status is, in fact, irrelevant - even if she were an independent
contractor at all relevant times, Illinois’ general two-year
limitations period for personal injury actions, see 735 ILCS 5/13-
202, would still render Counts IV and V stale.

Attempting to salvage Counts IV and V against Krecioch in the
face of this limitations period defense, Plaintiff invokes Federal
Rule of Civil Procedure 15(c) (“Rule 15(c)”). Rule 15(c) (2)
provides that “[a]n amendment of a pleading relates back to the
date of the original pleading when . . . the claim or defense
asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth
in the original pleading.” Plaintiff contends that Rule 15(c) (2)
would allow her federal complaint, which was filed beyond the two-
year limitations period of 735 ILCS 5/13-202, to “relate back” to
her state complaint, which was timely filed on February 6, 2002,
and later voluntarily dismissed on September 20, 2002. Plaintiff
is mistaken.

“Rule 15(c), by its terms, only applies to amended pleadings
in the same action as the original, timely pleading.” Bailey v. N.
Ind. Pub. Serv. Co., 910 F.2d 406, 413 (7th Cir. 1990); Adams v.
Altman, 1995 WL 127779, at *5 (N.D. Ill. Mar. 25, 1995) (“Rule 15(c)
simply does not apply to a charge or complaint filed in another
distinct proceeding.”) (citing Bailey). Plaintiff contends that the
complaint currently pending in this Court is “for all intents and

purposes . . . an amended complaint.” (Pl.’s Supp. Resp. at 2.)

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Tolling Doctrines

Under certain circumstances, the doctrines of equitable
tolling and/or equitable estoppel will excuse a plaintiff from
filing suit within the applicable statute of limitations. Cada v.
Baxter Healthcare Corp., 920 F.2d 446, 450-52 (7th Cir. 1990).
Equitable estoppel applies where “the defendant takes active steps
to prevent the plaintiff from suing in time, as by promising not to
plead the statute of limitations.” Id. Equitable tolling “permits
a plaintiff to avoid the bar of the statute of limitations if
despite all due diligence he is unable to obtain vital information
bearing on the existence of his claim.” Id. at 451. Plaintiff
does not allege that either doctrine justifies tolling the
limitations period in the instant case.

CONCLUSION

For the foregoing reasons, Defenda ‘wild County Health

Department’s Motion to Dismiss Count IV/is GRANTED and Defendant
Krecioch’s Motion to Dismiss Counts IV/ and V is GRANTED.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Date: cLehstziw



whether actionable conduct is involved”). Plaintiff first brought
suit on that claim in Illinois state court on February 6, 2002
(which complaint was later voluntarily dismissed), and then again
in the present action on August 14, 2002. No matter which filing
date serves as the reference point, Plaintiff’s claim against the
Health Department for intentional infliction of emotional distress
in Count IV is time-barred. Accordingly, the Health Department is
dismissed as a defendant in Count IV.
Krecioch’s Motion to Dismiss Counts IV and V

The Complaint alleges that “Defendant Krecioch, at all times
relevant hereto, was an employee or duly authorized agent of
Defendant Health Department, with supervisory authority over
Plaintiff.” (Compl. 95.) Given that allegation, Krecioch, in her
Motion to Dismiss, argues that the one-year limitation period
applicable to civil actions brought against “a local entity or any
of its employees,” 745 ILCS 10/8-101, justifies dismissal of
Counts IV and V. Plaintiff, conceding the validity of that rule,
counters that Krecioch’s employment status is, in fact, unclear,
and that discovery may reveal that she was merely an independent
contractor and therefore not subject to 745 ILCS 10/8-101. See
745 ILCS 10/1-202 (The definition of “‘[e]mployee’ . . . does not
include an independent contractor.) Plaintiff has accordingly
requested leave to amend her complaint to plead in the alternative
Krecioch’s status as an employee or an independent contractor. In

Krecioch’s reply papers, she argues, correctly, that her employment

-3-+



Not so. The complaint filed in the instant action is not an
amended pleading. Rather, it is a separate and distinct complaint
with no legal relationship to the earlier-filed state court suit.
See Bailey, 910 F.2d at 413 (“Because the simulator claim was not
contained in an amended pleading in Suit 1 but in a second,
separate complaint, Rule 15(c) is inapplicable.”)

This is not a case where Defendants have removed a state court
action to a federal forum and Plaintiff is now simply seeking to
amend the complaint. Cf., e.g., Catoire v. Caprock Telecomm.
Corp., 2002 WL 927780 (E.D.La. May 7, 2002); Wasik v. Stevens
Lincoln-Mercury, Inc., 2000 WL 306048 (D. Conn. Mar. 20, 2000)
Instead, at issue here are two separately-filed actions. The first
is Plaintiff’s state court complaint (“Complaint 1”), which
contained ostensibly timely (i.e., assuming Krecioch was not, after
all, a Health Department “employee”) claims against Krecioch for
intentional infliction of emotional distress and battery. The
second is the complaint currently pending before this Court,
Counts IV and V of which contain time-barred claims. Although
Plaintiff had no obligation to do so, she voluntarily elected to
dismiss Complaint 1 on September 20, 2002, thus terminating that
suit. Plaintiff could have preserved the timeliness of Counts IV
and V by bringing her Title VII claims in state court by way of an
amendment to Complaint 1, see Donnelly v. Yellow Freight Sys.,
Inc., 874 F.2d 402, 406 & n.4 (7th Cir. 1989) (holding that state
and federal courts have concurrent jurisdiction over Title VII

-5-



Minute Qxder Form (00/97)

United States District Court, Northern District of Illinois

Name of A Harry D. Leinenweber Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 5796 DATE 12/23/2002
CASE Elizabeth A. Protich vs. Will County Health Department, et a
TITLE

[Ja the following box (a) indicate the party filing the motion, ¢.g., plaintif?, defendant, 3rd party plaintiff and (b) state briefty the nature

of the motion being presented. |

MOTION:

DOCKET ENTRY:

qd) 0 Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) Oo Answer brief to motion due___._ Reply to answer brief due.

