The sole remaining recourse for the DeJesuses is to show that the claim against the City
relates back to the claims against the individual officers. For an amendment to relate back under the
federal or Illinois law applicable to this case, the City must be chargeable with knowledge of the
action before the statutory period elapsed and its possible exposure to liability. Wood v. Worachek,
618 F.2d 1225, 1230 (7th Cir. 1980). This requirement can be satisfied if the City’s involvement
in the proceedings by defending the individual officers would have foreshadowed that its later
inclusion, even though it was never formally made a part of the action. Hampton v. Hanrahan, 522
F. Supp. 140, 145 (C.D. Ill. 1981). To determine whether the City should have realized its exposure,
we must look to the allegations of the original complaint. Hill v. Shelander, 924 F.2d 1370, 1379
(7th Cir. 1991); Norton v. Int’] Harvester Co., 627 F.2d 18, 21 (7th Cir. 1980).

The allegations of the original counts are directed solely to the behavior of the individual
officers. The contents of the pleadings could thus lead only to liability if the City under a theory of
respondeat superior, and it is well-settled that a municipality cannot be held liable under § 1983

solely for the actions of its agents. See, e.g., Monell v. New York City Dept. of Social Servs., 98

S. Ct. 2018, 2036 (1978); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Therefore,
even though counsel for the City has been involved in this case for some time, nothing in the
complaint would have alerted them to the possibility that the City would become a party. Therefore,
under either Fed. R. Civ. Proc. 15(c)(3) or 735 ILCS 5/2-616(d), the City cannot be charged with the
knowledge that would allow the proposed amendment to relate back to the date of the original
complaint, and the DeJesuses claims against the City are barred by the two-year statute of limitations

for § 1983 actions brought in Illinois. 735 ILCS 5/13-202; Shropshear v. Corp. Counsel of City of

Chicago, 275 F.3d 593, 594 (7th Cir. 2001).


The DeJesuses attempt to substitute the City for the Chicago Police Department (“the
Department”). The City maintains that the Department was never served or named. Because a
nonparty clearly cannot be the basis for a substitution, the City argues that the proposed amendment
is improper. For their part, the DeJesuses insist that the Department was a defendant, offering three
pieces of evidence to support their contention. First, they point to the appearance of the words “City
of Chicago Police Department” in capital letters in the caption of the case. This argument ignores
the fact that the phrase is used not to identify the Department but to describe the dismissed officers,
who are named “individually and as Chicago Police Officers and agents of the CITY OF CHICAGO
POLICE DEPARTMENT.” The complaint contains no separate reference to the Department as a
defendant. Contrary to the DeJesuses’ protestations, the formatting of the words within a caption
will not override the plain meaning of the words themselves. Second, they claim that a stray
reference on the second page of the complaint shows that the Department was a party to the case.
This isolated reference is just that. Such a slender reed cannot suffice to render the Department a
formally named party. Lastly, the DeJesuses offer up a return of service document, which they claim
demonstrates that the Department was in fact served in July 2001. Although the return of service
on its face seems to support a conclusion favorable to the DeJesuses’ position, their attorney
represented to this court in an affidavit submitted in support of their opposition to the previous
motion to dismiss that the service attempt at City Hall was directed toward the individual officers,
not the department itself. After making that representation, the DeJesuses cannot now change their
tune and claim that service was intended for the Department. We therefore agree with the City that

the Department was not a party, and the DeJesuses cannot substitute one for the other.


CONCLUSION

Based on the foregoing analysis, the motion to amend the complaint is denied.

CAQ. Pew,

Charles P. Kocoras
Chief Judge, United States District Court
United States District Judge

AUG ~ 8 2002
Dated:


Mi i Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Charles P, Kocoras

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 C 1685 DATE 8/8/2002
CASE DeJesus et al vs. Jeshke et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(09) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) i) Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) im} Trial{set for/re-set for] on at ‘
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OGeneral Rule21 OFRCP41(a\(1) O FRCP4I1(a)(2).
(10) Mi [Otherdocketentry] Ruling held. ENTER MEMORANDUM OPINION: Plaintiffs’ motion (Doc
16-1) to amend the complaint is denied. All other pending motions are denied.
(il) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
‘4 number of notices

Notices mailed by judge's staff.

AUG 09 2002

Notified counsel by telephone. date docks

wv | Docketing to mail notices.

¥ | Mail AO 450 form.

Koy ft oputy initials

Copy to {Mge/magistryré judge.
date mailed notice
courtroom
scT deputy’s
initials

{ G sBateltime'réceived in

central Clerk’s Office mailing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

VIVIAN DeJESUS and ELVIA DeJESUS,
Plaintiffs,

vs. 02 C 1685

Star #9514; D. KOWALSKI, Star #18713; and T.
MARTIN, Star #14313, individually and as
Chicago police officers and agents and officers of

)

)

)

)

)

)

R. JESHKE, Star #5103; PATRICK CONROY, +)
)

)

)

the City of Chicago Police Department, )
)

)

ened

qt 9 qt.
MEMORANDUM OPINION we

Defendants.

CHARLES P. KOCORAS, District Judge:

This matter comes before the court on the motion of Plaintiffs Elvia and Vivian DeJesus to
amend their complaint pursuant to Fed. R. Civ. Proc. 15. For the reasons set forth below, the motion
is denied.

BACKGROUND

On July 31, 1999, Plaintiff Elvia DeJesus executed a rental agreement for a motor vehicle
from Budget Rent-A-Car Corporation (“Budget”). On or about August 13, 1999, Budget reported
the rental vehicle as stolen to the Chicago Police Department. On September 4, 1999, the officers
discovered the DeJesuses within the rental vehicle, placed them under arrest, and subsequently
detained them. The DeJesuses allege that they were verbally abused, prevented from contacting their

family members, and otherwise abused and mistreated by the officers.


After several unsuccessful attempts at service detailed in our previous opinion, the Circuit
Court dismissed the case for want of prosecution on October 19, 2001. Shortly thereafter, the
DeJesuses reinstated the case, which was removed to this court some months later. Defendants
Jeschke, Conroy, and Martin (“the officers”) were dismissed from the DeJesuses’ complaint by this
court pursuant to Il. Sup. Ct. R. 103(b) on June 26, 2002. The DeJesuses seek to amend their
complaint to name the City of Chicago as a defendant.

DISCUSSION

Fed. R. Civ. Proc. 15 governs amendments of complaints. When an amendment involves a
party rather than a claim or defense and occurs beyond the time given by the applicable statute of
limitations, it will be considered to relate back to the date of the original pleading only in one of two
circumstances. First, amendment is permissible ifthe law providing the statute of limitations permits
relation back as to the party. Fed. R. Civ. Proc. 15(c)(1). Second, a party can be added or substituted
for ani existing party if the plaintiff made an error concerning the identity of the correct party and the

party to be added knew or should have known of the mistake. Fed. R. Civ. Proc. 15(c)(3); Baskin

y. City of Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998).

In Illinois, relation back is governed by 735 ILCS 5/2-616(d). Similar to Rule 15(c)(3), the
statute provides that a statute of limitations will not bar an action ifthe original action is filed within
the proper time frame and the party to be added received notice of the action within the time allowed
for service, such that the person knew or should have known that suit would be brought against that
party but for a mistake in identification of the proper party. 735 ILCS 5/2-616(d). In addition, the
delay in identification must not prejudice the proper party in maintaining a defense on the merits.

Id.