In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3411

HAROLD JENKINS,

Lieutenant,

Plaintiff-Appellant,

v.

VILLAGE OF MAYWOOD,

JAMES COLLIER, RALPH

CONNOR, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 1520—Matthew F. Kennelly, Judge.

____________

ARGUED MARCH 28, 2007—DECIDED NOVEMBER 5, 2007

____________

Before POSNER, ROVNER and SYKES, Circuit Judges.

ROVNER, Circuit Judge. In December 2003, Harold

Jenkins sued the Village of Maywood and several of

its employees, asserting claims under Title VII and 42

U.S.C. § 1983. On March 9, 2004, the parties filed a joint

stipulation (hereafter “Stipulation”) for voluntary dismissal without prejudice, pursuant to Fed. R. Civ. P.

41(a)(1)(ii). The district court prepared an order of dismissal on that same day, and the clerk entered the order

on the docket on March 15, 2004. On March 15, 2005,

Jenkins filed a nearly identical suit against the same
2 No. 06-3411

1 On July 18, 2005, the district court dismissed the Title VII

claim as untimely and Jenkins does not appeal that dismissal.

Only the section 1983 claims are before us.

defendants. The defendants moved for summary judgment on the section 1983 claims, arguing that they were

untimely.1

 The court granted the motion, and Jenkins

appeals. We affirm.

I.

The district court noted that section 1983 actions are

governed by the appropriate state statute of limitations

and its corresponding tolling rules. The applicable statute

of limitations in Illinois is two years. Illinois tolling rules

allow a plaintiff who voluntarily dismisses a case to

commence a new action within one year or within the

remaining period of limitation, whichever is greater. 735

ILCS 5/13-217. See also 735 ILCS 5/2-1009 (providing

that the “plaintiff may, at any time before trial or hearing

begins, upon notice to each party who has appeared or

each such party’s attorney, and upon payment of costs,

dismiss his or her action or any part thereof as to any

defendant, without prejudice, by order filed in the cause.”).

The question was whether the one year period referenced

in section 5/13-217 commenced on March 9, 2004, when the

parties filed the joint Stipulation to dismiss, or on March

15, 2004, when the clerk entered the court’s order of

dismissal on the docket. The district court noted that,

under Illinois law, “an order issued pursuant to section

5/2-1009 is not effective, for purposes of section 5/13-217,

until the clerk has entered the order into the docket.”

Jenkins v. Village of Maywood, et al., No. 05 C 1520 (N.D.

Ill. August 16, 2006). However, under the Federal Rules

of Civil Procedure, no order is needed to effect a volun-
No. 06-3411 3

tary dismissal. Rather, Rule 41(a) provides, in relevant

part, that “an action may be dismissed by the plaintiff

without order of court . . . by filing a stipulation of dismissal signed by all parties who have appeared in the

action.” “Filing,” the district court held, occurred when the

Stipulation was delivered into the actual custody of the

proper officer. The court found that there was no need for

a clerk’s entry on the docket in order for the filing to

take effect. Under Rule 41(a), the dismissal was therefore effective immediately upon the filing of the joint

Stipulation of dismissal, on March 9, 2004. The district

court accordingly found that Jenkins had one year from

March 9, 2004 in which to refile his suit. Because he

failed to meet that deadline, the court found the second

action untimely and granted the defendants’ motion for

summary judgment. On appeal, Jenkins argues that the

second complaint was timely because it was filed one year

to the day after the voluntary dismissal was entered of

record.

II.

“Because no federal statute of limitations governs,

federal courts routinely measure the timeliness of federal civil rights suits by state law.” Hardin v. Straub, 490

U.S. 536, 538 (1989). See also Wilson v. Garcia, 471 U.S.

261, 266-76 (1985) (because section 1983 does not contain

an express statute of limitations, federal courts use the

forum state’s statute of limitations for personal injury

claims); Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir.

