Lally v. City of Chicago et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 7/7/2011. Notices Mailed by Judge's Staff (tbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THOMAS P. LALLY,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.
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Case No.: 10-CV-5011
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas P. Lally (“Plaintiff”) filed this 42 U.S.C. § 1983 action against various
employees of the Chicago Police Department (collectively, “Defendants”). Plaintiff alleges that
Defendants falsely arrested and imprisoned him, attempted to cover up their unlawful actions,
and intentionally caused him emotional distress, in violation of his First, Fourth and Fourteenth
Amendment rights.
Plaintiff’s first amended complaint [12] adds Officer Gonzalez as a
defendant in place of the originally named “Jane Doe.” Before the Court is Gonzalez’s motion
to dismiss [21] Plaintiff’s first amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) on the ground that the amendment is time-barred. Also before the Court is Plaintiff’s
motion [24] for leave to file a second amended complaint that names Sergeant Kaupert as a
defendant in place of the originally named “Sergeant Crawford.” For the reasons stated below,
the Court grants Defendant Gonzalez’s motion to dismiss [21] and grants Plaintiff’s motion for
leave to file a second amended complaint [24] naming Sergeant Kaupert as a defendant.
I.
Background1
On August 15, 2008, Plaintiff, a battalion chief of the Chicago Fire Department, was
supervising a response to a fire. Plaintiff requested that Defendant police officers Ramos and
Gonzalez, who were on the scene of the fire, provide a report number to document the property
damage that the fire caused. Ramos and Gonzalez refused to provide the report number, so
Plaintiff was forced to radio for help from a police supervisor. The police supervisor, Sergeant
Kaupert, soon arrived, but instead of directing Ramos and Gonzalez to prepare the report,
Kaupert, Ramos, and Gonzalez publically belittled Plaintiff. When Plaintiff threatened to report
this behavior, Kaupert ordered Plaintiff to be arrested. Defendant Officer Norberg and another
male officer handcuffed Plaintiff and transported him from the scene of the fire to Police District
17 in a squad car. In the car and at the station, Defendant Officer Norberg continually insulted
Plaintiff.
After being held in custody for approximately one hour, Defendant Gale, the acting
watch commander, informed Plaintiff that he would not be charged as he had committed no
offense. Gale urged Plaintiff to lie about the incident, suggesting that Plaintiff file a report
stating that he had voluntarily gone to the station as part of the fire investigation. While driving
Plaintiff back to the fire scene, Gale urged Plaintiff to participate in a cover-up and offered to
purchase alcohol for him in exchange. Plaintiff refused these offers. The following morning,
Plaintiff received a police report from Gale, prepared by defendants Ramos and Gonzalez, which
falsely indicated that the property damage caused by the fire was minimal and that Plaintiff’s
presence in the District 17 station was voluntary.
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For purposes of Defendant’s motion to dismiss, the Court assumes as true all well-pleaded allegations
set forth in Plaintiff’s second amended complaint. See, e.g., Killingsworth v. HSBC Bank Nevada, N.A.,
507 F.3d 614, 618 (7th Cir. 2007).
2
Nearly two years later, on August 10, 2010, Plaintiff filed a pro se complaint under 42
U.S.C. § 1983, alleging violations of his constitutional rights by named individual defendants
Ramos, Norberg, Gale, John Doe, Jane Doe, and a “Sergeant Crawford.” Plaintiff alleged that
“Jane Doe” was the officer working with Ramos from whom Plaintiff originally requested the
property damage report. Plaintiff alleged that “Sergeant Crawford” was the police supervisor
whom Plaintiff summoned to the scene after Ramos and “Jane Doe” refused to prepare the
property damage report.
Plaintiff subsequently attempted to serve defendants through the
Chicago Police Department. The Department was unable to serve Jane Doe and Sergeant
Crawford, so on August 28 – more than one week after the two-year anniversary of the incident –
Plaintiff provided the “star” (or badge) numbers of both officers and indicated that “‘C.
