The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendants' motion to dismiss. For the reasons stated below, we grant in part and deny in part the motion to dismiss.
Plaintiff Wilfored Gholson ("Gholson") initially filed an action against Defendant Village of Riverdale ("Riverdale") and individual officers in the Circuit Court of Cook County, Illinois, alleging violations of state law, violations of his rights under the Fourth and Fourteenth Amendments, and asking for damages pursuant to 42 U.S.C. § 1983 ("Section 1983"). Defendants in that case removed the action to this court in case number 06 C 6682 ("2006 Case"). On April 12, 2007, no one appeared on behalf of Gholson for a status hearing and the court continued the status hearing, warning that failure to appear at the status hearing could result in dismissal for want of prosecution. On April 25, 2007, Gholson filed an amended complaint adding Plaintiff Katrina Reese ("Reese") as a plaintiff in that action. On May 23, 2007, no one appeared on behalf of Gholson and Reese and the court entered a minute order stating: "[t]his matter is hereby dismissed, without prejudice, for want of prosecution pursuant to Local Rule 41.1." (OR 5/23/07 - 06 C 6682). On May 31, 2007, this court denied Gholson's and Reese's motion to vacate the dismissal.
On May 31, 2007, the same day that this court denied Gholson's and Reese's motion to vacate the dismissal of the 2006 Case, Gholson and Reese filed the instant action in the Circuit Court of Cook County, Illinois, stating in their complaint that the action is a re-filing of the 2006 Case that this court dismissed for lack of prosecution. The instant action is nearly identical to the 2006 Case. Plaintiffs allege that on April 23, 2006, Defendant Officers unlawfully entered Plaintiffs' apartment and falsely arrested Gholson, using excessive force. Defendants once again removed the action to federal court and the case was assigned to another judge in this district.
On June 29, 2007, Defendants filed a motion to dismiss the instant action, arguing that this action is an improper refiling of a previously dismissed case and that Plaintiffs' claims are time-barred. On March 6, 2008, the instant action was assigned to another judge in this district. On March 13, 2008, the instant action was reassigned to the undersigned judge.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). Under the current notice pleading standard in federal courts, a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "'provide the defendant with at least minimal notice of the claim,'" Kyle, 144 F.3d at 455(quoting Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995)), and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").
There are two issues posed in the instant motion to dismiss. The first is whether the instant action constitutes a refiling of a case that has already been adjudicated on the merits and is therefore barred under principles of res judicata. The second issue is whether any or all of Plaintiffs' claims are barred under the applicable statute of limitations.
The doctrine of res judicata,also known as "claim preclusion," bars parties from relitigating issues that should have been raised in a prior action when there has been a final judgment on the merits in that action. Highway J Citizens Group v. United States Dept. Of Transp., 456 F.3d 734, 741 (7th Cir. 2006); Allen v. McCurry, 449 U.S. 90, 94 (1980). Since the parties do not dispute that the instant action constitutes the refiling of the 2006 Case, the material issue is whether the 2006 Case is considered to have been adjudicated on the merits.
The 2006 Case was dismissed by this court for lack of prosecution. Pursuant to Local Rule 41.1, "[a]n order of dismissal for want of prosecution . . . may be entered if counsel fails to respond to a call of the case set by the court." N.D. Ill. L.R. 41.1. Federal Rule of Civil Procedure 41(b)("Rule 41(b)") states that "[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as a dismissal on the merits." Fed. R. Civ. P. 41(b). This court's order dissmissing the 2006 Case stated "[t]his matter is hereby dismissed, without prejudice, for want of prosecution pursuant to Local Rule 41.1." (OR 5/23/07 - 06 C 6682).
Defendants argue that since the 2006 Case was dismissed for lack of prosecution, it was a dismissal on the merits pursuant to Rule 41(b). Defendants further argue that since the 2006 Case was adjudicated on the merits and the instant action constitutes a refiling of that case, then this action is barred under the principles of res judicata. Plaintiffs argue that since the court's dismissal stated that it was "without prejudice" the court ...