Mabry v. Village of Glenwood
41 N.E.3d 508
Ill. App. Ct.2015Background
- On April 16, 2007 Mabry and Cooper (Mabry‑Cooper) filed a proposed class action against the Village of Glenwood and others alleging April 16, 2006 sewer backups and property damage; the complaint named a putative class but Mabry‑Cooper never moved to certify the class during discovery.
- Defendants other than Glenwood were voluntarily dismissed; claims against Glenwood proceeded and various motions and amended pleadings followed; discovery was conducted and the court set a schedule for a certification motion.
- On March 1, 2013 the court granted leave to file another amended complaint "naming all plaintiffs." On March 28, 2013 Mabry‑Cooper filed a second amended complaint that withdrew class allegations and added 32 individual intervening plaintiffs.
- Glenwood moved to dismiss the intervenors’ claims under the Tort Immunity Act’s one‑year limitations provision (745 ILCS 10/8‑101(a)), arguing the causes accrued April 16, 2006 and the intervenors’ claims were therefore time‑barred.
- The circuit court dismissed the intervening plaintiffs’ claims as untimely, finding the class action tolling rule did not apply because the proposed class was never certified and the named plaintiffs had not moved for certification "as soon as practicable." Intervenors appealed.
- The appellate court reversed, holding the class‑action tolling doctrine tolled the limitations period from the timely filing of the proposed class complaint until the date the class allegations were abandoned, and therefore the intervenors’ claims were timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether intervenors’ claims were time‑barred under the Tort Immunity Act | Class filing tolled statute of limitations; intervenors added immediately when class allegations were dropped, so claims are timely | Tolling does not apply because named plaintiffs failed to move for class certification "as soon as practicable" and were not sufficiently diligent | The appellate court held class‑action tolling applied; intervenors’ claims were timely |
| Whether equitable tolling or relation‑back preserved intervenors’ claims | Intervenors argued alternate tolling/relation‑back doctrines | Glenwood argued neither doctrine applies and claims accrued April 16, 2006 | Appellate court found these arguments forfeited (not raised below) and, on the merits, inapplicable |
| Whether failure to obtain class certification defeats tolling | Intervenors: tolling protects putative class members until certification is denied or class allegations are abandoned | Glenwood: lack of certification and delay in seeking certification defeats tolling; due diligence required | Court: tolling remains effective until class certification is denied or class allegations are abandoned; failure to obtain certification does not nullify tolling here |
| Whether a requirement of "due diligence" to move for certification limits tolling | Intervenors: no such Illinois requirement; moving for certification may be postponed for discovery | Glenwood: named plaintiffs must move promptly; otherwise tolling should not apply | Court: no Illinois authority requires such a diligence rule for tolling; imposing one would frustrate class action policy and create arbitrary deadlines |
Key Cases Cited
- American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) (commencement of a class action tolls the statute of limitations for putative class members)
- Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983) (tolling continues until class certification denied and allows class members to file individual suits or intervene)
- Steinberg v. Chicago Medical School, 69 Ill. 2d 320 (1977) (Illinois recognizes American Pipe tolling where class action was filed)
- Munsterman v. Ill. Agricultural Auditing Ass'n, 106 Ill. App. 3d 237 (1982) (tolling lasts until named plaintiffs abandon class allegations and proceed individually)
- Hess v. I.R.E. Real Estate Income Fund, Ltd., 255 Ill. App. 3d 790 (1993) (tolling may be limited where lack of standing is obvious on the face of the complaint)
- Portwood v. Ford Motor Co., 183 Ill. 2d 459 (1998) (rejected cross‑jurisdictional tolling from federal to state court to avoid forum‑shopping)