The opinion of the court was delivered by: Magistrate Judge Susan E. Cox
District Judge Blanche M. Manning
MEMORANDUM OPINION AND ORDER
Plaintiffs, Teresa Martin, Pete Mason, and their twin sons, Pierre Mason and Paris Mason, have brought suit against the City of Chicago, four named Chicago police officers, and other unknown Chicago police officers. Plaintiffs allege that certain officers, in the course of their duty, used excessive force, illegally searched the plaintiffs' home, and battered plaintiffs. Before the Court is plaintiffs' motion to amend their complaint to add four additional Chicago police officers. Defendants partially oppose this motion, arguing that insufficient evidence supports adding two of the officers and that plaintiffs are time barred from bringing state law battery claims against all four additional officers. For the following reasons, plaintiffs' motion is granted [dkt. 77].
Plaintiffs allege that on December 13, 2008 at approximately 11:30 p.m., the two fourteen year-old twin brothers, Pierre and Paris, were walking home from a party.*fn1 On their way home, they saw a large group of individuals circled around what appeared to be a fight.*fn2 The twins then heard gun shots and immediately both ran back home.*fn3 At some point, police officers pursued Pierre and Paris, and by the time the two were in front of their home, the officers ordered that they put their hands up.*fn4 The complaint alleges that the officers then struck Pierre several times and threw Paris to the ground.*fn5 Upon seeing this, their father, Pete, came out of the home.*fn6 Pete was then allegedly handcuffed, thrown face first into the ground, and hit over the head with an unknown object.*fn7
Plaintiffs next claim that the officers unlawfully searched plaintiffs' home before releasing them.*fn8
Plaintiffs filed a five count complaint against the City of Chicago, Officers James Obaldo, Stefan Szubski, Belinda Bernal, and Michael Carroll, and unknown Chicago police officers.*fn9 Three counts arise under 42 U.S.C. § 1983: (1) excessive force; (2) failure to intervene; and (3) illegal search. Plaintiffs also bring two state law claims: (4) common law battery and (5) a respondeat superior claim brought under the Local Governmental and Governmental Employees Tort Immunity Act.*fn10 Plaintiffs claim that discovery has revealed the identities of four additional officers that were present and participated in the alleged misconduct against plaintiffs: Officers Gerardo Quintero, William Langle, Peter Edwards, and Joseph White. Plaintiffs point to Chicago Police Department Event Query documents produced during discovery, which indicate that all four officers responded to a radio call for shots fired near the plaintiffs' home. Plaintiffs have also now had the opportunity to depose these officers, and they believe that there is adequate information linking the officers to the plaintiffs' injuries.
Under Federal Rule of Civil Procedure 15, the Court should freely give leave to amend a pleading.*fn11 However, leave will be denied where the amendment would be futile.*fn12 When, as here, neither party has moved for summary judgment, an amendment will be deemed futile if it would not withstand a motion to dismiss.*fn13 Generally, to withstand a motion to dismiss, there must be "enough facts to state a claim to relief that is plausible on its face."*fn14
First, defendants argue that there is no evidentiary basis to add Officers Edwards and White. It appears that the only reason defendants oppose the addition of these two officers, and not Officers Quintero or Langle, is because Office of Emergency Management and Communications ("OEMC") records show Officers Edwards and White one block away from plaintiffs' home on the night of the incident.*fn15 (It is not clear what records or information link Officers Quintero or Langle to the alleged incident. But because defendants do not oppose the motion to amend as to those officers, we need not address that issue.). The OEMC records indicate that at 11:57 p.m on December 13, 2008, Officers Edwards and White responded to a call for shots fired and reported being at the address of 7244 S. Sangamon, which is one block from Plaintiffs' home. Plaintiffs, however, argue that these records, along with deposition testimony, show that Officers Edwards and White were responding to the same underlying incident - the report of shots fired - that resulted in the police officers approaching the twins outside their home. Furthermore, plaintiffs assert that a record stating that these officers were one block away is not conclusive that the officers were, in fact, one block away, or that they, perhaps, did not change their location a moment later.
We agree. To determine whether these officers were present during the alleged misconduct, and whether they even participated in the alleged claims, is not the purpose of this motion. In other words, one OEMC record indicating that these officers were one block away at a time close to when the alleged unlawful conduct occurred is not dispositive as to the officers' involvement. The Court, therefore, grants the motion as to Officers Edwards and White. Second, defendants contend, in a single paragraph, that the state law battery claim against the four new officers is time barred. Plaintiffs, however, argue that the statute of limitations should be tolled (and defendants make no argument regarding tolling). The statute of limitations for civil actions brought against local entities or its employees is limited to one year from the date the injury is received.*fn16 However, under Illinois law, equitable estoppel "comes into play if the defendant takes active steps to prevent the plaintiff from suing in time."*fn17 Similarly, equitable tolling permits a plaintiff to bring an action after the statutory period, if he or she has exercised reasonable diligence in attempting to discover "vital information bearing on the existence of his claim."*fn18 An example of equitable tolling is "when a plaintiff has 'been injured and known he was injured, at which point the statute of limitations began to run, yet have been unable despite all reasonable diligence to learn ... the wrongdoer's identity.'"*fn19 Courts also state that the plaintiff must be "prevented from asserting his or her rights in some extraordinary way."*fn20 Both of these doctrines "must be applied with caution."*fn21
We note that in Fidelity National Title Insurance Company of New York v.Howard Savings Bank, the Seventh Circuit placed some doubt around whether Illinois recognizes the doctrine of equitable tolling because of apparent disparate formulations of equitable tolling in the Illinois case law.*fn22 In that opinion, however, Judge Posner stated equitable tolling is a "common place" doctrine and "venture[d] the guess that [Illinois] does" accept the doctrine.*fn23 Furthermore, "[w]hat is important is simply that once the limitations period has expired, any further extension is limited to the time necessary to find such additional information as the plaintiff absolutely needs in order to be able to file a suit."*fn24
Here, the alleged battery occurred on December 13, 2008, approximately 18 months ago. Therefore, it exceeds the one-year time limit in the statute.*fn25 However, plaintiffs argue that equitable tolling and estoppel are permitted because defendants cancelled depositions on multiple occasions.
Plaintiffs also argue that they have been diligently attempting to discover the identities of the officers. Approximately an hour following the incident, plaintiffs state that they dialed 9-1-1 to report the officers' alleged abuse of the plaintiffs. Plaintiffs also represent that they provided statements to the Independent Police Review Authority ("IPRA") one month following the incident in an effort to expedite the investigation. Furthermore, plaintiffs contend that defendants did not respond to plaintiffs' first set of written discovery until January 8, 2010. Plaintiffs also complain that they requested dispatch records and attendance ...