Charles Anderson v. Catholic Bishop of Chicago, et al

Filing

Filed opinion of the court by Judge Rovner. AFFIRMED. Diane P. Wood, Chief Judge; Richard D. Cudahy, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6587384-1] [6587384] [13-1803]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 13-1803
CHARLES ANDERSON, Individually and
on Behalf of a Class of All Similarly
Situated Persons,
Plaintiff-Appellant,
v.
CATHOLIC BISHOP OF CHICAGO,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cv-07188 — Rubén Castillo, Chief Judge.

ARGUED NOVEMBER 14, 2013 — DECIDED JULY 2, 2014

Before WOOD, Chief Judge, and CUDAHY and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Charles Anderson brought an action
against the Holy See and the Catholic Bishop of Chicago (the
“Catholic Bishop”), alleging that he was sexually abused by
priests and other employees of the Catholic Church in the

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1950s and 1960s. The district court granted a motion to dismiss
the complaint with prejudice as to the Catholic Bishop, and,
because the Holy See had not been successfully served in the
case, dismissed without prejudice the claims against the Holy
See until valid service was obtained. Anderson now appeals
the dismissal of his complaint, as well as the district court’s
refusal to allow amendment of the complaint following that
dismissal or to grant the Rule 59(e) and Rule 60(b) motions.
Anderson alleged in his complaint numerous instances of
abuse, including abuse by Rev. Father Cosmo at St. Joseph’s
Orphanage in Lisle, IL in the 1950s, abuse by a Catholic priest
(since laicized), Thomas Windham, at Maryville Academy on
or around 1960, and abuse by four other lay employees of
Maryville Academy in separate incidents. Anderson alleged
that as a result of the abuse, he required continuous psychological counseling and spent most of his adult life in penal
institutions; at the time of the complaint, Anderson was an
inmate at Shawnee Correctional Center in Vienna, Illinois.
The complaint explicitly acknowledged, however, that the
“alleged sex abuse occurred a sufficient number of years in the
past such that any legal sex abuse claim based on said abuse
would or could be barred by the applicable Illinois statute of
limitations and/or statute of repose.” Complaint ¶1. That
contention is borne out by the facts alleged in the complaint.
Anderson was born in 1951, and alleges injuries arising from
abuse that occurred on or about 1960. Under Illinois law, “the
limitations period governing a claim is determined by the
nature of the plaintiff’s injury rather than the nature of the facts
from which the claim arises.” Doe A. v. Diocese of Dallas, 917
N.E.2d 475, 487 (Ill. 2009). Under a statute effective July 1, 1991,

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Illinois established a statute of repose for actions based on
childhood sexual abuse which required that all such claims be
brought within 2 years of the date that the victim discovers, or
by reasonable diligence should have discovered, that the abuse
occurred and caused that injury, “but in no event may an
action for personal injury based on childhood sexual abuse be
commenced more than 12 years after the date on which the
person abused attains the age of 18 years.” 735 ILCS § 5/13202.2(b) (1992). That statute thus mandated that any claims for
personal injury based on childhood sexual abuse had to be
brought by the plaintiff’s thirtieth birthday, and as a statute of
repose it operated to bar actions regardless of whether the
plaintiff had discovered the injury. Orlak v. Loyola Univ. Health
System, 885 N.E.2d 999, 1003 (Ill. 2007); Michigan Indiana
Condominium Ass'n v. Michigan Place, LLC, 8 N.E.3d 1246, 2014
WL 1672016 at 8 (Ill. App. 1 Dist. April 24, 2014).
That statute of repose was repealed effective January 1,
1994, but the repeal does not avoid the impact of the statute of
repose as to Anderson because his claims were extinguished
prior to the repeal. In M.E.H. v. L.H., 685 N.E.2d 335, 339 (Ill.
1997), the Illinois Supreme Court addressed an analogous case
in which the persons alleging childhood sexual abuse had
turned 30 long before the 1991 statute of repose and whose
claims therefore were extinguished by that statute before it was
repealed in 1994. The M.E.H. court noted that for over a
hundred years it had held that once a limitations period has
expired, a defendant has a vested right in asserting the bar of
that limitations period as a defense to a cause of action, and
that the right cannot be taken away without offending the due
process protections of the Illinois Constitution. Id. The court

