The opinion of the court was delivered by: Charles P. Kocoras United States District Judge
CHARLES P. KOCORAS, District Judge
This matter comes before the court on the motion of Defendant City of Wheaton ("Wheaton") to dismiss two counts of Plaintiff Alfredo Huerta's complaint. For the reasons set forth below, the motion is granted in part and denied in part.
According to the allegations of Huerta's second amended complaint, which we must accept as true for purposes of this motion,*fn1 Huerta was at his home on March 10, 2008, when Carol Stream police officers arrived to investigate a domestic disturbance call. When the officers entered his home, Huerta claims that they threw him to the ground, stomped on his neck, and arrested him without cause. During the course of the arrest, the Carol Stream officers were joined by police from other municipalities. According to the complaint, an unknown female officer, employed by either the Village of Glendale Heights police department or the Wheaton police department, referred to Huerta as a "coke head" in front of his friends and family and struck him while he was handcuffed.
On March 9, 2009, Huerta filed suit against Carol Stream, its officers, Glendale Heights, and the unknown female officer. The complaint alleged false arrest and excessive force pursuant to 42 U.S.C. § 1983, state law claims of defamation per se, battery, intentional infliction of emotional distress, respondeat superior, and indemnification.
Discovery began in August 2009 and proceeded for seven months before Huerta amended his complaint in March 2010 to name Wheaton as a defendant. The theory advanced contends that the unknown officer may have worked for Wheaton rather than Glendale Heights (though Glendale Heights is still named as a defendant in the alternative). The complaint claims that if Wheaton is indeed the employer of the unknown officer, it would be responsible for her alleged illegal actions under the doctrine of respondeat superior as well as having a duty to indemnify the officer. Wheaton now moves to dismiss both counts against it pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, asserting that the applicable statute of limitations had expired before Huerta amended his complaint to add it as a party.
A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, construe allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations within a complaint must raise a claim for relief "above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To state a cognizable claim, a complaint must describe the claim in sufficient detail to give the defendant notice of what it is and the ground upon which it rests and plausibly suggest that the plaintiff has a right to relief. EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007).
A complaint's legal sufficiency is not compromised simply because it does not anticipate or otherwise preemptively address potential defenses. Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). If, however, the presence of an affirmative defense is apparent from the allegations contained within a complaint, the affected allegations can be dismissed before a responsive pleading is filed. Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002). If the presence of an affirmative defense cannot be established without resort to information outside the complaint, it is improper to grant a motion to dismiss on the basis that an affirmative defense exists. See Deckard v. General Motors Corp., 307 F.3d 556, 560 (7th Cir. 2002).
With these principles in mind, we turn to the instant motion.
The counts at issue in this motion are Counts X and XI of the second amended complaint, which seek to hold Wheaton accountable for the alleged battery, defamation, and intentional infliction of emotional distress by the unknown officer either through the doctrine of respondeat superior or through indemnification. For claims such as those asserted in Huerta's complaint against Wheaton, Illinois provides a one-year statute of limitations period. 745 ILCS 10/8-101(a). Under the terms of the statute, the year begins either on the date that the injury occurred or that the cause of action accrued. Wheaton argues that these triggers occurred on March 10, 2008, the date of the arrest. If this assertion is correct, the claims against Wheaton, first filed on March 8, 2010, would be time-barred. Although untimely filing is an affirmative defense and therefore not typically amenable to adjudication on a motion to ...