In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-1497

EULAH WILLIAMS,

Plaintiff-Appellant,

v.

JOHN LAMPE and VILLAGE OF

CAHOKIA POLICE DEPARTMENT,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 03 C 551—David R. Herndon, Judge.

____________

ARGUED DECEMBER 15, 2004—DECIDED MARCH 1, 2005

____________

Before BAUER, COFFEY and SYKES, Circuit Judges.

PER CURIAM. On September 22, 2000, Eulah Williams

filed a complaint in Illinois state court alleging statelaw tort claims against the Village of Cahokia, Illinois,

and Cahokia Police Officer John Lampe for injuries that

Lampe allegedly inflicted on September 25, 1998, almost

two years before. The defendants answered an amended

version of the complaint, failing to raise any affirmative

defenses. Nevertheless, almost two years later they

moved to dismiss on the ground that the claims were barred

by a one-year statute of limitations. With leave of court,

Williams filed another amended complaint based on the

same events, but claiming for the first time under 42 U.S.C.
2 No. 04-1497

§ 1983 that her constitutional rights were violated. The

defendants removed the case to federal court and promptly

moved to dismiss, arguing that all of the claims were timebarred. The district court dismissed and Williams appeals,

arguing only that the defendants waived their right to

assert the statute of limitations defense by not asserting it

“at the earliest possible moment.” We affirm.

In her original complaint Williams alleged that Lampe

injured her back and head by dragging her down stairs at

the Cahokia police station and set forth state-law tort

claims under theories of “intentional conduct” and “negligence.” After two amendments of no consequence here, the

defendants answered Williams’ second amended complaint in September 2001. Though the parties presumably proceeded with discovery, there is no record of any

further activity in the state court before July 2003 when the

defendants moved to dismiss the case, arguing for the first

time that the original complaint was not filed within the

one-year statute of limitations. The state judge implicitly

allowed the defense by granting Williams leave to amend

her complaint yet again to try and meet the defense.

In her third amended complaint, filed on July 29, 2003,

Williams retained her common law claims and for the

first time set forth a claim under § 1983. Accordingly,

the defendants removed the case to federal court and filed a

motion under Fed. R. Civ. P. 12(b)(6) to dismiss

the complaint on the grounds that the one-year statute

of limitations had run on her state-law claims before she

filed her original complaint and that the two-year statute of

limitations had run on her § 1983 claim before she amended

her complaint to include it. In January 2004 the district

court granted the defendants’ motion and dismissed the

case with prejudice. The judge held that Williams’ § 1983

claim was time-barred because she did not raise it until she

filed her third amended complaint in July 2003, well over

two years (almost five years, actually) after the alleged
No. 04-1497 3

violation. The judge held that Williams’ state tort claims

were time-barred because her original complaint was not

filed within the one-year period allowed in Illinois for civil

actions based on common law claims against governmental

entities and their employees.

Williams’ only argument on appeal is that the defendants

waived the statute of limitations defense by not asserting it

“at the earliest possible moment.” The following legal

background explains why this is the only issue before us.

First, as the district court concluded, the statute of limitations applicable to Williams’ state-law claims is one year. A

two-year statute of limitations generally applies to personal

injury actions in Illinois, 735 Ill. Comp. Stat. 5/13-202; thus,

§ 1983 claims in Illinois are also governed by a two-year

limitations period, Hileman v. Maze, 367 F.3d 694, 696 (7th

Cir. 2004). Illinois local governmental entities and their

employees, however, benefit from a one-year statute of

limitations for “civil actions” against them. 745 Ill. Comp.

Stat. 10/8-101. While the two-year period still applies to

§ 1983 claims against such defendants, Ashafa v. City of

Chicago, 146 F.3d 459, 462 (7th Cir. 1998), the one-year

period applies to state-law claims that are joined with a §

1983 claim. American Nat’l Bank & Trust Co. of Chi. v.

Town of Cicero, No. 01 C 1396, 2001 WL 1631871, *14

(N.D. Ill. 2001). Therefore, Williams’ state-law claims were,

as she concedes, already time-barred when they were first

brought. American Nat’l Bank & Trust Co. of Chi., 2001 WL

1631871, at *14.

Second, the district court’s unspoken assumption that

Williams’ § 1983 claim did not relate back to her original complaint was also correct. In order to benefit from

Fed. R. Civ. P. 15(c)’s “relation back” doctrine, the original complaint must have been timely filed. Henderson v.

