Diaz v. Shallbetter

• Decision Date: 28 January 1993
• Docket Number: No. 92-1344,92-1344
• Citation: 984 F.2d 850
• Parties: Enrique DIAZ, Plaintiff-Appellant, v. Dennis SHALLBETTER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 850

984 F.2d 850

24 Fed.R.Serv.3d 1086

Enrique DIAZ, Plaintiff-Appellant, v. Dennis SHALLBETTER, Defendant-Appellee.

No. 92-1344.

United States Court of Appeals Seventh Circuit.

Argued Nov. 30, 1992.

Decided Jan. 28, 1993.

Kenneth N. Flaxman (argued), Chicago, IL, for plaintiff-appellant.

Timothy J. Frenzer, Joseph Polick, Jean Dobrer (argued), Kelly R. Welsh, Benna R. Solomon, Office of the Corporation Counsel, Chicago, IL, for defendant-appellee.

Before COFFEY and EASTERBROOK, Circuit Judges, and LAY, Senior Circuit Judge. ^*

EASTERBROOK, Circuit Judge.

Two years to the day after being shot by a police officer in Chicago, Enrique Diaz filed suit against John Shullbetter. An attempt to serve process was unsuccessful; there is no such person (at least not in Chicago). Diaz amended his complaint to name Dennis Shallbetter, who claimed shelter from the statute of limitations. The version of Fed.R.Civ.P. 15(c) governing in February 1991, when Diaz filed his complaint, provided that an amendment changing the defendant relates back to the date of initial filing only if the proper defendant had actual notice of the litigation within the period of limitations. See Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). Because Diaz waited until the last day to file his complaint, Shallbetter did not receive timely notice, and amendment was forbidden. Out went the complaint, and the suit. 1991 U.S.Dist. LEXIS 11078, 1992 U.S.Dist. LEXIS 296, 1992 U.S.Dist. LEXIS 512.

Until its amendment effective December 1, 1991, Rule 15(c) created an anomaly. A plaintiff who filed a timely complaint has 120 days to serve the defendant with process. See Fed.R.Civ.P. 4(j); West v. Conrail, 481 U.S. 35, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987). So a person properly named in the complaint might not know until four months after the running of the period of limitations that he was a defendant. But if the plaintiff mistook the defendant's name, correction after the period of limitations would not relate back, and the suit would be untimely, even though the plaintiff served the proper person before the 120 days were up. A defendant served 10 days after the period of limitations would prevail if the original complaint contained a misnomer, while a defendant in the dark for 120 days could not plead the statute of limitations if the complaint identified him. As amended, Rule 15(c) provides that if the error is corrected and notice given to the right party within the time provided by Rule 4(j), the change relates back to the original complaint. Dennis Shallbetter received the amended complaint and summons on April 1, 1991, only 34 days after Diaz filed his complaint against "John Shullbetter." Diaz contends that the current version of Rule 15(c) should be applied, resuscitating his suit.

Two courts of appeals have held that the new Rule 15(c) revives claims that were time-barred at their inception under the old version of that rule. Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 546 (5th Cir.1992); Hill v. United States Postal Service, 961 F.2d 153, 155-56 (11th Cir.1992). See also Bayer v. United States Department of the Treasury, 956 F.2d 330, 334-35 (D.C.Cir.1992) (dictum). One court of appeals has declined to apply the amendment retroactively, without excluding the possibility of retroactive application in an especially attractive case. Freund v. Fleetwood Enterprises, Inc., 956 F.2d 354, 363 (1st Cir.1992); Afanador v. United States Postal Service, 976 F.2d 724 (1st Cir.1992). We have applied the former version of Rule 15(c) to a case decided after its amendment, but without discussing the retroactivity question. Farrell v. McDonough, 966 F.2d 279, 282-83 (7th Cir.1992).

