a“

No, 02 € 5130 Page 4

An action that is voluntarily dismissed pursuant to Rule 41(a)(2) is treated as if it had

never been filed. Robinson v. Willow Glen Academy, 895 F.2d 1168, 1169 (7'" Cir. 1990); 9

Wright & Miller, Federal Practice and Procedure: Civil 2d § 2367, at 321 (1994). A plaintiff
who seeks to refile a voluntarily dismissed claim ordinarily must do so within the time period
set by the controlling statute of limitations. Beck v. Caterpillar, Inc., 855 F. Supp. 260, 264
(C.D. Ill. 1994), Voluntary dismissal did not terminate the case before the court — only the

Monell claims were dismissed. After plaintiff voluntarily dismissed those claims, it was as if

they were never filed. When plaintiff sought to reinstate them, she treated them as if they were
amendments, so that they could relate back to the original pleading, just as she did with her
new claim. This is precisely what we meant in our prior order when we wrote, “there is no

dispute that the Monell claims arise from identical facts as the state law claims currently

pending.” The fact that we said “Monell claims” rather than “Monell claim” should have

indicated to the City ‘that we related back both “old” and “new” Monell claims to the original

pleading. Nothing in Adams v. Lever Bros. Co., 874 F.2d 393 (7" Cir. 1989)~a case the City

cites—suggests that the voluntarily dismissed Monell claims in this case cannot relate back to

the original pleading. Adams only states that claims dismissed pursuant to Rule 41(a) must

meet the statute of limitations. Rule 15(c) allows plaintiff to meet that requirement. Bularz

y. Prudential Ins. Co. of Am., 93 F.3d 372, 379 (7" Cir, 1996).

CONCLUSION

For the foregoing reasons, defendants’ motion to reconsider is denied.

Io ner. Merce

Sl JAMES B. MORAN
my

ior Judge, U.S. District Court
Suh . ag 2004.



No. 02 € 5130 : Page3

provide them with notice. In Hernandez the defendants were named in the caption of the
complaint but the body of the complaint omitted their names and only mentioned actions taken
“by defendants.” The court observed that such a pleading deficiency failed to link the
defendants to the alleged constitutional violations. Hernandez, 1997 WL 598132, *9-10.
Drawing on that observation, Gibson-Edwards claims that a complaint is similarly flawed
when it refers to “unknown” defendants. That may be true, but it is beside the point. As the
prior order noted, the complaint mentions conduct taken by Gibson-Edwards and she had
notice that she was the subject of the allegations, unlike Hernandez.

The City argues that this court made “an error of apprehension” when it allowed

plaintiff to reinstate her Monell claims. Our March 16, 2004, order denying plaintiffs motion

to reinstate was based on an error—we believed that the City had been dismissed entirely from
the complaint, which was not the case. If the City had been dismissed, then plaintiff's Monell
claims would have been time-barred pursuant to Federal Rule of Civil Procedure 41(a). But
because the City was not entirely dismissed, Rule 15(c) allowed plaintiff to “relate back” to the
original pleading. In the June 16, 2004, order we also held that plaintiff's voluntary dismissal
of her Monell claims was done without prejudice, relying on the language of the court’s order,
which makes no mention of prejudice. Rule 41(a)(2) states that voluntary dismissal is without
prejudice, unless an order indicates to the contrary.

The City’s challenge to the June 16, 2004, order is specific. In its motion to reconsider,
the City does not challenge the court’s ruling that allowed plaintiff to add a new policy claim,
and the conclusion that plaintiff's voluntary dismissal was without prejudice. Instead, the City
focuses on the “old” Monell claims that were voluntarily dismissed (Counts J, II, IV, and V
in the second amended complaint). The City argues that they cannot be reinstated because the

statute of limitations has run,



“tne oer ek (Go07)
United States District Court, Northern District of Illinois

Ni f Assigned Jud: Sitting Judge if Othe
vor Maghstrate Judge James B. Moran than Assigned Judge
CASE NUMBER 02 € 5130 DATE 9/29/2004
CASE DARLENE MOORE vs. CITY OF CHICAGO, et al
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.}

MEMORANDUM OPINION AND ORDER

DOCKET ENTRY:

00) Oo ‘Filed motion of [ use listing in “Motion” box above.]