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further held that the rule applies equally to statutes of repose,
and that claims time-barred under the old law therefore
remained time-barred even after the repose period was
abolished in the subsequent legislative action. Id.; Doe A., 917
N.E.2d at 484. Accordingly, under the Illinois statute of repose
applicable to Anderson’s claims, his claims were barred once
he reached the age of 30 or—because he turned 30 in 1981
before the statute of repose became effective—his claims were
time-barred if he failed to assert them within a reasonable time
period after that effective date. See M.E.H., 685 N.E.2d at
340–41. He does not, and cannot, argue that an action brought
in 2011, 20 years after that effective date, met that reasonable
time standard. See generally id. (noting that in any case it
would defeat the purpose to allow a period greater than the
repose period itself of 12 years, but that reasonableness should
not be defined by that statutory repose period and finding the
nearly 4 year delay not reasonable). Therefore, on its face, the
complaint establishes the affirmative defense that his claim is
barred by the statute of repose.
Anderson attempts to avoid the clear impact of that statute
of repose by alleging in his complaint that by its statements
and actions the defendants were precluded under principles of
estoppel and waiver from asserting the statute of repose. The
district court ultimately rejected that argument, but before
considering Anderson’s challenge to the district court’s
granting of that motion to dismiss, we must first consider
whether we have appellate jurisdiction. Although the claims
against the Catholic Bishop were dismissed with prejudice
based on that statute of repose, the claims against the Holy See
were dismissed without prejudice based upon the failure of

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Anderson to obtain proper service on the Holy See. Normally,
that sort of split opinion would not be considered “final” and
therefore appealable under 28 U.S.C. § 1291 because it does not
wind up the entire litigation in the district court and therefore
presents the prospect of piecemeal appeals. Palka v. City of
Chicago, 662 F.3d 428, 433 (7th Cir. 2011). In some circumstances, however, dismissals without prejudice are immediately appealable, thus resolving that finality concern.
Our opinions have used varying language in assessing the
appealability of dismissals without prejudice, from stating that
such dismissals are “canonically non-final” to characterizing
such dismissals as appealable unless the defect requiring
dismissal is immediately curable. See Doss v. Clearwater Title
Co., 551 F.3d 634, 639 (7th Cir. 2008) and cases cited therein
(canonically non-final) and Schering-Plough Healthcare Products,
Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 507 (7th Cir. 2009)
(“only if the defect that required dismissal is immediately
curable is the dismissal nonappealable”). The difference in
language may be more in emphasis than in effect, but the cases
agree that dismissals without prejudice are not appealable
where the reason for the dismissal is an easily fixable problem
because in such a case the district court anticipates that the
defect will be corrected and the case is not finished. See
Schering-Plough, 586 F.3d at 506–07. Even if that defect is
correctable, however, the dismissal will be appealable if the
otherwise revivable claim cannot be refiled because the statute
of limitations has run. Palka, 662 F.3d at 433; Doss, 551 F.3d at
639; Cardenas v. City of Chicago, 646 F.3d 1001, 1008 (7th Cir.
2011). In such a case, the bar of the limitations period effectively terminates the litigation as surely as a dismissal with

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prejudice, and therefore the dismissal is appealable regardless
of its characterization. Id. Here, the claim against the Holy See
is identical to that against the Catholic Bishop, and in fact
Anderson alleges that the Catholic Bishop acted as an agent of
the Holy See. Those claims thus are also filed beyond the
statute of repose and that problem cannot be redressed by
refiling and properly obtaining service. Accordingly, the
dismissal without prejudice of the claim against the Holy See
does not prevent us from asserting appellate jurisdiction over
the claim on appeal that was dismissed with prejudice, because
the claims are all immediately appealable.
We turn then to the merits of the appeal. Anderson alleges
that the district court erred in granting the motion to dismiss
the complaint. Anderson acknowledges that on its face his
claims in the complaint would appear to be time-barred. He
asserts, however, that the limitations period does not operate
to preclude his action because the defendants engaged in
actions that tolled it or prevented them from relying on it.
Essentially, Anderson relies on numerous alternative legal
theories to establish that the defendants, by their conduct,
disclaimed reliance on the statute of repose. He asserts that
such conduct raises issues of waiver, promissory estoppel,
judicial estoppel, and estoppel by conduct, which present
mixed questions of law and fact and cannot be resolved in a
motion to dismiss.
Anderson does not present any legal support whatsoever
for that contention. He cites only to cases such as Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 (2007), which discuss that a
complaint must meet the plausibility standard and must
contain facts sufficient to raise a reasonable expectation that