Gonzalez’ on the [original police] report [for the incident] is likely the ‘Jane Doe’ identified in
the Complaint.” [32, at 10.]
On October 27, 2010, Plaintiff filed a first amended complaint [12], changing defendant
“Jane Doe” to “Officer Gonzalez.” Plaintiff claimed that at the time the original complaint was
filed, he was unsure of Officer Gonzalez’s name, and thus referred to her as “Jane Doe.”
Defendants have moved to dismiss Plaintiff’s claim against Officer Gonzalez, arguing that the
amendment is barred by the two-year statute of limitations applicable to Plaintiff’s § 1983
claims. [21.]
On January 12, 2011, Plaintiff filed a motion for leave to file a second amended
complaint [24], pursuant to Rule 15(c), that changes the name of defendant “Sergeant Crawford”
to “Sergeant Kaupert.” Plaintiff claims that Kaupert was not wearing a name tag at the time of
the incident and that when Plaintiff twice asked Kaupert his name in the midst of the altercation,
Plaintiff misheard the response to be “Crawford” rather than “Kaupert.” Plaintiff discovered the
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correct spelling through Defendants’ Rule 26 disclosures. Defendants argue that Plaintiff should
be denied leave to file the second amended complaint because the amendment is beyond the twoyear limitations period and thus time-barred.
II.
Legal Standards on a Motion to Dismiss and Motion for Leave to File an Amended
Complaint
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d
1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first
must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that
the pleader is entitled to relief” (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given “fair
notice of what the * * * claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief
above the “speculative level,” assuming that all of the allegations in the complaint are true.
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly,
550 U.S. at 555). “Detailed factual allegations” are not required, but the plaintiff must allege
facts that, when “accepted as true, * * * ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at
1949. “[O]nce a claim has been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint.” Twombly, 550 U.S. at 563. The Court
accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences
that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
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A plaintiff’s failure to adhere to a statute of limitations is an affirmative defense and
therefore generally is not amenable to dismissal under Rule 12(b)(6) at the complaint stage.
United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). However, dismissal under Rule
12(b)(6) is appropriate when a plaintiff pleads himself out of court by establishing that a
defendant is entitled to a limitation’s defense. Cancer Found., Inc. v. Cerberus Capital Mgmt.,
LP, 559 F.3d 671, 675 (7th Cir. 2009) (dismissal appropriate where it is “clear from the face of
the amended complaint that it [was] hopelessly time-barred”); U.S. Gypsum Co. v. Ind. Gas Co.,
Inc., 350 F.2d 623, 626 (7th Cir. 2003) (“A litigant may plead itself out of court by alleging (and
thus admitting) the ingredients of a defense”).
Federal Rule of Civil Procedure 15(a) instructs a district court to freely grant parties leave
to amend when justice so requires. Fed. R. Civ. P. 15(a); see also Sound of Music Co v.
Minnesota Mining & Mfg. Co., 477 F.3d 910, 922 (7th Cir. 2007) (quoting Park v. City of
Chicago, 297 F.3d 606, 612 (7th Cir. 2002)). A district court may deny a motion for leave to
amend, however, if the amendment would be futile. Sound of Music Co., 477 F.3d at 922. A
new claim is considered futile if it would not withstand a Rule 12(b)(6) motion to dismiss. See
Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 974-975 (7th Cir. 2001). For
instance, if a proposed amended complaint is filed after the period of limitations has run, and
does not relate back to the date of the original complaint pursuant to the requirements of Rule
15(c), the amended complaint would be time-barred and could not, as a matter of law, withstand
a motion to dismiss. Id. A court may then deny the motion for leave to amend as futile. Id.