(4) a Ruling/Hearing on set for at

(5) a Status hearing set for 22 Jan. 03 at 9:00 A.M..

(6) im} Pretrial conference[held/continued to] [set for/re-set for]on___setfor__—at_

(7) Qo Trial[set for/re-set for] on __at

(8) 0 {Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CO Local Rule 41.1 OOFRCP41(a\(1) © FRCP41(a)(2).

(10) HH (Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Defendant Will County

Health Department’s Motion to Dismiss Count IV is GRANTED and Defendant Krecioch’
Dismiss Counts [V and V is GRANTED.

s Motion to

al) [For further detail see order attached to the original minute order.]
No notices required, advised in open court Document
Number
No notices required.

umber of notices

Notices mailed by judge's staff.

DEG 2.4.2002

S\.. |

Notified counsel by telephone.
Docketing to mail notices

Mail AO 450 form.

Copy to judge/magistrate judge.

tate nailed notice
courtroom,

wap

Pog ey
Datertime rebeived fit
central Clerk’s Office inailing depury initials



claims), or by simply bringing her Title VII claims alone in
federal court. She chose not to do so, and is now reaping the
consequences.

Plaintiff’s reliance on Donnelly, a case presenting fairly
unique circumstances, is misplaced. First, unlike here, the
defendant in Donnelly removed the originally-filed state action to
federal court, id. at 405, thus ensuring the requisite legal
continuity between the complaint filed in the state court and the
subsequently amended complaint presented in federal court. Second,
and relatedly, Donnelly was a case where the originally-filed
complaint in the same action was, as Rule 15 specifically requires,
actually being amended. Donnelly, 874 F.2d at 411 (“(WJe find the
plaintiff’s amended complaint relates back to the filing date of
the original complaint and thus was timely filed.”) The Donnelly
panel reached this result in the face of a hopelessly muddled
underlying state court order (“the agreed [state court] order
utterly makes no sense,” id. 410) which appeared to have dismissed
the original complaint with prejudice and continued plaintiff's
contemporaneous motion to amend the complaint. The Donnelly panel
‘“refus[ed] to adhere to the literal consequences” of that order, as
it would have meant that “there is no original complaint to which
the amended complaint could relate back.” Id. at 410. Such a
result, of course, would have placed the complaint outside the

scope of Rule 15(c). See Bailey, 910 F.2d at 413.



FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DEC 2 3 2002
JUDGE HARRY D. LEINENWEBER
ELIZABETH A. PROTICH, US. DISTRICT COURT JUDGE
Plaintiff,
v.

Case No. 02 CV 5796
WILL COUNTY HEALTH DEPARTMENT,

a division of Will County, a Hon. Harry D. Leinenweber
body politic, and JOAN
KRECIOCH,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Elizabeth A. Protich (“Plaintiff”) brings this
action against the Will County Health Department (“Health
Department”) and Joan Krecioch (“Krecioch,” and, together with the
Health Department, the “Defendants”), asserting federal claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and state common law claims for intentional infliction of
emotional distress (“Count IV”) and battery (“Count V”). Presently
before the Court is the Health Department’s Motion to Dismiss
Count IV and Krecioch’s Motion to Dismiss Counts IV and V. Each
motion is brought pursuant to Federal Rule of Civil
Procedure 12(b)} (6) (“Rule 12 (b) (6)”%). For the following reasons,
the Court grants both motions.

STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) tests whether the

plaintiff has properly stated a claim upon which relief could be

DOCKETED

DEC 2 4 2002


granted, not whether the plaintiff will ultimately prevail on the
merits. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In ruling on
a motion to dismiss, a court must construe all well-pleaded
allegations of the complaint as true, and draw all reasonable
inferences in favor of the plaintiff. Id. A motion to dismiss
will not be granted unless it “appears beyond doubt that the
plaintiff can prove no set of facts in support of his claims which
would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
(1957).
DISCUSSION
Will County Health Department’s Motion to Dismiss Count IV

Under Illinois’ Local Governmental and Governmental Employees
Tort Immunity Act, 745 ILCS 10/8-101, “{nJo civil action may be
commenced in any court against a local entity or any of its
employees for any injury unless it is commenced within one year
from the date that the injury was received or the cause of action
accrued.” There is no dispute that the Health Department is a
“local entity” for purposes of the statute. Plaintiff's asserted
claim against the Health Department for intentional infliction of
emotional distress accrued, at the very latest, on the date her
employment was terminated - April 4, 2000 (Compl. 9 13); see Knox
Coll. v. Celotex Corp., 430 N.E.2d 976, 980 (Ill. 1981) (holding
that the limitations period begins to run once “the injured person
becomes possessed of sufficient information concerning his injury
and its cause to put a reasonable person on inquiry to determine

-2-