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Yano v. City Colleges of Chicago

November 10, 2010

KYUNG HYE YANO, INDIVIDUALLY AND AS GUARDIAN/PARENT/NEXT FRIEND OF S.Y., A MINOR, PLAINTIFF,
v.
CITY COLLEGES OF CHICAGO; HARRY S. TRUMAN COLLEGE; MOHAMED ELMAAZAWI; PRISCILLA LANCKI; ELIA LOPEZ; ELIZABETH ROEGER; LYNN M. WALKER; PERVEZ RAHMAN; CHANCELLOR WAYNE WATSON; BOARD OF TRUSTEES, CITY COLLEGES OF CHICAGO; AND JOHN/JANE DOES, DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff, individually and as a guardian of S.Y., a minor, seeks leave to amend and supplement her complaint pursuant to Rule 15(a)(2). I dismissed Plaintiff's complaint in part leaving Counts I and II against the institutional defendants only on behalf of S.Y., Count IV, the § 1983 portion of Count VI against the individual defendants only, and Count VII. Specifically, Plaintiff seeks to add Gabriel Hose as a defendant to Count VII, assault, and to add a defamation count against new defendant, Professor Rudra Dundzila. For the following reasons, Plaintiff's motion to amend is granted in part and denied in part.

I. BACKGROUND

Plaintiff's complaint is rooted in alleged harassment and discrimination suffered by S.Y. at Truman College. S.Y., born on June 19, 1996 is "an academically gifted child" of Asian descent who entered Truman College in 2006 after graduating from high school at the age of 9. Kyung Hye Yano ("Yano" or "Plaintiff") is S.Y.'s mother. S.Y. completed 51 hours at Truman College before she withdrew because of the alleged harassment and discrimination she suffered.

Count VII of Plaintiff's complaint was based on the actions of an unknown individual who tailgated Plaintiff and her family. Plaintiff stated in the complaint that she was unable to identify the person behind the harassment because she had not obtained a copy of the Police Report from the April 2008 incident. Plaintiff has now obtained the Police Report and identified Gabriel Hose as the John/Jane Doe named in the complaint. Gabriel Hose was a professor at Truman College, and shared an office with another named Defendant, Mohamed El-Maazawi.

In Count VIII, Plaintiff brought a state law defamation claim alleging that certain Defendants made "false and malicious statements of fact about S.Y.'s intelligence, veracity, ethics and maturity in an effort to destroy her reputation and ability to pursue her education at Truman College." I dismissed Count VIII based on Defendants' immunity. Plaintiff now asks to add a defamation claim against Professor Dundzila based on a newly discovered email dated December 15, 2007.

II. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 15(a)(2), a party may amend its pleading with leave from the court, and the court "should freely give leave when justice so requires." Though this rule "reflects a liberal attitude" towards amending pleadings, a proposed amendment may be denied if the moving party "has unduly delayed in filing the motion, if the opposing party would suffer undue prejudice, or if the pleading is futile." Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008) (citations and quotation marks omitted).

A. Plaintiff's Defamation Claim*fn1

Plaintiff seeks to assert a new defamation claim against Professor Rudra Dundzila based on an email produced to Plaintiff during discovery. The email was sent by Professor Dundzila and dated December 15, 2007. In the email, Professor Dundzila describes Plaintiff as "psychotic," "lunatic," "crazy," "insane," and "a trouble maker." Likewise, Professor Dundzila describes S.Y. as "anti-social," and states that she is "NOT the gifted child her mother claims her to be," and "does very poorly in groups." Plaintiff will allege that the statements made by Professor Dundzila caused damage to both her and S.Y.'s reputations, and impacted the way they were both treated by professors and administrators at Truman College.

Defendant argues that the proposed new claim against Dr. Dundzila should be denied as futile because it is untimely. Illinois defamation actions have a one-year statute of limitations. 735 ILL. COMP. STAT. 5/13-201. The statute of limitations on a defamation claim generally begins to run on the date of publication of the allegedly defamatory material. Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradsheet, Inc., 334 N.E.2d 160, 161 (Ill. 1975). However, under certain circumstances, Illinois courts apply the "discovery rule" such that the statute of limitations does not accrue until the plaintiff knew or reasonably should have known of his or her injury. Blair v. Nevada Landing P'ship, 859 N.E.2d 1188, 1195 (Ill. App. Ct. 2006). The discovery rule should not be applied "unless the publication was hidden, inherently undiscoverable, or inherently unknowable." Id. Illinois also has a tolling statute that applies to minors. This statute tolls the statute of limitations of specified actions until two years after the person attains the age of eighteen. 735 ILL. COMP. STAT. 5/13-211.

Defamation claims are covered by this tolling statute.

Defendants argue that the new defamation is untimely and precluded by the statute of limitations on two grounds. Citing to the recent case of Peal v. Lee, 933 N.E.2d 450 (Ill. App. Ct. 2010), Defendants first argue that Plaintiff's defamation claim is precluded because she knew about her injury in 2008. In Peal, the court rejected the plaintiff's attempt to amend his complaint by bringing additional defamation claims against a new defendant, and adding a new defamation claim against an existing defendant. In the first instance, the plaintiff did not learn of the defamatory statement made by a colleague in 2005 until the colleague's deposition in 2009. The court found this claim time barred because the plaintiff knew that he had an injury and a cause of action in 2005. At that point "the statute of limitations began to run and the burden fell upon [the plaintiff] to inquire further." Id. at 461. The court noted that the plaintiff's "own negligence in failing to comprehensively investigate his cause of action [] was his own doing." Id. Similarly, the plaintiff sought to add a claim against an existing defendant, arguing ...


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