Sunday, June 24, 2018

C. Statutes of Limitation

[25] As an additional argument in support of dismissal, Defendants argue that Plaintiffs' claims are time-barred by operation of various statutes of limitation. Once again, although the court has dispositively determined that Plaintiffs lack standing to bring the claims raised in their Complaint, that these claims present a non-justiciable political question, and fail to state a claim upon which relief can be granted, with an abundance of caution, the court will also determine whether statute of limitations defenses would also constitute an independent basis for dismissal.

1. Overview of Statutes of Limitation

The concept of limitations periods to the bringing of legal action has been well-established in the law for centuries. Limitations on actions can be traced back to early Roman law. See Developments in the Law: Statutes of Limitations 63 Harv. L.Rev. 1177 (1950) (citing Sohm, The Institutes of Roman Law 318–22 (Ledlie's trans., 3d ed.1907)). As part of our Anglo–American common law system of law, statutes of limitations can be traced as far back as 1189 for actions concerning property right disputes. See Thomas E. Atkinson, Some Procedural Aspects of the Statute of Limitations, 27 Colum. L.Rev. 157, 162 (1927) (chronicling the history of statutes of limitations). While the concept of statute of limitations has evolved over the centuries well beyond the realm of property law, the general principles behind them remain the same.

One principle behind statutes of limitations is the promotion of justice. In his work The Path of the Law, Oliver Wendell Holmes reflected on statutes of limitations, asking: “What is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?” Oliver W. Holmes, Jr., The Path of the Law, 10 Harv. L.Rev. 457, 476 (1897).29 To answer Holmes' question, the justification is fairness to litigants. This fairness is achieved through two goals of statutes of limitations: first, to provide the defendant notice of the plaintiff's claims; and second, to provide repose to the defendant. “Statutes of limitations ... in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses disappeared.” Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348–49, 64 S.Ct. 582, 88 L.Ed. 788 (1944). Statutes of limitations are based on “[t]he theory that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Id. at 349, 64 S.Ct. 582.

The Supreme Court has further elucidated on that point, stating that:

Statutes of limitations find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. [citation omitted] They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what is now called a ‘fundamental’ right or what used to be called a ‘natural’ right of the individual. [Plaintiffs] may, of course, have the protection of the policy while it exists, but the history of pleas of limitations shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.

Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945).

The procedural requirements established by various legislatures for gaining access to the courts are not to be disregarded out of a vague sympathy for particular litigants. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2071, 153 L.Ed.2d 106 (2002) (citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984)). “Statutes of limitations are not arbitrary obstacles to the vindication of just claims, and therefore they should not be given a grudging application.” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453 (7th Cir.1990). Statutes of limitations are regulations set by the legislature, designed to set a time period in which to file an action. “They protect important social interests in certainty, accuracy, and repose.” Id. “Though rarely the subject of sustained scholarly attention, the law concerning statute of limitations fairly bristles with subtle, intricate, and often misunderstood issues....” Wolin v. Smith Barney Inc., 83 F.3d 847, 849 (7th Cir.1996).

Two important concepts when dealing with statutes of limitation are accrual and tolling. Accrual denotes the point in time when an action can be maintained. “A cause of action ‘accrues' when a suit may be maintained thereon, and the law in this regard differs from state-to-state and by nature of action.” Deluxe Black's Law Dictionary, 6th edition at 21 (1990). The proverbial clock starts to run when the action accrues. It is not the date on which the wrong that injures the plaintiff occurs, but the date—often the same, but sometimes later—on which the plaintiff discovers that he has been injured. While discovery of the injury in some cases may be complex, in others it would be immediately obvious, as in the case of the brutal application of the lash, the turning of the screw, or the tightening of the leg chains nightly to a post. In a complement to accrual, tolling is a concept which suspends the running of a limitations period to an accrued action. The proverbial clock is stopped when the action is tolled.

2. Statutes of Limitations as Applied to Plaintiffs' Claims

Since statutes of limitations are defenses to claims, a plaintiff ordinarily need not anticipate or attempt to defuse these defenses in a complaint. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). However, “[a] litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense....” United States Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir.2003) (citation omitted); see also Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir.1998) (“Litigants may plead themselves out of court by alleging facts that establish defendants' entitlement to prevail.”); Soo Line R.R. Co. v. St. Louis S.W. Ry. Co., 125 F.3d 481, 483 (7th Cir.1997) (indicating that a “plaintiff can plead himself out of court by alleging facts which show that he has no claim, even though he was not required to allege those facts”).

The allegations of Plaintiffs' Complaint do allege the ingredients of a statute of limitations defense. Plaintiffs allege that their claims arise out of the institution of human chattel slavery as it existed in America, and admit that “[m]any of the torts set out in the instant complaint occurred prior to the formal end of chattel slavery in the United States of America,” which occurred in 1865. FACC ¶ 237. Plaintiffs also claim that these injuries are recurring as long as Defendants do not provide a proper accounting of the profits allegedly gained by them or their predecessors throughout the years from commercial activities relating to the institution of slavery.