Bolanda, 253 F.3d 928, 931-32 (7th Cir. 2001). If an original

complaint against Illinois local governmental defendants is

not filed within one year of the injury and does not claim a
4 No. 04-1497

constitutional violation, we will not deem a later § 1983

claim timely merely because it rests on the same factual

allegations included in the original complaint. Id. at 932 &

n.3. As the original complaint was not timely, it cannot “act

as a lifeline for a later complaint, filed after the two-year

statute of limitations for the claims which it contained.” Id.

Thus, even though Williams’ § 1983 claim arises from the

same incident as her tort claims, and even though her

original complaint was filed within two years of that

incident, her § 1983 was time-barred because the tort

claims were not timely filed.

Williams argues, however, that the defendants waived

their limitations defense to all her claims by not asserting it

in their answer to the second amended complaint or at any

other time during the next twenty months. This argument

of course is frivolous with respect to her § 1983 claim

insofar as the defendants moved to dismiss that claim as

soon as Williams amended her complaint to add it. See

Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999)

(holding that failure to plead affirmative defense to original

complaint does not amount to waiver where defense is

raised in response to amended complaint).

That leaves only Williams’ contention that the defendants

waived their limitations defense to the state-law claims by

failing to raise it earlier in the state court proceedings.

Though the district court dismissed the federal claim

forming the basis for removal jurisdiction, the court properly retained jurisdiction to decide this remaining issue. See

28 U.S.C. § 1367(c)(2) (district court has discretion to retain

jurisdiction after dismissing all claims forming basis for

federal jurisdiction); Baker v. Kingsley, 387 F.3d 655-56 (7th

Cir. 2004) (applying same rule in removal context). A

removed action proceeds as if it had originally been brought

in federal court; thus, we take the case as though everything done in the state court had been done in the federal

district court. See First Republic Bank Fort Worth v.
No. 04-1497 5

Norglass, Inc., 958 F.2d 117, 119 (5th Cir. 1992); Chicago

R.I. & P.R. Co. v. Igoe, 212 F.2d 378, 382 (7th Cir. 1954).

Federal Rule of Civil Procedure 8(c) requires a defendant to

include affirmative defenses like a statute of limitations in

its answer, which the defendants did not do. However, the

district court has the discretion to allow an answer to be

amended to assert an affirmative defense not raised

initially. See Fed. R. Civ. P. 15(a); Jackson v. Rockford

Housing Auth. 213 F.3d 389, 392-93 (7th Cir. 2000)

(“Amendment is allowed absent undue surprise or prejudice

to the plaintiff.”).

In this case the limitations defense came late as to the

state-law claims since the defendants already had answered

Williams’ second amended complaint. Nevertheless, we can

infer that the state judge implicitly allowed the defense to

be asserted because rather than denying the motion, he

granted Williams leave to amend her complaint in response

to the defendants’ motion. Williams asserts that the state

judge abused his discretion in allowing the defense to be

asserted. Though she does not develop the argument, she

points to our decision in Venters v. City of Delphi, 123 F.3d

956 (7th Cir. 1997). In Venters, the district judge allowed

assertion of a limitations defense even though the defendants raised it for the first time in a reply memorandum in

support of their summary judgment motion, on the eve of

oral argument. Id. at 968. We reversed because the plaintiff

was prejudiced by the defendants’ delay as the delay

effectively “deprived [her] of any reasonable opportunity

to address that defense.” Id. By permitting the defendant to

raise the issue at the eleventh hour and giving the plaintiff

almost no time to respond, we concluded the district court

had “bushwhacked” the plaintiff. See id. at 969. In contrast,

the state judge here gave Williams time to respond to the

defendants’ limitations defense. The purpose of Rule 8(c) is

to give the opposing party notice of the affirmative defense

and a chance to rebut it. Blonder-Tongue Labs., Inc. v.
6 No. 04-1497

Univ. of Ill. Found., 402 U.S. 313, 350 (1971). Thus, where

the plaintiff has an opportunity to respond to a late affirmative defense, he cannot establish prejudice merely by

showing that the case has progressed significantly since the

defendants answered his complaint. See Jackson, 213 F.3d

at 393; Brinkley v. Harbour Recreation Club, 180 F.3d 598,

612 (4th Cir. 1999); Camarillo v. McCarthy, 998 F.2d 638,

639 (9th Cir. 1993); Moore, Owen, Thomas & Co. v. Coffey,

992 F.2d 1439, 1445 (6th Cir. 1993); Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1374 (3d Cir. 1993). Because

Williams does not suggest any prejudice to her from the

defendants’ delay other than her subsequent preparation

for trial, the court did not abuse its discretion in allowing the defense.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-1-05