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discovery will reveal evidence supporting the plaintiff’s
allegations. Although contending that the limitations period
does not apply based on various estoppel and waiver theories,
Anderson does not cite any caselaw as to those principles, and
does not even set forth in general the standards for estoppel
and waiver. His argument consists of a recitation of facts
followed by conclusory allegations that those facts establish
estoppel and waiver. We have repeatedly held that arguments
not properly developed on appeal may be waived. Puffer v.
Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012); Nelson v.
Napolitano, 657 F.3d 586, 590 (7th Cir. 2011). “Neither the
district court nor this court are obliged to research and construct legal arguments for parties, especially when they are
represented by counsel.” Nelson, 657 F.3d at 590. Because the
preclusive effect of the statute of repose is the basis of our
appellate jurisdiction analysis as well, however, and the issues
were addressed on the merits by the appellees, we briefly
consider Anderson’s contentions.
Anderson relies primarily on correspondence between his
attorneys and the attorneys for the defendants beginning in
2003 when he first explored the possibility of a legal claim
against the defendants. He maintains that in that correspondence the defendants agreed not to pursue a limitations
defense. The facts in the complaint, including that correspondence, however, do not raise a facially plausible claim of
estoppel or waiver. Anderson relies in part on a letter dated
April 15, 2005, from his own attorney, and characterizes the
following language in that letter as reflecting an agreement by
the Catholic Bishop not to assert a statute of limitations
defense:

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Mr. Anderson has agreed not to file a lawsuit against
the Archdiocese of Chicago but rather to submit to
arbitration/ mediation based on the Archdiocese
agreeing not to assert a statute of limitations defense.
However, we have determined that by filing a “suit”
for discovery only, that does not name the Archdiocese, we could use the device to have Mr. Anderson
visit Chicago [presumably from the correctional
institution in which he resided]. …

The letter included a draft suit, and indicated that Anderson would proceed with the suit if he did not receive any
response within a week.
The Catholic Bishop subsequently conducted an investigation into Anderson’s claims, including visiting Anderson at
Shawnee Correctional Center and obtaining statements from
him detailing the alleged abuse. In a letter dated March 28,
2007, the Catholic Bishop stated that its Review Board had
concluded that there was no reasonable cause to believe that
Thomas Windham had abused Anderson, that it was in the
process of analyzing the allegations as to the others, and that
in the meantime it was interested in learning what Anderson
needed in order to heal. Approximately two months later, the
Catholic Bishop, in a May 11, 2007 letter, again addressed the
possibility of providing some level of aid to Anderson. That
letter, which is relied upon by Anderson in this appeal,
emphasized that the claims were beyond the statute of limitations, but asked what Anderson would need from it in order to
heal. Because this letter forms the crux of much of Anderson’s
argument, we set forth the language in the body of that letter
in its entirety:

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We have received your letter dated May 9, 2007. As
you know, because your client was born before
January 1, 1964, his claims are barred by the statute of
repose. 735 ILCS 5/13-202.2. See M.E.H. v. L.H., 177
Ill.2d 207, 685 N.E.2d 335 (1997); Galloway v. Diocese of
Springfield, 367 Ill.App.3d 997, 857 N.E.2d 737 (5th
Dist. 2006); Kuch v. Catholic Bishop of Chicago, 366
Ill.App.3d 997, 857 N.E.2d 737 (1st Dist. 2006), appeal
denied 221 Ill.2d 640, 857 N.E.2d 673 (2006); Doe v.
Catholic Bishop of Chicago, No. 04 L 002661. (Cir. Ct. of
Cook Co. Sept. 15, 2005); John Doe 85 v. The Roman
Catholic Diocese of Joliet, No. 2003-L-1011 (Cir. Ct. of
DuPage County, Aug. 29, 2006).
Nonetheless, as I discussed with you on March 12,
2007 and as I stated in my letter of March 28, 2007,
rather than treat this as strictly a legal matter, our
client would like to respond compassionately to Mr.
Anderson’s claims. Therefore, we are in a process of
analyzing these allegations. However, before we can
move forward on this, we need your demand. After
we receive your demand and have completed our
review, we would be pleased to discuss this claim
with you.
We look forward to hearing from you.
Complaint, Exh. B. In response to that letter, on June 6, 2007,
Anderson sent to the Catholic Bishop a written demand for
$6.5 million as compensation for the injuries stemming from
the alleged abuse. The reply from the Catholic Bishop of June
23 offered only “support services,” and this litigation ensued.