Plaintiffs' claims fall into three groups: common law claims, state statutory claims, and federal statutory claims.30 Plaintiffs' common law claims include: Count I, conspiracy; Count II, accounting; Count V, intentional infliction of emotional distress, Count VI, conversion; and Count VII, unjust enrichment. Plaintiffs' state statutory claims, included in Counts X through XIV, allege a violation of consumer protection laws for Illinois, Louisiana, Texas, New Jersey, and New York.

In the Motion to Dismiss, Defendants point to the law of Illinois as an example to show that Plaintiffs' state common claims are time-barred by many years, and extrapolate that Plaintiffs' claims would also be time-barred under any conceivable choice of law analysis using the law of any given state. Plaintiffs fail to object to Defendants' argument, and do not argue that there is any material conflict among the various state choice of law principles that could be applied in this case. Therefore the statute of limitations for Plaintiffs' other claims are as follows:

• Conspiracy—three years. See, e.g., People v. Peebles, 120 Ill.App.3d 376, 75 Ill.Dec. 759, 457 N.E.2d 1318, 1322 (1983); 720 Ill. Comp. Stat. 5/3–4 (2003).

• Accounting—five years. See, e.g., Schlossberg v. Corrington, 80 Ill.App.3d 860, 35 Ill.Dec. 936, 400 N.E.2d 73, 76 (1980); 735 Ill. Comp. Stat. 5/13–205 (2003).

• Intentional Infliction of Emotional Distress—two years. See, e.g., Dahl v. Fed. Land Bank Ass'n. of W. Ill., 213 Ill.App.3d 867, 157 Ill.Dec. 242, 572 N.E.2d 311, 314 (1991).

• Conversion—five years. See, e.g., Bontkowski v. Smith, 305 F.3d 757, 763 (7th Cir.2002); 735 Ill. Comp. Stat. 5/13/205 (2003).

• Unjust Enrichment—five years. See, e.g., Burns Philp Food, Inc. v. Cavalea Cont'l Freight, Inc., 135 F.3d 526, 527 (7th Cir.1998); 735 Ill. Comp. Stat. 5/13–205 (2003).

• Texas Deceptive Trade Practices and Consumer Protection Act, Tex. Bus. & Com.Code Ann. § 17.41 (2002)—two years. See Tex. Bus. & Com.Code Ann. § 17.565 (2002).

• Illinois Consumer Fraud and Deceptive Business Act, 815 Ill. Comp. Stat. 505/1 (2003)—three years. See, e.g., 815 Ill. Comp. Stat. 505/10a(3) (2003); Dreisilker Elec. Motors, Inc. v. Rainbow Elec. Co., 203 Ill.App.3d 304, 150 Ill.Dec. 167, 562 N.E.2d 970, 972–3 (1990).

• New York Consumer Protection from Deceptive Acts and Practices Laws, N.Y. Gen. Bus. Law §§ 348, 350—three years. See, e.g., Soskel v. Handler, 189 Misc.2d 795, 736 N.Y.S.2d 853, 855 (N.Y.Sup.Ct.2001).

• New Jersey Unfair Trade Practice Law, N.J. Stat. Ann. § 56:8–1 (2003)—six years. See, e.g., Mirra v. Holland Am. Line, 331 N.J.Super. 86, 751 A.2d 138, 140 (2000).

• Louisiana Unfair Trade Practices and Consumer Protection Law, La Rev. Stat. Ann. § 51:1401 (2003)—one year. See La.Rev.Stat. Ann. § 51:1409(e) (2003).

[26] [27] Plaintiffs' federal statutory claims include: Count IV, piracy; and Count VIII, 42 U.S.C. § 1982. Although there is a five year statute of limitation on Plaintiff's piracy claim, see 18 U.S.C. § 3282 (2000), Plaintiffs' claim for piracy does not provide a private right of action, and need not be considered further.31 The statute of limitations for violations of 42 U.S.C. § 1982 is two years. See Honorable v. Easy Life Real Estate Sys., Inc., 182 F.R.D. 553, 563 (N.D.Ill.1998).

[28] [29] [30] Plaintiffs argue that their remaining claims: Count III, crimes against humanity, and Count IX, the Alien Torts Claims Act (“ATCA”), which is plead in the alternative, do not have statutes of limitation. As for Plaintiffs' claim for crimes against humanity, the court need not address the issue of the statute of limitations regarding it because it is presented as merely a mélange in which Plaintiffs fail to identify a claim which is actionable.32 As for the ATCA, it does not contain a statute of limitations. “Although the ATCA itself does not contain a statute of limitations, when a cause of action under federal civil law does not have a directly applicable limitations period, the Supreme Court has instructed that the court should not assume that no time limit for the cause of action was intended.” In re World War II Era Japanese Forced Labor Litig., 164 F.Supp.2d 1160, 1179 (N.D.Cal.2001) (citing DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)).

