Williams, Eulah v. Lampe, John

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1497
EULAH WILLIAMS,
Plaintiff-Appellant,
v.
JOHN LAMPE and VILLAGE OF
CAHOKIA POLICE DEPARTMENT,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03 C 551—David R. Herndon, Judge.
____________
ARGUED DECEMBER 15, 2004—DECIDED MARCH 1, 2005
____________
Before BAUER, COFFEY and SYKES, Circuit Judges.
PER CURIAM. On September 22, 2000, Eulah Williams
filed a complaint in Illinois state court alleging state-
law tort claims against the Village of Cahokia, Illinois,
and Cahokia Police Officer John Lampe for injuries that
Lampe allegedly inflicted on September 25, 1998, almost
two years before. The defendants answered an amended
version of the complaint, failing to raise any affirmative
defenses. Nevertheless, almost two years later they
moved to dismiss on the ground that the claims were barred
by a one-year statute of limitations. With leave of court,
Williams filed another amended complaint based on the
same events, but claiming for the first time under 42 U.S.C.
2 No. 04-1497
§ 1983 that her constitutional rights were violated. The
defendants removed the case to federal court and promptly
moved to dismiss, arguing that all of the claims were time-
barred. The district court dismissed and Williams appeals,
arguing only that the defendants waived their right to
assert the statute of limitations defense by not asserting it
“at the earliest possible moment.” We affirm.
In her original complaint Williams alleged that Lampe
injured her back and head by dragging her down stairs at
the Cahokia police station and set forth state-law tort
claims under theories of “intentional conduct” and “negli-
gence.” After two amendments of no consequence here, the
defendants answered Williams’ second amended com-
plaint in September 2001. Though the parties presum-
ably proceeded with discovery, there is no record of any
further activity in the state court before July 2003 when the
defendants moved to dismiss the case, arguing for the first
time that the original complaint was not filed within the
one-year statute of limitations. The state judge implicitly
allowed the defense by granting Williams leave to amend
her complaint yet again to try and meet the defense.
In her third amended complaint, filed on July 29, 2003,
Williams retained her common law claims and for the
first time set forth a claim under § 1983. Accordingly,
the defendants removed the case to federal court and filed a
motion under Fed. R. Civ. P. 12(b)(6) to dismiss
the complaint on the grounds that the one-year statute
of limitations had run on her state-law claims before she
filed her original complaint and that the two-year statute of
limitations had run on her § 1983 claim before she amended
her complaint to include it. In January 2004 the district
court granted the defendants’ motion and dismissed the
case with prejudice. The judge held that Williams’ § 1983
claim was time-barred because she did not raise it until she
filed her third amended complaint in July 2003, well over
two years (almost five years, actually) after the alleged
No. 04-1497 3
violation. The judge held that Williams’ state tort claims
were time-barred because her original complaint was not
filed within the one-year period allowed in Illinois for civil
actions based on common law claims against governmental
entities and their employees.
Williams’ only argument on appeal is that the defendants
waived the statute of limitations defense by not asserting it
“at the earliest possible moment.” The following legal
background explains why this is the only issue before us.
First, as the district court concluded, the statute of limita-
tions applicable to Williams’ state-law claims is one year. A
two-year statute of limitations generally applies to personal
injury actions in Illinois, 735 Ill. Comp. Stat. 5/13-202; thus,
§ 1983 claims in Illinois are also governed by a two-year
limitations period, Hileman v. Maze, 367 F.3d 694, 696 (7th
Cir. 2004). Illinois local governmental entities and their
employees, however, benefit from a one-year statute of
limitations for “civil actions” against them. 745 Ill. Comp.
Stat. 10/8-101. While the two-year period still applies to
§ 1983 claims against such defendants, Ashafa v. City of
Chicago, 146 F.3d 459, 462 (7th Cir. 1998), the one-year
period applies to state-law claims that are joined with a §
1983 claim. American Nat’l Bank & Trust Co. of Chi. v.
Town of Cicero, No. 01 C 1396, 2001 WL 1631871, *14
(N.D. Ill. 2001). Therefore, Williams’ state-law claims were,
as she concedes, already time-barred when they were first
brought. American Nat’l Bank & Trust Co. of Chi., 2001 WL
1631871, at *14.
Second, the district court’s unspoken assumption that
Williams’ § 1983 claim did not relate back to her orig-
inal complaint was also correct. In order to benefit from
Fed. R. Civ. P. 15(c)’s “relation back” doctrine, the orig-
inal complaint must have been timely filed. Henderson v.
