Opinion
No. 02 C 4816
October 29, 2002
MEMORANDUM OPINION AND ORDER
Plaintiffs bring this 16-count complaint against various defendants alleging negligence, breach of warranty, and product liability. Defendants Illinois Central Railroad Company (Illinois Central) and National Railroad Passenger Corporation (Amtrak) now move to dismiss plaintiffs' negligence claims in counts I and II. For the following reasons, defendants' motion is granted.
This lawsuit arises from injuries sustained by Shadia Slaieh, a minor, in a train derailment that occurred on March 15, 1999, in Bourbonnais, Illinois. Her parents filed this suit on her behalf in the United States District Court for the Southern District of Mississippi on March 14, 2002. The Mississippi court found that venue did not properly lie in Mississippi and transferred the suit here, finding that a substantial part of the events giving rise to plaintiffs' claims arose in the Northern District of Illinois. (Case #02 C 256 Opinion and Order, May 29, 2002 (S.D.Miss.)). Illinois Central and Amtrak move to dismiss the negligence claims against them for failing to meet Illinois' statute of limitations for personal injury claims.
Since this case was transferred to us for improper venue, we apply the choice-of-law rules of the transferee court.Koutsoubos v. Casanave, 816 F. Supp. 472, (N.D.Ill 1993). Under Illinois choice-of-law rules, courts apply their own forum state's statutes of limitations. ABF Capital Corp. v. McLauchlan, 167 F. Supp.2d 1011, 1014 (N.D.Ill. 2001). Under Illinois law plaintiffs had two years after the cause of action accrued in which to file the negligence claims. 735 ILCS 5/13-202. They did not file within the time allotted.
Plaintiffs ask that if we find the filing untimely, we excuse the untimeliness by applying equitable tolling. Equitable tolling is appropriate if defendants actively misled plaintiffs, if they had been prevented from asserting their rights, or if they timely asserted their rights mistakenly in the wrong forum. Noakes v. National Railroad Passenger Corp., 312 Ill. App.3d 965, 968, 729 N.E.2d 59, 62 (1st Dist. 2000). The last situation is not present — plaintiffs did not timely assert their rights in the Mississippi court. In support of a finding that plaintiffs had been misled or prevented from asserting their rights, they submit a letter sent by their attorney to defendants, dated June 21, 1999, that references correspondence between the parties regarding the train accident. Plaintiffs assert that the letter shows that they were engaged in good faith negotiations and that defendants had notice that a suit could follow. But alleged settlement negotiations early in the limitations period and notice of a possible lawsuit do not excuse plaintiffs from filing within the statute of limitations,Phelan v. Keiser, 312 Ill. App.3d 573, 727 N.E.2d 390 (5th Dist. 2000), Plaintiffs offer no evidence that they have been misled or prevented "in an extraordinary way" from asserting their rights, and equitable tolling is therefore not appropriate. Noakes, 312 Ill. App.3d at 968, 729 N.E.2d at 62.
In the alternative, plaintiffs request that their claims be dismissed without prejudice so that they can bring them under a different statute. They cite 735 ILCS 5/13-211, which provides that a person who was a minor at the time of an accident can bring a suit within two years after they reach the age of eighteen. Plaintiffs allege that Shadia Slaieh was born October 14, 1981. Inasmuch as she turned eighteen on October 14, 1999, her claims would have been timely only if they were brought by October 14, 2001. This suit was commenced five months after that deadline.
For the above reasons, defendants' motion is granted and counts I and II are dismissed.