Skoczylas and Hill invoked the principle that appellate courts apply the law in force at the time of decision. This has a long lineage, traced in Bradley v. School Board of Richmond, 416 U.S. 696, 711-16, 94 S.Ct. 2006, 2015-19, 40 L.Ed.2d 476 (1974). There is an even more venerable principle that changes in statutes do not apply to pending cases unless the legislature so commands, explicitly. Several opinions in Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990), explore these cases. Justice Scalia pronounced the two lines of precedent, which rarely discuss each other, "in irreconcilable contradiction." Id. at 841, 110 S.Ct. at 1578 (concurring opinion). This court has agreed with Justice Scalia's conclusion and opted for the presumption against retroactivity. Luddington v. Indiana Bell Telephone Co., 966 F.2d 225, 227-28 (7th Cir.1992). See also, e.g., Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992). Presumptions may be overcome, but doing so is especially tough when the altered rule specifies the time within which some act must occur. Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1527 (7th Cir.1990). Laws enlarging the statute of limitations traditionally are applied prospectively; sometimes courts even hint that legislatures lack the power to revive claims that have become barred by lapse of time. Bradley, 416 U.S. at 720, 94 S.Ct. at 2021 (collecting cases).

The federal rules are riddled with time limits. United States v. Kimberlin, 776 F.2d 1344 (7th Cir.1985), declined to apply retroactively an enlargement in one of these limits. Although Kimberlin dealt with a change in Fed.R.Crim.P. 35 rather than Fed.R.Civ.P. 15, it employed a rule of construction applicable to any time limit in the federal rules: retroactive change of a time limit is sufficiently disfavored and unusual that the drafter needs to "say so pretty clearly before a court will conclude that the [rule] produces this effect." 776 F.2d at 1347.

When transmitting to Congress the 1991 round of amendments to the civil rules, the Supreme Court specified that the revised rules "take effect on December 1, 1991, and shall govern all proceedings in civil actions thereafter commenced and, insofar as just and practicable, all proceedings in civil actions then pending." 134 F.R.D. 525 (1991). Skoczylas and Hill understood this language as authorization for retroactive application. We do not read it so. It tracks 28 U.S.C. § 2074(a), part of the Rules Enabling Act, which provides that when amending rules the Court

may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies.

Amendments may or may not govern "further proceedings" in pending cases. Neither the statute nor the Court's implementing language implies using an amendment to change the consequences of actions completed before December 1, 1991. They say only that new acts in cases already on the docket ordinarily should conform to the new rules. Although the Supreme Court's words might be stretched to imply reinstating litigation properly decided under the former rules (the district court dismissed Diaz's complaint against Shallbetter on August 7, 1991), they do not command retroactive application. No case in this circuit that the parties have cited, and no case that we have been able to find, uses a change in statute or rule to revive an action barred by the statute of limitations at the time of its commencement. Adhering to the clear-statement approach of Kimberlin, and the assumption of Farrell, we conclude that the amendment to Rule 15(c) does not revive lapsed claims.

Although the amendment changing John Shullbetter to Dennis Shallbetter does not relate back under the federal rules, this does not necessarily doom Diaz's suit. We know from 42 U.S.C. § 1988 and Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), that, although federal law governs the period of limitations in litigation under 42 U.S.C. § 1983 (the foundation of Diaz's claim), the federal law comes from state law--"including closely related questions of tolling and application". 471 U.S. at 269, 105 S.Ct. at 1943 (footnote omitted). Section 1983 actions in Illinois must be filed within two years of the injury. Farrell, 966 F.2d at 280-82; Kalimara v. Illinois Department of Corrections, 879 F.2d 276 (7th Cir.1989). Does a timely complaint with a misnomer satisfy the statute of limitations in Illinois when the right defendant learns of the action promptly, but after the period of limitations has run? Posing the question in this way is not at all to say that a state's procedural rules govern litigation in a federal court. When federal law borrows a state period of limitations, the suit is commenced by filing the complaint, and service is effective if achieved within the time allowed by Rule 4. See West, 481 U.S. at 39 & n. 4, 107 S.Ct. at 1541 & n. 4, distinguishing Walker v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). If Illinois required plaintiffs to serve their adversaries with process before the end of the statute of limitations, in § 1983 litigation a complaint plus service within 120 days nonetheless would suffice, provided any essential amendment to the complaint related back under Rule 15(c). Rule 15(c) is part of federal law, and its meaning is a federal question. But when trying to determine whether "relation back" is essential to make the complaint timely, we must refer to the law defining the period of limitations.

Wilson said that rules of "tolling and application" come from state law, and figuring out whether a complaint with a spelling error satisfies the state's requirements looks like a question of "application." Treating the change--from John Shullbetter to Dennis Shallbetter--as correction of a scrivener's error would be problematic if Chicago's police force had both...