Chiquita Newell v. Elinor Velacruz, et al
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6862691-1] [6862691] [17-1617]
Case: 17-1617
Document: 13
Filed: 08/18/2017
Pages: 3
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2017*
Decided August 18, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17‐1617
CHIQUITA NEWELL,
Plaintiff‐Appellant,
v.
ELINOR VELACRUZ, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 17 C 22
Jorge L. Alonso,
Judge.
O R D E R
Chiquita Newell sued persons affiliated with her former employer, Alden Village
(a medical center serving special‐needs patients), under 42 U.S.C. § 1981 for retaliating
against her for filing a worker’s compensation claim. The district court dismissed her
* We have agreed to decide the case without oral argument because the brief and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C). The defendants were not served
with process in the district court and are not participating in this appeal.
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complaint with prejudice as barred by the statute of limitations. She moved for relief
from the judgment, contending that she “inadvertently omitted” allegations from her
complaint that would cure this defect. See FED. R. CIV. P. 60(b)(1). She included these
allegations in a proposed amended complaint. The court denied her motion, explaining
that she knew about these allegations when she first sued. Because the district court
properly decided that Newell may not use a Rule 60(b) motion to raise allegations that
she knew at the beginning of the case, and because the proposed amendment does not
cure the timeliness problem, we affirm.
Newell alleges that, after she filed her worker’s compensation claim, her
supervisor told her in January 2012 that she should not come to work anymore. Five
years later, in January 2017, Newell filed this action to sue Alden Village’s personnel
director and her former supervisors for retaliating against her for filing that claim. The
court allowed her to proceed without prepaying the filing fee, but dismissed her
complaint with prejudice because she sued one year after the four‐year statute of
limitations for § 1981 claims had passed. See 28 U.S.C. § 1915(e)(2)(B)(ii). One month
later, in February, Newell requested relief from the judgment under Rule 60(b). She
argued that she had “inadvertently omitted” facts from her complaint that, she said,
would show that her claim was not barred by the statute of limitations. She appended
an amended complaint alleging a different retaliation claim under § 1981: the
defendants fired her in January 2013 (one year after the time mentioned in the original
complaint) in retaliation for filing a charge with the Equal Employment Opportunity
Commission. The district court denied her motion. As we mentioned above, it reasoned
that Rule 60(b) does not provide relief based on facts that a plaintiff knew when filing a
suit but did not present until after a court’s final ruling.
On appeal Newell contests this reasoning. She asserts that the facts alleged in her
proposed complaint are not new ones, but just elaborations on those in her original
complaint. She is wrong. The additional allegations do not merely elaborate on those in
her original complaint. They assert a separate violation of § 1981—namely, that more
than a year after she filed her workers’ compensation claim, Alden Village retaliated
against her for filing a charge with the EEOC. But in any case, Newell knew about these
allegations well before she sued and therefore could have raised them in her original
complaint. As the district court observed, a litigant may not rely on Rule 60(b) to
present assertions “that with due diligence could have been introduced before
judgment on the motion from which the party is seeking relief.” Rutledge v. United
States, 230 F.3d 1041, 1052 (7th Cir. 2000).
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We are mindful that, if a plaintiff seeks leave to amend a complaint before final
judgment, leave should be freely given “when justice so requires.” FED. R. CIV.
P. 15(a)(2); see also Luevano v. Wal‐Mart Stores, Inc., 722 F.3d 1014, 1025 (7th Cir. 2013).
But Newell sought leave after final judgment. Moreover courts may deny leave to
amend to plaintiffs, including those like Newell proceeding in forma pauperis, when
the amendment is futile. See Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw.
Ind., 786 F.3d 510, 520 (7th Cir. 2015). Futility is evident here. Newell’s proposed
amended complaint did not fix the timeliness problem of her original complaint. She
submitted her proposed amendment in February 2017, one month after the expiration of
the four‐year period to sue on her alleged retaliatory discharge of January 2013.
See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382–83 (2004) (four‐year limitation
for § 1981 claims); Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 269 (7th Cir. 2004)
(applying the four‐year limitation to retaliation claims under § 1981).
Finally the relation‐back doctrine, under which an amended pleading “relates
back to the date of the original pleading,” FED. R. CIV. P. 15(c)(1), does not save Newell’s
proposed amended complaint. First Newell does not dispute that her original complaint
was not itself timely filed, a requirement for relation‐back. See Henderson v. Bolanda, 253
F.3d 928, 931 (7th Cir. 2001). Second as we have explained, the § 1981 claims in her two
complaints arise out of different alleged conduct, another disqualifier for relation‐back.
See FED. R. CIV. P. 15(c)(1)(B).
AFFIRMED.
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