2) O°" Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer briefdue_

(4) Qo Ruling/Hearing on setfor____at

(S) QO Status hearing[held/continued to] [set for/re-set for]on__setfor__—__—att

(6) im} Pretrial conference[held/continued to] {set for/re-set for]on___——_ssetfor__-—at___i.
(7) Qa Trial{set for/re-set for]on__—_at

(8) oO [Bench/Jury trial} [Hearing] held/continued to___—_at

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) CLocal Rule 41.1 CFRCP41(a)(1) OO FRCP41(a)(2).

(10). [Other docket entry] Enter Memorandum Opinion And Order. Defendants’ motion to reconsider
is denied.

(11) Ml [For further detail sce order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of notices

SEP $6 20m

date docketed

Notices mailed by judge’s staff,

Notified counsel by telephone.

a | Docketing to mail notices,

Mail AO 450 form.
Copy to judge/magistrate judge, POEM ETSI S$
courtroom lsh tla
LG deputy’s da ets
initials
Date/time received in,
centrat Clerk's Office _* tiling deputy nits



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

EASTERN DIVISION
DARLENE MOORE, )
Plaintiff, }

vs. } No. 02 C5130
CITY OF CHICAGO, et al., )
- Defendants, }

MEMORANDUM OPINION AND ORDER

Plaintiff Darlene Moore brought this action against defendants alleging violations of her

civil rights under 42. U.S.C. § 1983. She originally included Monell policy claims against the

City of Chicago (City), but in May 2003 she voluntarily dismissed those claims. In exchange

for the dismissal of the Monell claims, and in order to expedite the case to trial, the City

withdrew its motion to structure discovery. On June 25, 2003, plaintiff filed a second amended
complaint in which she named Delores Gibson-Edwards (Gibson-Edwards) as a defendant.

Plaintiff then filed.a motion to reinstate her Monell claims and add a new claim, On March 16,

2004, the court denied that motion, after which plaintiff filed a motion to reconsider and
Gibson-Edwards filed a motion to dismiss the claims against her. On June 16, 2004, we granted
plaintiff's motion to reconsider and denied Gibson-Edwards’ motion to dismiss. The City and
Gibson-Edwards then filed a motion to reconsider, and, for the following reasons, that motion
is denied.

A motion to reconsider is proper to correct manifest errors of law or fact, or to present

newly discovered evidence. Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7" Cir.

1987). Arguments that have already been rejected may not be rehashed and resuscitated on

reconsideration. Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1270 (7"

1


No. 02 € 5130 Page 2

Cir. 1996). We first address Gibson-Edwards’ claim that the denial of her motion to dismiss
presented manifest errors of fact and law.

The caption of plaintiff's complaint lists Gibson-Edwards as a defendant, but the body
of the complaint does not specifically mention her name. Relying on Potter v. Clark, 497 F.2d
1206 (7" Cir. 1974), and a string of cases that follow, Gibson-Edwards argued that she should
be dismissed from the suit. In our June 16, 2004 order, we rejected that argument and
concluded that the complaint referred to Gibson-Edwards. Gibson-Edwards now contends
that it was a manifest error of fact to deny her motion because the complaint does not refer to
her. While it is true.that Gibson-Edwards’ name is absent in the complaint, reference to her
acts does exist. We think it is enough that Gibson-Edwards had actual notice that she was
considered to bean unknown officer who ignored pleas for medical attention. In Count IV
plaintiff alleges that her pleas for medical attention were ignored by “unknown Chicago Police
Officers.” But, Gibson-Edwards had notice that these charges were levied against her since
on June 19, 2003, she was deposed by plaintiff for the purpose of discovering the identity of
the “unknown [individuals],” and, on June 25, 2003, plaintiff filed her second amended
complaint naming Gibson-Edwards asa defendant. Count IV references Gibson-Edwards by
conduct rather than by name, but it is a reference nonetheless. Therefore, concluding that the
complaint referenced Gibson-Edwards did not constitute a manifest error in fact. Ultimately,
plaintiff has alleged a “specific act on the part of the defendant” and that is enough to
distinguish this case from Potter, in which there was no such allegation.

Gibson-Edwards also argues that the prior order was based on a manifest error of law

because this court misapplied Hernandez v. County of DuPage, 1997 WL 598132, 1997 U.S.

Dist. LEXIS, 14526 (N.D. Ill, 1997). The June 16, 2004, order cited Hernandez in support of

our interpretation of Potter, that a complaint that alleges no action by defendants fails to