Anderson v. Catholic Bishop of Chi.

759 F.3d 645

Charles ANDERSON, Individually and on Behalf of a Class of All Similarly Situated Persons, Plaintiff–Appellant,

v.CATHOLIC BISHOP OF CHICAGO, Defendant–Appellee.

No. 13–1803.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 14, 2013.

Decided July 2, 2014.

Jeffrey Antonelli, James L. Glass, Jr., Chicago, IL, for Plaintiff–Appellant.

James C. Geoly, Susan M. Horner, Burke, Warren, Mackay & Serritella, P.C., Chicago, IL, for Defendant–Appellee.

Before WOOD, Chief Judge, and CUDAHY and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Charles Anderson brought an action against the Holy See and the Catholic Bishop of Chicago (the “Catholic Bishop”), alleging that he was sexually abused by priests and other employees of the Catholic Church in the 1950s and 1960s. The district court granted a motion to dismiss the complaint with prejudice as to the Catholic Bishop, and, because the Holy See had not been successfully served in the case, dismissed without prejudice the claims against the Holy See until valid service was obtained. Anderson now appeals the dismissal of his complaint, as well as the district court's refusal to allow amendment of the complaint following that dismissal or to grant the Rule 59(e) and Rule 60(b) motions.

Anderson alleged in his complaint numerous instances of abuse, including abuse by Rev. Father Cosmo at St. Joseph's Orphanage in Lisle, IL in the 1950s, abuse by a Catholic priest (since laicized), Thomas Windham, at Maryville Academy on or around 1960, and abuse by four other lay employees of Maryville Academy in separate incidents. Anderson alleged that as a result of the abuse, he required continuous psychological counseling and spent most of his adult life in penal institutions; at the time of the complaint, Anderson was an inmate at Shawnee Correctional Center in Vienna, Illinois.

The complaint explicitly acknowledged, however, that the “alleged sex abuse occurred a sufficient number of years in the past such that any legal sex abuse claim based on said abuse would or could be barred by the applicable Illinois statute of limitations and/or statute of repose.” Complaint ¶ 1. That contention is borne out by the facts alleged in the complaint. Anderson was born in 1951, and alleges injuries arising from abuse that occurred on or about 1960. Under Illinois law, “the limitations period governing a claim is determined by the nature of the's injury rather than the nature of the facts from which the claim arises.” Doe A. v. Diocese of Dallas, 234 Ill.2d 393, 334 Ill.Dec. 649, 917 N.E.2d 475, 487 (2009). Under a statute effective July 1, 1991, Illinois established a statute of repose for actions based on childhood sexual abuse which required that all such claims be brought within 2 years of the date that the victim discovers, or by reasonable diligence should have discovered, that the abuse occurred and caused that injury, “but in no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the date on which the person abused attains the age of 18 years.” 735 ILCS § 5/13–202.2(b) (1992). That statute thus mandated that any claims for personal injury based on childhood sexual abuse had to be brought by the plaintiff's thirtieth birthday, and as a statute of repose it operated to bar actions regardless of whether the plaintiff had discovered the injury. Orlak v. Loyola Univ. Health System, 228 Ill.2d 1, 319 Ill.Dec. 319, 885 N.E.2d 999, 1003 (2007); Michigan Indiana Condominium Ass'n v. Michigan Place, LLC, 380 Ill.Dec. 704, 8 N.E.3d 1246, 1256–57 (Ill.App. 1 Dist.2014).