Bolanda, 253 F.3d 928, 931-32 (7th Cir. 2001). If an original
complaint against Illinois local governmental defendants is
not filed within one year of the injury and does not claim a
4 No. 04-1497
constitutional violation, we will not deem a later § 1983
claim timely merely because it rests on the same factual
allegations included in the original complaint. Id. at 932 &
n.3. As the original complaint was not timely, it cannot “act
as a lifeline for a later complaint, filed after the two-year
statute of limitations for the claims which it contained.” Id.
Thus, even though Williams’ § 1983 claim arises from the
same incident as her tort claims, and even though her
original complaint was filed within two years of that
incident, her § 1983 was time-barred because the tort
claims were not timely filed.
Williams argues, however, that the defendants waived
their limitations defense to all her claims by not asserting it
in their answer to the second amended complaint or at any
other time during the next twenty months. This argument
of course is frivolous with respect to her § 1983 claim
insofar as the defendants moved to dismiss that claim as
soon as Williams amended her complaint to add it. See
Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999)
(holding that failure to plead affirmative defense to original
complaint does not amount to waiver where defense is
raised in response to amended complaint).
That leaves only Williams’ contention that the defendants
waived their limitations defense to the state-law claims by
failing to raise it earlier in the state court proceedings.
Though the district court dismissed the federal claim
forming the basis for removal jurisdiction, the court prop-
erly retained jurisdiction to decide this remaining issue. See
28 U.S.C. § 1367(c)(2) (district court has discretion to retain
jurisdiction after dismissing all claims forming basis for
federal jurisdiction); Baker v. Kingsley, 387 F.3d 655-56 (7th
Cir. 2004) (applying same rule in removal context). A
removed action proceeds as if it had originally been brought
in federal court; thus, we take the case as though every-
thing done in the state court had been done in the federal
district court. See First Republic Bank Fort Worth v.
No. 04-1497 5
Norglass, Inc., 958 F.2d 117, 119 (5th Cir. 1992); Chicago
R.I. & P.R. Co. v. Igoe, 212 F.2d 378, 382 (7th Cir. 1954).
Federal Rule of Civil Procedure 8(c) requires a defendant to
include affirmative defenses like a statute of limitations in
its answer, which the defendants did not do. However, the
district court has the discretion to allow an answer to be
amended to assert an affirmative defense not raised
initially. See Fed. R. Civ. P. 15(a); Jackson v. Rockford
Housing Auth. 213 F.3d 389, 392-93 (7th Cir. 2000)
(“Amendment is allowed absent undue surprise or prejudice
to the plaintiff.”).
In this case the limitations defense came late as to the
state-law claims since the defendants already had answered
Williams’ second amended complaint. Nevertheless, we can
infer that the state judge implicitly allowed the defense to
be asserted because rather than denying the motion, he
granted Williams leave to amend her complaint in response
to the defendants’ motion. Williams asserts that the state
judge abused his discretion in allowing the defense to be
asserted. Though she does not develop the argument, she
points to our decision in Venters v. City of Delphi, 123 F.3d
956 (7th Cir. 1997). In Venters, the district judge allowed
assertion of a limitations defense even though the defen-
dants raised it for the first time in a reply memorandum in
support of their summary judgment motion, on the eve of
oral argument. Id. at 968. We reversed because the plaintiff
was prejudiced by the defendants’ delay as the delay
effectively “deprived [her] of any reasonable opportunity
to address that defense.” Id. By permitting the defendant to
raise the issue at the eleventh hour and giving the plaintiff
almost no time to respond, we concluded the district court
had “bushwhacked” the plaintiff. See id. at 969. In contrast,
the state judge here gave Williams time to respond to the
defendants’ limitations defense. The purpose of Rule 8(c) is
to give the opposing party notice of the affirmative defense
and a chance to rebut it. Blonder-Tongue Labs., Inc. v.
6 No. 04-1497
Univ. of Ill. Found., 402 U.S. 313, 350 (1971). Thus, where
the plaintiff has an opportunity to respond to a late affirma-
tive defense, he cannot establish prejudice merely by
showing that the case has progressed significantly since the
defendants answered his complaint. See Jackson, 213 F.3d
at 393; Brinkley v. Harbour Recreation Club, 180 F.3d 598,
612 (4th Cir. 1999); Camarillo v. McCarthy, 998 F.2d 638,
639 (9th Cir. 1993); Moore, Owen, Thomas & Co. v. Coffey,
992 F.2d 1439, 1445 (6th Cir. 1993); Kleinknecht v. Gettys-
burg Coll., 989 F.2d 1360, 1374 (3d Cir. 1993). Because
Williams does not suggest any prejudice to her from the
defendants’ delay other than her subsequent preparation
for trial, the court did not abuse its discretion in allow-
ing the defense.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-1-05