Lobacz v. City Of Chicago

Filing 13

ENTER MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 4/16/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NICHOLAS LOBACZ,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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No.

13 C 1777

MEMORANDUM ORDER
City of Chicago (“City”), one of the defendants in this
multicount action brought by Nicholas Lobacz (“Lobacz”), has
noticed up for presentment on April 25 its motion to dismiss
Count III, a count based on its asserted violation of the
Americans with Disabilities Act (“ADA”).

This memorandum order

is issued sua sponte because some obvious questions posed by that
motion call for further review that could call for the correction
(or perhaps even the withdrawal) of the motion.
Lobacz’s lawsuit was originally brought in the Circuit Court
of Cook County and was then removed to this District Court based
on the existence of a federal claim--his ADA claim.

Now City’s

motion to dismiss that claim has been based on Lobacz’s asserted
failure to file suit within the 90-day period following his
receipt of EEOC’s right-to-sue leetter.

Because both Lobacz’s

Complaint and City’s motion may have made possible mistakes in
that respect, this memorandum order begins by reviewing the
bidding.

To begin with, the right-to-sue letter (an exhibit to City’s
motion) shows that it was dated November 2, 2012 and appears to
indicate that it was sent to Lobacz by mail.1

Although the date

stamp on Lobacz’s Circuit Court Complaint (Ex. 1 to City’s
motion) is so faint as to be almost illegible, enough is visible
to indicate a filing on the 4th of a month--most likely
February 4--and February 4, 2013 is the typewritten date next to
counsel’s signature on the last page of the Complaint.
To add to the uncertainty discussed in the preceding
paragraph, Complaint ¶17 reads:
On November 2, 2011 [sic] Mr. Lobacz received a rightto-sue letter Ex. D.
On that score, November 2 may be the right date if Lobacz
actually received the right-to-sue letter in person and by hand
on the date it was signed.

And if that were so, the Count III

claim would indeed be untimely.
What is clear from all this is that some further detective
work has to be done.

It is anticipated that either or both

parties will address themselves to that task before the scheduled

1

That is uncertain, but it would be consistent with the
handwritten notation on the letter, most likely written by
Lobacz, that reads “90 days--Feb. 4, 2013.” November 2, 2012 was
a Friday, so that the receipt of a notification mailed on that
date would not normally have taken place until Monday, November 5
or Tuesday, November 6. Then 90 days from those respective dates
would be Saturday, February 2 or Sunday, February 3, 2013--and in
either such event, Monday, February 4 would be the operative
date.
2

April 25 presentment date for the motion.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

April 16, 2013

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