Furthermore, Banks’ affidavit would not change the date that he reasonably should have
known of the injury for which the damages are sought. In his affidavit, Banks again admits that
he learned of a judgment against him in late November 1999 in favor of Health Industry
Professionals. Banks attempts to argue that because of other litigation pending in Michigan by
Health Industry Professionals, he somehow did not know of the judgment against him in the
Adversarial Case. However, Banks knew by late November 1999 that a judgment was entered
against him in a case involving the same plaintiff, Health Industry Professionals. Therefore, at
the time Banks reasonably should have known of the injury for which he now seeks damages.

For the reasons stated above, Defendants’ Motion to Dismiss is granted. Plaintiff's
Verified Complaint is dismissed with prejudice, Defendants’ Motion to Transfer is denied as

moot,

Dated: fp ALA

\OHN W. DARRAH
ited States District Judge



state. The Illinois Borrowing Statute applies only when none of the parties of the cause of action
were Illinois residents when the cause of action accrued. See Newell Co. v. Petersen, 325 Ill.
App. 3d 661, 687 (2001); Employers Ins. of Wausau v. Ehlco Liquidating Trust, 309 Ill. App. 3d
730, 737 (1999). In the instant case, Banks was an Illinois resident when the cause of action
accrued. Accordingly, the Illinois Borrowing Statute does not apply, and the Illinois statute of
limitations does apply.

The Illinois Code of Civil Procedure provides a two-year statute of limitations for claims
alleging legal malpractice which are based on tort and/or contract. 735 ILCS 5/13-214.3(b). The
cause of action must be commenced within two years from the time the person bringing the
action knew or reasonably should have known of the injury for which the damages are sought.
735 ILCS 5/13-214,3(b); Broadnax v. Morrow, 326 Ill. App. 3d 1074, 1079 (2002).

Here, Banks’ Verified Complaint states that he “became aware of the Adversarial
Judgment in late November of 1999". Banks’ cause of action is based on Defendants’ failure to
properly defend Banks in the Adversarial Action in which the alleged improper Adversarial
Judgment was entered. Accordingly, Banks’ Verified Complaint specifically states he became
aware of his alleged injury and that the Defendants caused the alleged injury in late November of
1999. Banks did not file the instant suit until December 7, 2001. Accordingly, Banks’ claims are
barred by the statute of limitations.

Banks attempts to avoid dismissal of his Verified Complaint by attaching an affidavit to
his response to the Defendants’ motion. However, Banks cannot amend his complaint through
attachments to his response to the motion to dismiss. See Shanahan v. City of Chicago, 82 F.3d

776, 781 (7th Cir. 1996); Car Carriers v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984).



° AO 450(Rev. $/85)Judgment in a Civil Case

United States District Court
Northern District of Ilinois

Eastern Division

REYNOLDS BANKS JUDGMENT IN A CIVIL CASE
Vv. Case Number: 02 C 5401
ROBERT D. GORDON, et al

Oo Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

| Decision by Court. This action came to trial or hearing before the Court. The issues
have been tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that defendants’ motion to dismiss is granted.
Defendants’ motion to transfer is denied as moot. Plaintiff's verified complaint is dismissed
with prejudice.

Michael W. Dobbins, Clerk of Court

-
Date: 2/11/2003 Aaeds Hutch
Linda Garth, Deputy Clerk



a

Minute Order Fore (0647)

: GG AL United States District Court, Northern District of Ilinois

Ni ‘Assigned J jarrah Sitting Judge if Oth
thvsteltde John W. Di than Assigned Judge
CASENUMBER 02 C 5401 DATE 2/11/2003
CASE REYNOLDS BANKS vs. ROBERT D. GORDON
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:
qd) o Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
G) Oo Answer brief to motion due. . Reply to answer brief due. .
(4) Oo Ruling/Hearing on set for at
(5) oOo Status hearing[held/continued to] [set for/re-set for] on set for
(6) Oo Pretrial conference[held/continued to] (set for/re-set for] on set for .
a) a Trial{set for/re-set for] on at
(8) a [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) C)Local Rule 41.1 OFRCP41(a)(1) OFRCP41(a}(2).
qo [Other docket entry] Status hearing held. Enter Memorandum Opinion And Order. Defendants’
motion to dismiss is granted. Defendants’ motion to transfer is denied as moot. Plaintiff's verified
complaint is dismissed with prejudice.
ai @ [For further detail see order attached to the original minute order.)
No notices required, advised in open court,
No notices required,
Notices mailed by judge's staff.
Notified counsel by telephone.
~ | Docketing t0 mail notices.
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Copy to judge/magistrate judge. Mea
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UNITED STATES DISTRICT COURT 13))
NORTHERN DISTRICT OF ILLINOIS POCKET
EASTERN DIVISION 2003
FEB 12
REYNOLDS BANKS, )
)
Plaintiff, )
)
v. ) No. 02 C 5401
)
ROBERT D. GORDON, individually and ERMAN, y Judge John W. Darrah
TEICHER, MILLER, ZUCKER, FREEDMAN & y
GORDON, P.C., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER

Plaintiff, Reynolds Banks (“Banks”), filed this action against Defendants, Robert Gordon
and Erman, Teicher, Miller, Zucker, Freedman & Gordon, P.C. (‘Defendants”), alleging
professional negligence and breach of contract. Presently pending before the Court is
Defendants’ Motion to Dismiss based on the running of the statute of limitations. In the
alternative, Defendants seek a transfer to Michigan.

A reading of Banks’ Verified Complaint at Law supports the following summary of the
alleged conduct of the parties.

Banks is a resident of Illinois. Defendants are an attomey and a law firm licensed to
practice law in the state of Michigan.

Prior to March 22, 1999, Banks retained Defendants to represent Banks in the case of
Health Industry Professionals LLC v. HealthBank Network Development, Inc., Case No. 99-
900272, in the Circuit Court for the County of Wayne, Detroit, Michigan (“Adversarial Case”).

Banks was named as a co-defendant in the breach of contract claims of the Adversarial Case.

La



However, Banks had never entered into any contract with the plaintiff in the Adversarial Case.
Banks retained Defendants in order to obtain a dismissal of the proceedings against Banks.

On March 22, 1999, a judgment was obtained against Banks in the Adversarial Case in
the amount of $134,403.91. “{Banks] became aware of the Adversarial Judgment in late
November of 1999.”

In reviewing a motion to dismiss, the court reviews: all facts alleged in the complaint and
any inferences reasonably drawn therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir.2000). Dismissal is
warranted only if the plaintiff can prove no set of facts in support of its claims that would entitle
it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). However, if a “plaintiff pleads
facts that show its suit [is] barred by a statute of limitations, it may plead itself out of court under
a Rule 12(b)(6) analysis.” Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir.
1995). “The running of the statute of limitations, normally an affirmative defense, will be an
appropriate ground for dismissal if it ‘clearly appears on the face of the complaint’.” Rylewicz v.
Beaton Serv., Ltd., 698 F. Supp. 1391, 1393 (N.D. Ill 1988), quoting Quiller v. Barclays
American Credit, Inc., 727 F. 2d 1067, 1069 (11th Cir. 1984).

“A district court exercising its diversity jurisdiction applies the law of the state in which it
sits, including that state’s choice of law rules.” See Stavriotis v. Litwin, 710 F. Supp. 216, 217
(N.D. Ill. 1988), Accordingly, this Court applies Illinois choice of law rules as to the statutes of
limitations.

Illinois courts look to Illinois’ Borrowing Statute to determine whether a foreign statute

of limitations applies to a cause of action brought in Illinois courts but which arose in a foreign