2001) (same). In Illinois, the statute of limitations for

personal injury actions is two years, and so section 1983

actions litigated in federal courts in Illinois are subject

to that two year period of limitations. Johnson, 272 F.3d

at 521; 735 ILCS 5/13-202. “In virtually all statutes of

limitations the chronological length of the limitation period
4 No. 06-3411

is interrelated with provisions regarding tolling, revival,

and questions of application.” Hardin, 490 U.S. at 539

(quoting Johnson v. Railway Express Agency, Inc., 421 U.S.

454, 464 (1975)). Federal courts using state limitations periods thus apply the state’s “coordinate tolling

rules” as well. Hardin, 490 U.S. at 539.

The Illinois tolling rule at issue here provides that if

an action is voluntarily dismissed by the plaintiff, “then,

whether or not the time limitation for bringing such action

expires during the pendency of such action, the

plaintiff . . . may commence a new action within one year

or within the remaining period of limitation, whichever

is greater, . . . after the action is voluntarily dismissed

by the plaintiff[.]” 735 ILCS 5/13-217. On March 9, 2004,

the parties filed a Stipulation, signed by the lawyers

for each side, that specified in its entirety:

It is hereby stipulated by and between Plaintiff,

HAROLD JENKINS, and Defendants, VILLAGE OF

MAYWOOD, MAYOR RALPH CONNOR, VILLAGE

MANAGER DENNIS SPARKS, CHIEF OF POLICE

JAMES COLLIER, COMMANDER DONALD

MOBLEY, and LIEUTENANT JOSE MAZARIEGOS,

that this action shall be dismissed without prejudice,

pursuant to Federal Rule 41(a)(1), with each party

to bear their own costs and fees.

R.51, Ex. 4. As we noted, Rule 41(a)(1) specifies that a

plaintiff may dismiss an action without an order of court

by filing a stipulation of dismissal signed by all parties

who have appeared in the action. The filing date stamped

on the Stipulation is March 9, 2004. The Stipulation is

also stamped with the notation “DOCKETED MAR 15

2004.” On March 9, 2004, the district court issued an

“Order of Dismissal,” which was docketed on March 15,

2004. That Order purported to dismiss the case without

prejudice pursuant to Rule 41. As the district court it-
No. 06-3411 5

self noted, the Order was superfluous because under

Rule 41(a), the dismissal was effective immediately upon

the filing of the Stipulation, which occurred on March 9,

2004. Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d

1073, 1078 (7th Cir. 1987) (a Rule 41(a) “dismissal terminates the case all by itself.”); McCall-Bey v. Franzen, 777

F.2d 1178, 1185 (7th Cir. 1985) (a Rule 41(a) voluntary

dismissal takes effect the date the stipulation is filed in

court). The plaintiff refiled the action on March 15, 2005,

missing the one year deadline by six days.

Jenkins argues that under Illinois law, an action is not

dismissed until the court enters an order and that order

is “entered of record.” In this case, the district court’s

order was entered on the docket on March 15, 2004. If

March 15, 2004 is the date the dismissal became effective,

Jenkins argues, then the refiled action was timely. If the

case had been dismissed under 735 ILCS 5/2-1009, Jenkins

might be correct. See Swisher v. Duffy, 512 N.E.2d 1207,

1210 (Ill. 1987) (where no written judgment order is

required, a judgment is effective for the purposes of 735

ILCS 5/13-217 when it is entered of record). But the

case was in federal court, not state court, and the Federal

Rules of Civil Procedure apply in federal court. Fed. R. Civ.

P. 1 (“These rules govern the procedure in the United

States district courts in all suits of a civil nature[.]”).

Although we borrow the statute of limitations and coordinate tolling rules from Illinois, federal procedural rules

govern the determination of when the action was voluntarily dismissed. Contrary to Jenkins’ claims, a rule

governing dismissal is not a coordinate tolling rule. The

one year tolling period set by the 735 ILCS 5/13-217 began

on March 9, 2004, when, according to Federal Rule of

Civil Procedure 41(a), the action was dismissed. The case

refiled on March 15, 2005 was therefore untimely and

the district court was correct to grant summary judgment in favor of the defendants.

AFFIRMED.
6 No. 06-3411

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-5-07