That statute of repose was repealed effective January 1, 1994, but the repeal does not avoid the impact of the statute of repose as to Anderson because his claims were extinguished prior to the repeal. In M.E.H. v. L.H., 177 Ill.2d 207, 226 Ill.Dec. 232, 685 N.E.2d 335, 339 (1997), the Illinois Supreme Court addressed an analogous case in which the persons alleging childhood sexual abuse had turned 30 long before the 1991 statute of repose and whose claims therefore were extinguished by that statute before it was repealed in 1994. The M.E.H. court noted that for over a hundred years it had held that once a limitations period has expired, a defendant has a vested right in asserting the bar of that limitations period as a defense to a cause of action, and that the right cannot be taken away without offending the due process protections of the Illinois Constitution. Id. The court further held that the rule applies equally to statutes of repose, and that claims time-barred under the old law therefore remained time-barred even after the repose period was abolished in the subsequent legislative action. Id.; Doe A., 334 Ill.Dec. 649, 917 N.E.2d at 484. Accordingly, under the Illinois statute of repose applicable to Anderson's claims, his claims were barred once he reached the age of 30 or—because he turned 30 in 1981 before the statute of repose became effective—his claims were time-barred if he failed to assert them within a reasonable time period after that effective date. See M.E.H., 226 Ill.Dec. 232, 685 N.E.2d at 340–41. He does not, and cannot, argue that an action brought in 2011, 20 years after that effective date, met that reasonable time standard. See generally id. (noting that in any case it would defeat the purpose to allow a period greater than the repose period itself of 12 years, but that reasonableness should not be defined by that statutory repose period and finding the nearly 4 year delay not reasonable). Therefore, on its face, the complaint establishes the affirmative defense that his claim is barred by the statute of repose.

Anderson attempts to avoid the clear impact of that statute of repose by alleging in his complaint that by its statements and actions the defendants were precluded under principles of estoppel and waiver from asserting the statute of repose. The district court ultimately rejected that argument, but before considering Anderson's challenge to the district court's granting of that motion to dismiss, we must first consider whether we have appellate jurisdiction. Although the claims against the Catholic Bishop were dismissed with prejudice based on that statute of repose, the claims against the Holy See were dismissed without prejudice based upon the failure of Anderson to obtain proper service on the Holy See. Normally, that sort of split opinion would not be considered “final” and therefore appealable under 28 U.S.C. § 1291 because it does not wind up the entire litigation in the district court and therefore presents the prospect of piecemeal appeals. Palka v. City of Chicago, 662 F.3d 428, 433 (7th Cir.2011). In some circumstances, however, dismissals without prejudice are immediately appealable, thus resolving that finality concern.

Our opinions have used varying language in assessing the appealability of dismissals without prejudice, from stating that such dismissals are “canonically non-final” to characterizing such dismissals as appealable unless the defect requiring dismissal is immediately curable. See Doss v. Clearwater Title Co., 551 F.3d 634, 639 (7th Cir.2008) and cases cited therein (canonically non-final) and Schering–Plough Healthcare Products, Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 507 (7th Cir.2009) (“only if the defect that required dismissal is immediately curable is the dismissal nonappealable”). The difference in language may be more in emphasis than in effect, but the cases agree that dismissals without prejudice are not appealable where the reason for the dismissal is an easily fixable problem because in such a case the district court anticipates that the defect will be corrected and the case is not finished. See Schering–Plough, 586 F.3d at 506–07. Even if that defect is correctable, however, the dismissal will be appealable if the otherwise revivable claim cannot be refiled because the statute of limitations has run. Palka, 662 F.3d at 433; Doss, 551 F.3d at 639; Cardenas v. City of Chicago, 646 F.3d 1001, 1008 (7th Cir.2011). In such a case, the bar of the limitations period effectively terminates the litigation as surely as a dismissal with prejudice, and therefore the dismissal is appealable regardless of its characterization. Id. Here, the claim against the Holy See is identical to that against the Catholic Bishop, and in fact Anderson alleges that the Catholic Bishop acted as an agent of the Holy See. Those claims thus are also filed beyond the statute of repose and that problem cannot be redressed by refiling and properly obtaining service. Accordingly, the dismissal without prejudice of the claim against the Holy See does not prevent us from asserting appellate jurisdiction over the claim on appeal that was dismissed with prejudice, because the claims are all immediately appealable.

We turn then to the merits of the appeal. Anderson alleges that the district court erred in granting the motion to dismiss the complaint. Anderson acknowledges that on its face his claims in the complaint would appear to be time-barred. He asserts, however, that the limitations period does not operate to preclude his action because the defendants engaged in actions that tolled it or prevented them from relying on it. Essentially, Anderson relies on numerous alternative legal theories to establish that the defendants, by their conduct, disclaimed reliance on the statute of repose. He asserts that such conduct raises issues of waiver, promissory estoppel, judicial estoppel, and estoppel by conduct, which present mixed questions of law and fact and cannot be resolved in a motion to dismiss.

Anderson does not present any legal support whatsoever for that contention. He cites only to cases such as Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), which discuss that a complaint must meet the plausibility standard and must contain facts sufficient to raise a...