Rule 15(c)(1) allows amendment to a pleading that would otherwise be time-barred
when:
(A) the law that provides the applicable statute of limitations allows relation
back;
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(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out – or attempted to be set out – in the
original pleading; or
(C) The amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B)is satisfied and if, within the
period provided by Rule 4(m) for serving the summons and complaint, the
party to be brought in by amendment:
(i) Received such notice of the action that it will not be prejudiced
in defending on the merits; and
(ii) Knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper
party’s identity relates back to the date of the original pleading.
FED. R. CIV. P. 15(c)(1). The Seventh Circuit has long interpreted Rule 15(c)(1) “to permit an
amendment to relate back to the original complaint only where ‘there has been an error made
concerning the identity of the proper party and where that party is chargeable with knowledge of
the mistake.’” King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 914 (7th Cir. 2000)
(citing Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998)); Worthington v. Wilson,
8 F.3d 1253, 1256 (7th Cir. 1993); Wood v. Worachek, 618 F.2d 1225, 1230 (7th Cir. 1980)).
The “mistake” requirement of the relation-back rule is not satisfied by a mere lack of knowledge
of the proper defendant; the plaintiff must have actually erred in naming the proper defendant.
Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006); see also Baskin, 138 F.3d at 704.
Establishing the existence of a mistake is a threshold requirement in a 15(c)(1) inquiry, and is
independent of the determination of whether the party to be brought in had knowledge of the
action. King, 201 F.3d at 914 (citing Baskin, 138 F.3d at 704; Worthington, 8 F.3d at 1257;
Wood, 618 F.2d at 1230). “[I]n the absence of a mistake in the identification of the proper party,
it is irrelevant for purposes of [Rule 15(c)(1)] whether or not the purported substitute party knew
or should have known that the action would have been brought against him.” Baskin, 138 F.3d at
704 (citing Wood, 618 F.2d at 1230).
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III.
Analysis
Both Defendant’s motion to dismiss the § 1983 claims against Officer Gonzalez [21] and
Plaintiff’s motion for leave to file a second amended complaint asserting § 1983 claims against
Officer Kaupert [24] raise statute of limitations questions. The statute of limitations for claims
filed under 42 U.S.C. § 1983 is the same as the forum state’s statute of limitations period for
personal injury claims. See Wilson v. Garcia, 471 U.S. 261, 276 (1938). Illinois statute sets
forth a limitations period of two years for personal injury claims. 735 ILCS 5/13-202. Thus, the
statute of limitations for personal injury actions filed under § 1983 in Illinois is also two years.
See Ashafa v. City of Chicago, 146 F.3d 459, 462 (7th Cir. 1998). Amended suits, which add
new parties after the two-year period has expired, are untimely and will be dismissed unless they
relate back to the original complaint, as required by Rule 15(c), or the running of the statute of
limitations is tolled. See, e.g., Donald v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 561-62 (7th
Cir. 1996).
A.
Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint
Defendant Gonzalez seeks dismissal of Plaintiff’s claims against her because she was not
named as a defendant until October 27, 2010 – more than two months after the two-year statute
of limitations on Plaintiff’s § 1983 claim had expired. Plaintiff concedes that his first amended
complaint was filed after the statute of limitations expired. However, Plaintiff argues that the
first amended complaint meets the relation-back requirements of Rule 15(c).
Specifically,
Plaintiff alleges that he actually erred in omitting Officer Gonzalez in the original complaint.
Plaintiff also contends that but for the mistake, Gonzalez knew or should have known that she
would have been brought in as a party to Plaintiff’s suit, as Gonzalez was served within the 120day period set forth in Rule 4(m) and referenced in Rule 15(c)(1)(C). Accordingly, Plaintiff
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contends that the claims asserted against Gonzalez in the first amended complaint relate back to
the original complaint and are not time-barred.
