Lally v. City of Chicago et al

Filing 51

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 8/15/2011:Defendant Gonzalezs motion to dismiss 45 the claims asserted against her in Plaintiffs second amended complaint is granted. However, Defendants request for costs is respectfully denied. Notice of motion date of 8/11/2011 is stricken and no appearances are necessary on that date. The next status hearing in this case remains set for 9/8/2011 at 9:00 a.m. Notices Mailed by Judge's Staff (tbk, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert M. Dow, Jr

CASE NUMBER

10 C 5011

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

8/15/2011

Lally vs. City of Chicago

DOCKET ENTRY TEXT

Defendant Gonzalez’s motion to dismiss [45] the claims asserted against her in Plaintiff’s second amended
complaint is granted. However, Defendant’s request for costs is respectfully denied. Notice of motion date
of 8/11/2011 is stricken and no appearances are necessary on that date. The next status hearing in this case
remains set for 9/8/2011 at 9:00 a.m.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Before the Court is Defendant Gonzalez’s motion to dismiss [45] the claims asserted against her in Plaintiff’s
second amended complaint. By way of background, this Court previously issued a memorandum opinion and
order [39] in which it, inter alia, dismissed Plaintiff’s claims against Defendant Gonzalez as time-barred. The
next day, Plaintiff filed (with leave of court) a second amended complaint [40]. In that complaint, Plaintiff
included Defendant Gonzalez as a named Defendant despite the prior dismissal of the claims against her. In
Plaintiff’s response [49] to Defendant’s renewed motion to dismiss, Plaintiff explains that she did not “intend
to try to re-insert Officer Gonzalez into the case from which [s]he had just been dismissed,” but apparently felt
compelled to replead the allegations against Officer Gonzalez because “[u]nder Illinois law the failure to include
a dismissed party or claim in a subsequently amended complaint would serve as an abandonment of that claim
or party and would waive any future appeal of the dismissal.” Pl. Resp. [49] at 1-2 & n.1 (citing Foxcroft
Townhome Owners Association v. Hoffman Rosner Corp., 96 Ill.2d 150, 155 (1983)).
The problem with Plaintiff’s position is that it misapprehends the controlling, federal law that applies in this case.
Judge Grady addressed this precise scenario in Gavin v. AT&T Corp., 2003 WL 22849128, at *4 (N.D. Ill. Dec.
1, 2003), a case in which the plaintiff – like Plaintiff here – noted
that she re-alleged previously dismissed claims in her amended complaint “only to ‘preserve’ them for appellate
review,” citing “the so-called ‘Foxcroft rule,’ under which, [the plaintiff] maintains, failure to re-allege dismissed
claims in an amended complaint effectively waives any objection to the dismissal of those claims on appellate
review.” As Judge Grady explained, that “position is misguided,” because “[w]hatever the requirements of the
Foxcroft rule may be, it is a creature of state law, and thus has no place under the federal pleading standards
which govern this case.” Instead, under controlling Seventh Circuit law, “a litigant need not replead dismissed
claims to preserve them for appeal.” Id. As the Seventh Circuit put it, under federal law, “[i]t is not waiver–it
is prudence and economy–for parties not to reassert a position that the trial judge has rejected. Had the plaintiffs
repleaded their [dismissed claim], the judge would have dismissed the charge, not only with prejudice, but with
10C5011 Lally vs. City of Chicago

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STATEMENT
annoyance.” Bastian v. Petren Resources Corp., 892 F.2d 680, 683 (7th Cir. 1990); see also Serritella v.
Markum, 119 F.3d 506, 512 n.6 (7th Cir. 1997) (“[Plaintiff’s counsel’s] concern that he was required to replead
the dismissed claim lest he be found to have waived the issue on appeal has no foundation in the law of this
Circuit (or any other of which we are aware)”); Smith v. Nat’l Health Care Services of Peoria, 934 F.2d 95, 98
(7th Cir. 1991) (“This court in Bastian stated that dismissed claims need not be included in an amended
complaint, because the final judgment brings up all previous rulings in the case”). Although Plaintiff clearly
misunderstood the applicable law, Defendant’s motion to dismiss in all likelihood would have been unnecessary
had Defendant instead filed a motion for extension of time to answer or otherwise plead to allow for a
conversation with Plaintiff’s counsel when he returned from his vacation.

10C5011 Lally vs. City of Chicago

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