The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Whether or not this phenomenon is attributable to the fact that most practitioners in this District Court are Illinois lawyers who are trained in and accustomed to Illinois state court practice, it is commonplace for plaintiffs' counsel in cases before this Court and its colleagues to set out separate so-called "counts" in a complaint--"counts" that mirror the Illinois state law practice of presenting the same set of facts as actionable under several different legal theories, even though that structure does not comply with either the literal language or the purpose of Fed. R. Civ. P. ("Rule") 10(b), the Rules' provision that speaks of counts:
If doing so would promote clarity, each claim founded on a separate transaction or occurrence--and each defense other than a denial--must be stated in a separate count or defense.
Thus plaintiffs' counsel frequently assert various theories of recovery--sometimes including mistaken theories--to carve up a single claim (the operative pleading concept in federal practice) into such separate counts. In such situations, it often falls to this Court's lot to draw the attention of counsel to NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir. 1992) and to its teaching that differentiates between the federal concept of a "claim" and the state concept of a "cause of action."
This case presents a major, and quite different, variation on that theme. Here defendants challenge plaintiffs' addition of a federal-question theory of recovery--advanced under 42 U.S.C. §1983 ("Section 1983")--to a complaint that replaces a previously-dismissed state law action. That second lawsuit, like the first one, was filed in the Circuit Court of Cook County--hence the new federally grounded theory, like each of the reasserted state law theories of recovery, was properly set out in a separate count (as a separate "cause of action"). Defendants removed the new action to this District Court and have now moved to dismiss the federally-based counts on the theory that the refiled lawsuit was limited to "an identical cause of action."
Thus the task at hand in addressing defendants' current Rule 12(b)(6) motion to dismiss calls for this Court to construe an Illinois statute, 735 ILCS 5/13-217,*fn1 which speaks of a plaintiff's right to "commence a new action" after an earlier action has been dismissed for any one of several reasons (the provision relevant to this case is one that speaks of an earlier dismissal "for want of prosecution"). If defendants' challenge is well-founded, plaintiffs' effort to call Section 1983 into play would fail, for the two-year statute of limitations would bar any attempted reassertion of that effort at this time.
In support of their motion, defendants argue that a new cause of action (the addition of a new theory of recovery in the counts asserting Section 1983 liability) is not encompassed within the "commence a new action" savings clause in Section 13-217, even though that new theory is clearly embraced within the same claim (the operative federal concept) that also forms the gravamen of the state law grounds that had been advanced in the original lawsuit (the one that was dismissed for want of prosecution) and that have been carried forward into plaintiffs' new action. For their part, plaintiffs counter that the operative concept is the same one that is embodied in Section 2-616(b), the relation-back provision that codifies essentially the same test as Rule 15(c) in the federal context. Here is Section 2-616(b)(emphasis added):
The cause of action, cross claim or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross claim interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action, cross claim or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the original pleading so amended.
To support their position, defendants primarily reach back to the 19th century decision by the Illinois Supreme Court in Gibbs v. Crane Elevator Co., 180 Ill. 191, 194 (1899) and to a 40-plus-year-old Court of Appeals decision that quoted the "same identical cause of action" language that had been employed in Gibbs (Butterman v. Steiner, 343 F.2d 519, 520 (7th Cir. 1965)).*fn2 But plaintiffs point instead to far more recent Illinois authority that plainly supports their position. First, although Bryson v. News Am. Publ'ns., Inc., 174 Ill.2d 77, 106-07, 672 N.E.2d 1207, 1223 (1996) addressed a different ground for the earlier dismissal that is also encompassed within the one-year savings clause provisions of Section 13-217, the principle is of course identical--and here is what Bryson said (citations omitted):
The defendants do not argue that section 2-616(b) does not apply simply because the original action was dismissed by the federal court and refiled in the circuit court pursuant to section 13-217. We would reject such an argument even if the defendants had raised it. Both section 13-217 and section 2-616(b) are remedial in nature and should be liberally construed in favor of hearing the plaintiff's claim.
Both provisions were enacted to facilitate the disposition of litigation upon the merits and to protect plaintiffs from losing a cause of action because of a technical default unrelated to the merits. Where the original action was timely filed, the plaintiff should not be penalized simply for availing herself of the provisions of sections 13-217. We therefore conclude that the first requirement for invoking section 2-616(b) is met here.
And listen to the earlier opinion by the Illinois Appellate Court in Frankenthal v. Grand Trunk R.R., 120 Ill.App.3d 409, 417, 458 N.E.2d 530, 537 (1st Dist. 1983)(citations omitted)--a decision cited favorably by Bryson twice in the above-quoted excerpt:
Section 2-616(b) allows a party to amend pleadings and include a cause of action which grew out of the same transaction or ...