Defendant argues that Plaintiff cannot satisfy the Rule 15(c) relation back requirements
so as to overcome the statute of limitations because Plaintiff’s failure to identify Officer
Gonzalez by name in the original complaint does not meet the requirements of a “mistake” under
Rule 15(c)(1). Defendant relies on Worthington v. Wilson in support of her argument. 8 F.3d at
1256. The plaintiff in Worthington initially brought a § 1983 claim against “unknown police
officers.” Id. at 1254. The plaintiff later attempted to amend his complaint to change the
unknown officers to Officers Wilson and Wall after the statute of limitations had run, pursuant to
Rule 15(c). Id. at 1255. The court held that “[b]ecause Worthington’s failure to name Wilson
and Wall was due to a lack of knowledge as to their identity, and not a mistake in their names,
Worthington was prevented from availing himself of the relation back doctrine of Rule 15(c).”
Id. at 1257; see also Hall v. Norfolk Southern Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006) (holding
that “a plaintiff [who] names a fictitious defendant like ‘John Doe’ because he does not know
who harmed him * * * has not made a ‘mistake’ concerning ‘identity’ within the meaning of rule
15(c)(3)”); Jackson v. Kotter, 541 F.3d 688, 696 (7th Cir. 2008) (holding that “[n]ot knowing a
defendant’s name is not a mistake under Rule 15”). Defendant argues that, as in Worthington,
Plaintiff’s naming of “Jane Doe” in his original complaint is due simply to Plaintiff’s lack of
awareness of Gonzalez’s name. Defendant urges the Court to conclude, as did the court in
Worthington, that the lack of knowledge as to Gonzalez’s identity does not constitute a
“mistake” under Rule 15(c).
Plaintiff acknowledges that he received a police report from the incident that clearly
stated Officer Gonzalez’s name and “star” or badge number, along with the name and star
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number of Officer Ramos. Plaintiff protests that the report did not specify what role Gonzalez
played in the incident and states that he did not associate the name in the report with the officer
at the scene because the officer did not “appear to plaintiff to be Hispanic.” [32, at 10.] Plaintiff
nonetheless admits that he was in possession of Gonzalez’s name and star number within the
limitations period, and suspected that Gonzalez was “Jane Doe” at least as early as August 28
(almost two months before filing the first amended complaint).
Plaintiff’s naming of “Jane Doe” instead of “Officer Gonzalez” does not constitute a
“mistake” under Rule 15(c). Plaintiff had sufficient information at the time that his original
complaint was filed to have named Gonzalez in place of “Jane Doe;” that he did not do is
attributable not to an error in identifying Gonzalez but to a lack of knowledge. Moreover, the
record indicates that, later in the same month that he filed his original complaint, Plaintiff
indicated in correspondence with the Chicago Police Department that he suspected that Gonzalez
was Jane Doe. Yet, Plaintiff did not file an amended complaint naming Gonzalez as a defendant
until nearly ten weeks after the limitations period expired. The Seventh Circuit has made
abundantly clear that this type of error in naming a defendant does not once constitute a
“mistake” under Rule 15(c). See Worthington, 8 F.3d at 1257; Hall, 469 F.3d at 595; Jackson,
541 F.3d at 696. Plaintiff’s claims against Officer Gonzalez in his first amended complaint are
thus time-barred, and the Court grants Defendant’s motion to dismiss [21] those claims.2
2 Because
the threshold requirement of “mistake” has not been satisfied, it is irrelevant that Plaintiff may
have put Gonzalez on notice of the suit within the 120-day period under Rule 4(m). See Baskin, 138 F.3d
at 704 (holding that where a court concludes that no mistake has been made, “it is irrelevant for purposes
of [Rule 15(c)(1)] whether or not the purported substitute party knew or should have known that the
action would have been brought against him” (citing Wood, 618 F.2d at 1230)); King, 201 F.3d at 914
(holding that mistake is a threshold requirement independent of the determination of whether the
defendant to be brought in knew of the action); see also Hall, 469 F.3d at 568-69 (denying motion to
amend complaint under Rule 15(c) – although parties agreed that the defendant that plaintiff sought to
bring in had notice of plaintiff’s suit within the 4(m) period – after concluding that no mistake had been
made in plaintiff’s failure to name the defendant in the original suit).
