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01-4270 Clark v. City of Braidwood

By: dmc-admin//February 10, 2003//

01-4270 Clark v. City of Braidwood

By: dmc-admin//February 10, 2003//

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“Clark could have spared everyone this appeal if he had just alleged a specific date of discovery in his reply to the motion to dismiss or in his motion to reconsider. Then, if the City still wanted to plead the statute of limitations, it would have moved for summary judgment, and the issue would have come to us with a more complete factual record. But at this stage, the question is only whether there is any set of facts that if proven would establish a defense to the statute of limitations, Early v. Bankers Life and Casualty Co., 959 F.2d 75, 80 (7th Cir. 1992), and that possibility exists. Clark’s motion to reconsider, though not exactly artful, made reasonably clear that he was trying to allege that he did not learn of his injury until some point outside of the limitations period, perhaps because, as he clarifies on appeal, he did not try to develop the land before then. If Clark can prove his allegation and also show that a reasonable person would not have discovered the injury earlier, he would have a defense to the time bar. Dismissal under Rule 12(b)(6) was therefore premature. See Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002) (vacating Rule 12(b)(6) dismissal where plaintiff alleged (seemingly for the first time on appeal) that he did not have all the information required to bring suit within limitations period); Early, 959 F.2d at 80 (finding dismissal premature where plaintiff could prove a set of facts that would show that the untimeliness of his suit was due to wrongful acts of defendant).”

Vacated and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Conlon, J., Flaum, J.

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