 ILCS 5/13-202. Under Section 13-202, "Actions for damages for an injury to the person, or for false imprisonment . . . shall be commenced within 2 years next after the cause of action accrued." 735 ILCS 5/13-202. As relevant to this Action, the two-year limitations period applies to the following claims: (1) intentional infliction of emotional distress; (2) negligent infliction of emotion distress; (3) negligence; (4) violations of the ADA; (5) battery; and (6) false imprisonment. See Pavlik v. Kornhaber, 761 N.E.2d 175, 182, 186 (Ill. App. Ct. 2001) (intentional infliction of emotional distress and negligence); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 551 (7th Cir. 1996) (ADA claim); Hollander v. Brown, No. 05 C 0057, 2005 U.S. Dist. LEXIS 13601, at *7 (N.D. Ill. June 28, 2005) (battery). Section 13-202 does not, however, apply to Jenkins's's negligent misrepresentation claim (Count VIII). Instead, this latter claim is subject to a five-year limitations period under 735 ILCS 5/13-205. See Bachman v. Bear, Stearns & Co., 57 F. Supp. 2d 556, 559 (N.D. Ill. 1999).Because the Complaint reveals that Jenkins's filed her negligent misrepresentation claim within five years after the cause of action accrued, Amtrak's Motion to Dismiss is denied as to Count VIII.
ii. Jenkins Failed to file Counts I through VI within the Applicable Limitations Period
As noted above, Section 13-202 requires a party to commence all actions "for damages for an injury to the person, or for false imprisonment" within two years after the cause of action accrued. 735 ILCS 5/13-202. A plaintiff may voluntarily dismiss such action without prejudice at any time before the trial or hearing begins, provided that the plaintiff complies with the requirements set forth in Section 2-1009(a) of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1009. Where a case has been voluntarily dismissed, a party may commence a new action within one year after the dismissal or within the remaining period of limitation, whichever is greater. 735 ILCS 5/13-217. In this case, the causes of actions that form the bases of Counts I through VI allegedly accrued on August 12, 2004.*fn2 Jenkins commenced the First Action on August 10, 2005, well within the two-year limitations period required under Section 13-202. Jenkins's voluntary dismissal of First Action on March 10, 2006 triggered the one-year limitations period extension set forth under Section 13-217. Thus, Jenkins was required to re-file her suit by March 10, 2007. This Action was not filed, however, until one month after the limitations period ended on April 27, 2007. Consequently, Jenkins's Complaint reveals that she failed to timely file this Action.
Jenkins, citing to her Complaint for Discovery, contends that she commenced "the instant action" on August 14, 2006 when she filed the Complaint for Discovery. A complaint for discovery is authorized by Section 2-402 of the Illinois Code of Civil Procedure. Section 2-402, which creates a "procedural right" that "opens the door to a substantive right of broad discovery," Hugley v. Alcaraz, 494 N.E.2d 706, 710 (Ill. App. Ct. 1986), provides, in pertinent part, "The plaintiff in any civil action may designate as respondents in discovery in . . . [the] pleading those individual or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action." 735 ILCS 5/2-402. A respondent in discovery is not a party to a lawsuit. Allen v. Thorek Hosp., 656 N.E.2d 227, 233 (Ill. App. Ct. 1995). The respondent may be made a defendant in the cause of action even after the limitations period for that cause of action has run, as long as the plaintiff moves the court to convert the respondent into a defendant within the six month period following his having been named a respondent in discovery or, upon a showing of good cause, an extended period of time. 735 ILCS 5/2-402.
According to the Illinois Supreme Court, a complaint for discovery that names a defendant and respondents but fails to charge the respondents with actionable conduct or seek damages from them does not constitute a complaint at law as to the respondents. See Murphy v. Giardina, 413 N.E.2d 399, 401 (Ill. 1980) (complaint for discovery naming a defendant and respondents but failing charge the respondents with actionable conduct is not a new cause of action). Instead, the complaint for discovery is "simply a discovery device." Id.; see also Hugley, 494 N.E.2d at 710. Furthermore, while section 2-402 does not explicitly mandate the naming of a party defendant in the complaint for discovery, Illinois courts have consistently concluded that the failure to name a party defendant is fatal to the discovery action. See, e.g., Bogseth v. Diamond, 655 N.E.2d 888, 891 (Ill. 1995) (Section 2-402 "requires a plaintiff to name a real person or entity as a defendant"); Gonzales v. Pro Ambulance Serv., 579 N.E.2d 1184, 1186-87 (Ill. App. Ct. 1991) (Section 2-402 "requires naming at least one party as a defendant"); Jacobs v. Abbott Labs., 572 N.E.2d 1231, 1232 (Ill. App. Ct. 1991) (failure to name defendant rendered complaint for discovery fatally defective).
Drawing on the principles stated above, Amtrak contends that the Complaint for Discovery does not shield these claims from the statute of limitations bar. In support of this argument, Amtrak cites to Bogseth v. Emanuel, 655 N.E.2d 888 (Ill. 1995). In Bogseth, the Illinois Supreme Court was confronted with a set of consolidated appeals in which the plaintiffs filed a complaint for discovery, naming as the sole defendant a fictitious "John Doe" in addition to named respondents in discovery. Id. at 890. Within the six-month time period allotted, the plaintiffs converted the respondents in discovery to defendants. Id. Thereafter, the converted defendants in both cases filed a motion to dismiss, asserting that the court never had subject matter jurisdiction over the cause because, in bringing the action against "John Doe," the plaintiff did not comply with Section 2-402. Id. On appeal to the Illinois Supreme Court, the Bogseth court agreed. The Bogseth court reiterated that section 2-402 requires a plaintiff to name a real person or entity as defendant and that suits brought against fictitious parties are void ab initio. Id. at 891.Underlying this prohibition is the principle that a court may only entertain jurisdiction over matters in controversy between an actual plaintiff and actual defendant. Id. at 892. ...