00-4196 Mitchell v. Donchin, et al.

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“Rappaport told Mitchell that other people had made the decision to terminate the funding for Oasis Graphics Arts and that he thought that Felner was the motivating force behind the decision. Additionally, Rappaport told Mitchell that he strongly opposed terminating the funding for Oasis Graphic Arts. In Singletary v. Continental Illinois National Bank and Trust Company of Chicago, 9 F.3d 1236, 1241 (7th Cir. 1993), we explained that although the bank, the defendant in the case, knew that a particular loan was phony, the fact that the bank continued to assert that the loan was valid did not equitably estop the bank to plead the statute of limitations. In Singletary, the bank’s actions constituted ‘a mere denial of liability.’ Id. Similarly, we find that Rappaport’s statements to Mitchell constitute a mere denial of liability because Rappaport merely said that other people were behind the decision to terminate the funding and that he opposed the termination. As we have repeatedly explained, if we permitted denials of liability to be recast as active steps preventing plaintiffs from suing in time, ‘[a] statute of limitations would not begin to run until a defendant acknowledged liability, an entirely strange concept.’ Bishop v. Gainer, 272 F.3d 1009, 1014-15 (7th Cir. 2001). Therefore, Rappaport’s statements do not equitably estop him to plead the statute of limitations.

“Equitable tolling is inapplicable in this case because Mitchell should have been aware of the possibility of a claim against Donchin and Rappaport when he filed his original complaint. This is because Mitchell knew that Rappaport was his immediate supervisor and that Donchin was Rappaport’s supervisor. Thus, Mitchell knew what the chain of command was with respect to Oasis Graphics Arts and that any decision regarding the program would involve Donchin and Rappaport. Moreover, with no excuse for delay, Mitchell waited over four years, until November 1998, to depose Rappaport and then waited an additional nine months before filing this lawsuit against Donchin and Rappaport. Given Mitchell’s lack of effort in pursuing this claim, we simply cannot find that Mitchell acted with due diligence.”

Affirmed.

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Kanne, J.