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B.
Plaintiff’s Motion for Leave to File a Second Amended Complaint
Plaintiff’s proposed second amended complaint seeks to replace named defendant
“Sergeant Crawford” with “Sergeant Kaupert.” Plaintiff concedes that the proposed complaint
falls outside the two-year limitations period applicable to § 1983 claims. However, Plaintiff
argues that the Court should nonetheless grant his motion under the Illinois misnomer statute,
735 ILCS 5/2-401(b), or, alternatively, because the amendment meets the requirements of Rule
15(c).
In § 1983 actions, “provisions regulating both ‘tolling and application’ come from state
law.” Diaz v. Shallbetter, 984 F.2d 850, 854-55 (7th Cir. 1993) (citing Wilson v. Garcia, 471
U.S. 261, 269 (1985)). The Seventh Circuit has held that “application” refers to “subjects such
as whether the complaint must spell the defendant’s name correctly.” Id. at 855. The Court thus
looks to the Illinois misnomer statute to assess whether Plaintiff may amend his complaint to
assert § 1983 claims against Sergeant Kaupert instead of “Sergeant Crawford.”
The misnomer statute states that “misnomer of a party is not a ground of dismissal, but
the name of any party may be corrected at any time, before or after judgment, on motion, upon
any terms and proof that the court requires.” 745 ILCS 5/2-401(b). A misnomer occurs when
the plaintiff sues and serves summons upon the correct party, but calls the party by the wrong
name. Thielke v. Osman Construction Corp, 473 N.E.2d 574, 576 (Ill. App. Ct. 1st Dist. 1985).
Thus, the misnomer statute applies only “when the right defendant has been sued by the wrong
name, not when the wrong defendant has been sued.” Arendt v. Vetta Sports, Inc., 99 F.3d 231,
234 (7th Cir. 1996). If the wrong defendant has been sued, the plaintiff has made a “mistake,”
not a misnomer, and the misnomer statute does not apply. Id.
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In distinguishing cases of misnomer from those of mistaken identity, courts rely on
objective manifestations in the record of whom the plaintiff the intended to sue. Arendt, 99 F.3d
at 234 (citing Schryver v. Eriksen, 627 N.E.2d 291, 292 (Ill. App. Ct. 1st Dist. 1993); Clinton v.
Avello, 434 N.E.2d 355, 356 (Ill. App. Ct. 1st Dist. 1982)). Such objective manifestations may
include: the party named in the complaint, correspondence with the intended party, or whether
service was effected at the residence of the intended party. Arendt, 99 F.3d. at 235 (citing
Schaifer v. Folino, 650 N.E.2d 594, 598-99 (Ill. App. Ct. 1st Dist. 1995)). Courts have found
that evidence that the misnamed defendant does not exist to be particularly persuasive in
showing that the plaintiff misidentified the correct party (misnomer) rather than identified the
incorrect party (mistake). Id. (citing Clinton, 434 N.E.2d at356); Ashley v. Hill, 427 N.E.2d 1319
(Ill. App. Ct. 2d Dist. 1981). For example, the plaintiff in Diaz v. Shallbetter filed a § 1983 suit
against John Shullbetter on the last day of the limitations period. 984 F.2d at 851. No John
Shullbetter existed, and attempts to serve process on that individual were unsuccessful. Id. The
plaintiff later sought to amend his complaint to change the defendant to Dennis Shallbetter. Id.
at 852. Because of the error, Shallbetter did not receive timely notice of the complaint, and only
received the amended complaint 34 days after the original complaint was filed (and so, 34 days
after the limitations period had expired). Id. The Seventh Circuit held that Illinois’s misnomer
statute applied and that the plaintiff’s amendment of the complaint was permissible under the
statute. Id. at 853. “Treating the change – from John Shullbetter to Dennis Shallbetter – as
correction of a scrivener’s error would be problematic if Chicago’s police force had both a
Shullbetter and a Shallbetter, or if it had a John Shallbetter and a Dennis Shallbetter. It does not.