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Those communications by the Catholic Bishop do not
provide a basis for Anderson’s claims of promissory estoppel
or waiver. Under Illinois law, promissory estoppel is a theory
that allows relief where a promise has been made that was
relied upon by the promisee to his detriment such that it would
be a fraud or injustice not to enforce the promise. Newton
Tractor Sales, Inc. v. Kubota Tractor Corp., 906 N.E.2d 520, 526
(Ill. 2009). Waiver applies in situations in which a party
intentionally relinquishes a known right or the party’s consent
warrants an inference of such relinquishment. Gibbs v. Top Gun
Delivery and Moving Services, Inc., 928 N.E.2d 503, 510 (Ill. App.
1 Dist. 2010); Northern Trust Co. v. Oxford Speaker Co., 440
N.E.2d 968, 972 (Ill. App. 1 Dist. 1982). Waiver may be express
or implied, but “the evidence must show a ‘clear, unequivocal
and decisive act of a party’ demonstrating an intent to waive
the known right.” Occidental Fire & Cas. Co. of North Carolina v.
Continental Bank N.A., 918 F.2d 1312, 1320 (7th Cir. 1990),
quoting Washburn v. Union Nat'l Bank and Trust Co. of Joliet, 502
N.E.2d 739, 742 (Ill. App. 3d Dist. 1986). Unlike estoppel, a
party asserting a waiver need not demonstrate that he was
misled to his injury or that prejudice resulted from it. Northern
Trust Co., 440 N.E.2d at 972. Anderson cannot succeed under
either theory.
First, Anderson’s claim is problematic because it was timebarred in 1991, and the first communication with the Catholic
Bishop occurred in 2002 or 2003. Therefore, Anderson cannot
demonstrate that he reasonably relied upon any communication of the Catholic Bishop in foregoing the filing of his
complaint which caused him to exceed the repose period.
Anderson’s claim was time-barred for more than a decade

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before any such communications ensued. Therefore, he cannot
demonstrate estoppel.
Moreover, the correspondence identified by Anderson does
not reflect any intent to forfeit the statute of repose defense,
and in fact the Catholic Bishop in the May 11, 2007 letter
expressly emphasizes that the claims were barred and that the
effort to consider possible relief for Anderson was a compassionate rather than a legal response. Anderson conflates the
two, effectively arguing that by considering settlement options
despite knowledge that the claims are time-barred, the Catholic
Bishop is waiving the right to subsequently assert such
defenses. Anderson provides no case support for this argument. Waiver is a conscious relinquishment of a known right.
The letter relied upon by Anderson establishes that no waiver
occurred here; rather than relinquish a known right, the
Catholic Bishop identified the statute of repose and made it
clear that it considered the claim to be time-barred as a matter
of law. That is an expression of an intent to advocate, not
abandon, a known right. The decision to offer to consider relief
as a compassionate rather than legal matter again reflects a
recognition that the relief is not required by law or grounded
in any assertion of a legal right.
Anderson’s argument would assign an adverse legal
consequence to an offer of compassionate relief. Apart from
lacking any support in the law or in the plain language, such
an interpretation would have the disastrous effect of handcuffing a defendant who desired to offer relief to a plaintiff
based on that defendant’s determination of what is the moral
or preferred resolution and that extends beyond what is legally
required. For instance, if the Catholic Bishop decided that as a

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moral imperative it would attempt to provide relief to persons
who, after investigation, it believed had suffered sexual abuse
at its hands, the Catholic Bishop could not offer the relief it
believed was appropriate without waiving its right to assert
that the claims were time-barred as a legal matter and subjecting itself to the vagaries of damages determinations by a court
or jury. It would deter settlement of claims and hinder the
ability of parties to arrive at equitable resolution of claims.
Such an approach is contrary to public policy, and is without
any support in law. Accordingly, there is no mixed question of
law and fact as to the waiver and promissory estoppel issues.
Anderson also asserts that the Catholic Bishop is precluded
from asserting the limitations defense by the principle of
judicial estoppel, which provides that “a party who prevails in
the first case by asserting some proposition may not seek to
prevail in a later case by asserting its opposite.” Kale v.
Obuchowski, 985 F.2d 360, 361 (7th Cir. 1993). Anderson points
to the many cases throughout the United States in which the
Catholic Church has chosen to settle claims, including “stale
claims” which otherwise could have been barred by the
prevailing statute of limitations. Anderson does not allege that
the Catholic Bishop actually took a position in any of those
lawsuits that is the opposite of its position in this case. Instead,
he relies on the general proposition that the Church as a whole
chose not to rely on the limitations defense in those cases and
settled instead. There are numerous problems with this
contention, not the least of which is that the failure to assert a
potential limitations defense is not an assertion of an opposite
position—it is the absence of any position. A defendant is not
required to assert any and all potentially meritorious defenses,

