Opinion
02 C 156.
February 5, 2003
OPINION
On December 12, 2001, plaintiffs filed their original complaint seeking damages under federal and state law for an incident involving two Chicago police officers occurring on January 1, 2000. The original complaint named the City of Chicago, Officer Jane Doe, and Officer John Doe as defendants. The complaint has been amended twice, the second amended complaint substituting Officer Julie Hudson for defendant Jane Doe and Officer Damon Ferrer for defendant John Doe. This amended complaint was filed on October 28, 2002. Now, Officers Hudson and Ferrer move to dismiss plaintiffs' federal and state law claims, arguing that the claims are time-barred because the statute of limitations for plaintiffs' federal and state claims expired on January 1, 2002. Plaintiffs do not contest that the statute of limitations has run on their claims and that they do not relate back, but rather, contend that the claims should not be denied due to equitable tolling, or in the alternative, equitable estoppel.
Plaintiffs allege that they attempted to locate the identity of the officers as early as December 6, 2000, by letter to the Chicago Police Department's Office of Professional Standards ("OPS"). It wasn't until August 12, 2002, after the City of Chicago produced documents requested by plaintiffs, that the officers' identities were discovered, and plaintiffs argue that the statue of limitations should be equitably tolled because despite due diligence, they were unable to obtain this vital information. Equitable tolling is appropriate when "a plaintiff, despite the exercise of due diligence and through no fault of his own, cannot determine information essential to bringing a complaint." Soignier v. American Bd. of Plastic Surgery, 92 F.3d 547, 553 (7th Cir. 1996). Plaintiffs' counsel has submitted an affidavit detailing his attempts to find Officer Ferrer's and Officer Hudson's identities. That affidavit reveals two significant facts: first, that between July 12, 2001, and July 10, 2002, counsel did nothing to further his search for the officers' identities, and second, that counsel did not contact the City of Chicago's counsel, Mara S. Georges, until July 10, 2002, which is over seven months after the statute of limitations had expired. It was this contact with Ms. Georges that led to the identity of Officers Hudson and Ferrer. Based on these two facts as alleged by plaintiffs' counsel, I find that due diligence was not exercised and thus reject plaintiffs' request that the statute of limitations be equitably tolled.
In the alternative, plaintiffs argue that equitable estoppel defeats the motion to dismiss. However, to invoke equitable estoppel, plaintiffs must show misconduct by Officers Ferrer and Hudson, and actual and reasonable reliance on that misconduct that prevented plaintiffs from learning their identities. Hamilton v. Komatsu Dresser Indus., Inc., 964 F.2d 600, 605 (7th Cir. 1992). Plaintiffs do not allege that the officers are guilty of such misconduct. Instead, plaintiffs argue that because the OPS failed to provide information, the City of Chicago is responsible for inducing plaintiffs to rely to their detriment. This does not constitute misconduct. In contrast, in Smith v. City of Chicago Heights, 951 F.2d 834 (7th Cir. 1991), on which plaintiffs rely, the defendant fraudulently concealed his participation, actively concealed his identity, and lied in his deposition. Hence, plaintiffs' equitable estoppel argument fails as well.
For the reasons stated above, Officers Ferrer's and Hudson's motion to dismiss is granted.