The identity of the person Diaz meant to sue would have been apparent to anyone with a
directory of the police force, and to Officer Shallbetter himself.” Id. (emphasis original).
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Here, the objective evidence manifests Plaintiff’s intent to sue Sergeant Kaupert rather
than Sergeant Crawford. First, because Sergeant Kaupert was not wearing a nameplate, Plaintiff
twice asked him his name and understood his response to be “Crawford.” Second, the “Sergeant
Crawford” whom Plaintiff named in his original complaint does not exist in the 17th District of
the Chicago Police Department. Third, when the Chicago Police Department informed Plaintiff
that it could not serve Sergeant Crawford because he did not exist, Plaintiff provided the
Department with Officer Kaupert’s star number. Together, the evidence indicates that Officer
Kaupert is the real party in interest the party whom Plaintiff intended to and believed he had
named in the original complaint. See Barbour v. Fred Berglund & Sons, Inc., 567 N.E.2d 509,
511 (Ill. App. Ct. 1st Dist. 1990) (holding that “[t]he test in deciding whether the misnomer
statute applies is whether the party sued is the real party in interest”); cf. Ashley v. Hill, 427
N.E.2d 1319, 1321 (Ill. App. Ct. 2d Dist. 1981) (holding that plaintiff’s suit against Paul
Jovanvic, the deceased father of Nestor Jovanovic, was a case of mistaken identity, not
misnomer, even though plaintiff had intended to sue Nestor). In view of this evidence, the Court
concludes that Plaintiff’s error in bringing suit against Sergeant Crawford instead of Sergeant
Kaupert is “a classic misnomer” more typical of a scrivener’s error – albeit one slightly less
obvious than that at issue in Diaz – than a mistake of identity. See Diaz, 984 F.2d at 854.
As Defendant points out, “[t]he rule that misnomer is not a ground for dismissal is a
narrow one, and applies only where an action is brought and summons is served upon a party
intended to be made a defendant.” Barbour, 567 N.E.2d at 511 (emphasis added). The court in
Barbour stated that where the misnomer statute applies, “service of summons after the expiration
of the statute of limitations does not bar the suit, provided that the plaintiff used reasonable
diligence in obtaining service upon the proper defendant.” Id. at 512 (emphasis added). Here,
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the Court concludes that Plaintiff met the reasonable diligence requirement in attempting to serve
Sergeant Kaupert.
After Plaintiff filed the original complaint, he attempted to serve the
defendant officers, including “Officer Crawford,” through the Chicago Police Department. This
service was unsuccessful. On August 28, 2010, well within the period of time provided by Rule
4(m) for serving summons, Plaintiff provided the Department with Officer Kaupert’s star
number, identifying it as the number of “Officer Crawford.” Because star numbers are unique
identifiers, this service should have been sufficient for the Chicago Police Department to identify
Officer Kaupert as the intended defendant.
The Court concludes that Plaintiff’s error was a misnomer that, under applicable Illinois
law, permits amendment at any time (see 745 ILCS 5/2-401(b)). Accordingly, the Court does
not reach Plaintiff’s alternative argument that the error constitutes a “mistake” under Rule 15(c).
III.
Conclusion
For the reasons stated above, the Court grants Defendant’s motion to dismiss [21]
Plaintiff’s first amended complaint as to the claims asserted against Officer Gonzalez.
In
addition, the Court grants Plaintiff’s motion for leave to file a second amended complaint [24]
substituting Sergeant Kaupert for Sergeant Crawford. Plaintiff shall have 14 days from the date
of this order to file the amended complaint.
Dated: July 7, 2011
______________________________
Robert M. Dow, Jr.
United States District Judge
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