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and the failure to assert one is not akin to a statement that the
defense would not succeed. More fundamentally, “[j]udicial
estoppel applies to statements of fact and not to legal opinions
or conclusions,” and Anderson has identified no conflicting
statements of fact by the Catholic Bishop. Huang v. Brenson, 7
N.E.3d 729, 739 (Ill. App. 1 Dist. 2014) and cases cited therein;
Commonwealth Edison Co. v. Illinois Commerce Comm'n, 997
N.E.2d 762, 780 (Ill. App. 2 Dist. 2013). Anderson has failed to
raise any non-frivolous claim of judicial estoppel. The district
court properly granted the motion to dismiss.
Anderson also asserts myriad challenges to the district
court’s denial of his post-judgment motions under Rules 59(e)
and (d) and 60(b), which are meritless and require little
discussion. We review the district court’s denial of such
motions under Rule 59(e) or 60(b) for abuse of discretion.
Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th Cir.
2013). First, he asserts that the district court erred in rejecting
his Rule 59 motion. Rule 59(e) allows a court to alter or amend
a judgment only if the petitioner can establish a manifest error
of law or can present newly discovered evidence. Fed.R.Civ.P.
59(e). Anderson merely restates the arguments made in
response to the motion to dismiss including the claims of
equitable tolling and waiver which we have already rejected,
and therefore this argument is unavailing. See generally Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (“a
‘manifest error’ is not demonstrated by the disappointment of
the losing party. It is the ‘wholesale disregard, misapplication,
or failure to recognize controlling precedent.’”) Anderson also
pursued a motion under Fed. R. Civ. P. 60(b)(2) in the district
court in which he sought to submit “newly discovered evi-

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dence.” That newly discovered evidence consisted of evidence
of time-barred cases and claims settled by the Catholic Church
gleaned from sources such as websites and a publicly-available
deposition of Cardinal Francis George. Rule 60(b)(2) allows for
relief from judgment based on newly discovered evidence that,
with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b). Anderson has
presented no evidence whatsoever that the evidence submitted
could not have been discovered earlier with reasonable
diligence, and even if that hurdle was met the evidence is
merely cumulative of evidence already in the complaint.
Accordingly, the district court did not abuse its discretion in
denying relief.
Anderson’s remaining arguments are similarly flawed. He
protests the district court’s refusal of his request to amend his
complaint to include a claim that the limitations period was
tolled as a result of the defendant’s fraudulent concealment,
but that request was not proffered until after the court’s entry
of judgment dismissing the claim with prejudice. Accordingly,
Anderson’s right to amend once as a matter of course was
extinguished, and he had to demonstrate an entitlement to
such relief in a motion under Fed. R. Civ. P. 59(e). Fannon v.
Guidant Corp., 583 F.3d 995, 1002 (7th Cir. 2009). Rule 59(e),
however, “‘is not properly utilized to advance arguments or
theories that could and should have been made before the
district court rendered a judgment.’” Id. at 1003, quoting
Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 512 (7th Cir. 2007).
Anderson pursued numerous arguments relating to the tolling
of the limitations period in his complaint, and has presented no
reason why the fraudulent concealment claim could not have

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been pursued prior to dismissal as well. Accordingly, the
district court did not abuse its discretion in denying that
motion.
Finally, Anderson also faults the court for addressing the
merits prior to allowing class discovery pursuant to Federal
Rule of Civil Procedure 23 as to class certification, but Anderson did not move for class discovery prior to the dismissal of
the complaint, and his claim is again premised on the notion
that he had asserted a plausible claim of timeliness. Therefore,
this claim is meritless.
Anderson has raised no meritorious claims on appeal, and
accordingly the decision of the district court is AFFIRMED.