Lee v. Cook County
| Decision Date | 22 March 2011 |
| Docket Number | 10-2042,No. 10-2013,10-3026,10-2013 |
| Parties | Reason Lee, James Washington, and Michael Moore, Plaintiffs-Appellants, v. Cook County, Illinois, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 09 C 2992, 3281 & 3282—Virginia M. Kendall and
Amy J. St. Eve, Judges.
Before EASTERBROOK, Chief Judge, and CUDAHY and Posner, Circuit Judges.
EASTERBROOK, Chief Judge. Plaintiffs, three employees of the Cook Country prison system, contend that their employer discriminates against black workers when making promotions. Together with nine other employees, they filed a suit under Title VII of the CivilRights Act of 1964. District Judge Castillo thought that the 12 plaintiffs' contentions were too disparate to justify joint litigation. He dismissed the complaint without prejudice and told the plaintiffs that they had 40 days to file individual suits.
That order was entered on September 18, 2008, and the time specified in Judge Castillo's order expired in late October. Reason Lee, James Washington, and Michael Moore did not file their individual complaints until May 14, 2009 (Moore), or May 29, 2009 (Lee and Washington). Moore's suit was assigned to Judge Kendall; the other two were assigned to Judge St. Eve. Both judges dismissed the complaints as untimely. The EEoC issued right-to-sue letters in March 2008, and recipients have 90 days to commence litigation. 42 U.S.C. §2000e-5(f)(1). The original multi-plaintiff action, filed on May 14, 2008, was timely. But by September it was too late to file another. Perhaps defendants would have refrained from protest had plaintiffs filed new actions within the time Judge Castillo specified. But plaintiffs did not; indeed, they took substantially more than 90 days following the order of September 18, 2008. Thus even if the time was deemed tolled while the original suit was on file, the new suits are barred by the statute of limitations. So Judges Kendall and St. Eve concluded when dismissing these suits.
This litigation has gone off the rails because of multiple errors. The failure of Michael J. Greco, representing these three plaintiffs, to act promptly after Judge Castillo's order, is only one problem. It is a fatal one, aswe explain below, but Judge Castillo should not have presented Greco with the opportunity to bungle his clients' cases away. There was nothing wrong with the original complaint. Multiple plaintiffs are free to join their claims in a single suit when "any question of law or fact common to all plaintiffs will arise in the action." Fed. R. Civ. P. 20(a)(1)(B) (emphasis added). The common question need not predominate; that's a requirement for class actions, not for permissive joinder. Whether the Cook County prison system discriminates against black employees when making promotions is a question common to all plaintiffs' claims.
If other issues predominate over the common question, the district judge is entitled to sever the suit or order separate trials. Fed. R. Civ. P. 20(b), 21. When a federal civil action is severed, it is not dismissed. Instead, the clerk of court creates multiple docket numbers for the action already on file, and the severed claims proceed as if suits had been filed separately. Rule 21 adds: "Mis-joinder of parties is not a ground for dismissing an action." Judge Castillo's order dismissing the original suit and directing Greco to file new actions violated Rule 21.
There's a reason why Rule 21 reads as it does: When a federal civil action is dismissed without prejudice, the statute of limitations runs continuously. It is not reset by the filing and dismissal as it is in some states (including Illinois), which allow litigants a period to re-file after a dismissal. In federal practice, by contrast, when a suit is dismissed, Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000) (citations omitted). See also Dupuy v. McEwen, 495 F.3d 807, 810 (7th Cir. 2007); Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 923 (7th Cir. 2003); Newell v. Hanks, 283 F.3d 827, 834 (7th Cir. 2002). Thus on the very date that Judge Castillo dismissed the original suit, nominally without prejudice, it was already too late for plaintiffs to file individual suits.
They should have appealed immediately. Although a dismissal without prejudice nominally is not final, and thus can't be appealed, when the decision effectively precludes re-filing—as it did here—it is treated as final and appealable. Schering-Plough Healthcare Products, Inc. v. Schwartz Pharma, Inc., 586 F.3d 500, 507 (7th Cir. 2009). An appeal would have produced a remand with instructions to reinstate the suit in compliance with Rules 20(b) and 21. But Greco did not appeal, the time to do so has long passed, and the fact that an un-appealed order dismissing a suit may have been erroneous does not extend the time to file a replacement suit.
Greco does not contend in this court that his suits are timely under §2000e-5(f)(1). Instead he argues that Judge Castillo extended the statute of limitations by granting extra time to file replacement actions. He does not contend that these orders were valid, and theyweren't. District judges lack authority to extend statutory periods of limitations. A district judge can't say something like: "The statute gives a plaintiff 90 days to sue, but this is too short, so I am extending the time to 14 months." A statute of limitations confers rights on putative defendants; judges cannot deprive those persons of entitlements under a statute. If a judge can't extend the period of limitations directly, why should orders adding time to re-file a dismissed action be effective?
Perhaps Greco is invoking the idea that a filing with a federal judge may be deemed timely "where a party has performed an act which, if properly done, would [meet] the deadline... and has received specific assurance by a judicial officer that this act has been properly done." Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989). Judge Castillo did not specifically assure Greco that filing new complaints by May 2009 would be "properly done," and thus induce Greco to wait. To the contrary, Judge Castillo set several earlier deadlines, which Greco missed. The timeline is a bit more complex than we have given it, but Greco concedes that he missed the initial deadline set by the district court. By May 2009 the window had long closed; Greco had taken almost five times the statutory limit of 90 days.
It does not help to invoke the doctrine of equitable tolling. A litigant is entitled to equitable tolling if "heshows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 130 S. Ct. 2549, 2562 (2010), quoting from Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Greco did not pursue his clients' rights diligently—after the suit was dismissed in September 2008, effective re-filing took almost three times the 90 days allowed for an initial filing—nor was dismissal without prejudice an "extraordinary circumstance" that undermined his clients' rights. Nothing prevented plaintiffs from appealing Judge Castillo's order dismissing the initial suit, or from filing new suits within the 40 days he set for that task. Greco has never said why he did not meet that deadline. A lawyer's ineptitude does not support equitable tolling. Lawrence v. Florida, 549 U.S. 327, 336 (2007). The remedy is not continued litigation against defendants, who are entitled to stand on their right to dismissal when the plaintiff does not file a timely suit; the remedy is a malpractice action against the lawyer whose negligence is responsible for the problem. See,...
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