[31] Generally, in such situations, the court should apply the “most closely analogous statute of limitations under state law.” DelCostello, 462 U.S. at 152, 103 S.Ct. 2281; Reed v. United Transp. Union, 488 U.S. 319, 323–24, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989); see also Jones v. R.R. Donnelley & Sons Co., 305 F.3d 717, 723 (7th Cir.2002). However, as a narrow exception to the general rule, the court should apply the limitations period provided by an analogous federal law when it determines that either: (1) a rule from elsewhere in federal law provides a closer analogy than available state law; or (2) the application of the state limitations period “would frustrate or interfere with the implementation of national policies.” North Star Steel Co. v. Thomas, 515 U.S. 29, 34, 115 S.Ct. 1927, 132 L.Ed.2d 27 (1995) (citations and internal quotations omitted); see also Papa v. United States, 281 F.3d 1004, 1011–12 (9th Cir.2002). Some federal courts that have considered the issue have held that the Torture Victim Protection Act of 1991 (“TVPA”), which contains a limitations period of ten years, provides the most analogous statute to the ATCA. See, e.g., Deutsch, 324 F.3d at 717; Iwanowa, 67 F.Supp.2d at 462; Cabiri v. Assasie–Gyimah, 921 F.Supp. 1189, 1195–96 (S.D.N.Y.1996). Under this theory, the ATCA limitations period is also ten years. See 28 U.S.C. § 1350, note § 2(c). In this case, the court need not determine whether a state or federal law provides a more closely analogous statute to the ATCA. Plaintiffs have not provided, nor can the court find an analogous state tort statute with a limitations period longer than the ten years provided under the TVPA. Assuming that the limitations period is ten years, Plaintiffs contention that they (or their ancestors) were aliens of the United States prior to the ratification of the Fourteenth Amendment, which occurred on July 9, 1868, see FACC ¶¶ 237–39, takes their claims back over a century.

Conceding that “[m]any of the torts set out in the instant complaint occurred prior to the formal end of chattel slavery in the United States of America,” Pls.' FACC, ¶ 237, these claims would have accrued by 1865 at the latest. The longest limitations period for any of Plaintiffs' claims is ten years, which would have run well over a century prior to the filing of the instant Complaint. If cognizable claims ever existed, those claims were owned by former slaves themselves, and became time-barred when the statutes of limitations expired in the nineteenth century. As such, Plaintiffs' century-old claims are barred by the statutes of limitation in every jurisdiction.

3. Doctrines to Extend Statute of Limitations Periods

Plaintiffs attempt to avoid having their claims deemed time-barred by arguing a number of doctrines. Specifically, Plaintiffs contend that all of the respective statute of limitations should be tolled based on either the discovery rule, the continuing violation doctrine, equitable estoppel, or equitable tolling. These four principles, in one way or another, allow a plaintiff to bring a claim that on its face falls outside the statute of limitations. Both the discovery rule and the continuing violations doctrine deal with when the accrual of a claim is established. In contrast, the doctrines of equitable estoppel and equitable tolling allow a plaintiff to assert a claim after it has accrued by tolling the respective statutes of limitation. However, as the court will discuss below, these doctrines cannot revive claims already barred by the statute of limitations.

a. Discovery Rule

[32] The discovery rule postpones the beginning of a limitations period until such time as the plaintiff discovers the injury, or through reasonable diligence should have discovered the injury.See Cada, 920 F.2d at 450. The discovery rule keeps a claim from accruing until the plaintiff knows or through reasonable diligence should have known of the injury. See TRW Inc. v. Andrews, 534 U.S. 19, 27, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001).

[33] In support of their argument that the discovery rule should delay accrual of their claims, Plaintiffs argue that “[slaves] were not privy to the causes and extent of the harms they suffered.” FACC ¶ 192. Specifically, Plaintiffs argue that “in their miserable condition which was a direct result of slavery ..., although intimately familiar with their pitifully horrific condition, [they] were not aware of the nature of the investments, insurance policies, joint ventures and other schemes and conspiracies developed and utilized by these defendants ... to profit from slavery.” Pls.' Resp. to Defs.' Mot. to Dismiss, at 17.

In response, Defendants reiterate that Plaintiffs' Complaint fails to allege any act committed by any specifically named Defendant or their predecessors against any of the Plaintiffs or their ancestors. Further, Defendants argue that since the alleged injuries were known, or knowable, to Plaintiffs' ancestors over a century ago, the discovery rule is simply inapplicable in this case.

Plaintiffs are attempting to recover for injuries incurred by their ancestors over a century ago. Plaintiffs' ancestors knew or should have known that they were being brutalized and wrongfully forced to work for people, plantations, companies and industries without being compensated. If they did not know of their exact injury at the time it occurred, they certainly should have known of it after the Civil War, the passing of the Civil War Amendments, or even the Civil Rights Movement of the 1960s. Furthermore, there is evidence that other former slaves were aware of their injuries and previously have attempted to recover for them well before this action was filed. See, e.g., Johnson, 45 App.D.C. 440, (evidencing a claim for slavery reparations nearly a century ago).

[34] Plaintiffs' contentions would have the Court extend the statute of limitations indefinitely, or at least until all of the discovery Plaintiffs desire is completed. “By tying the start of the limitations period to a plaintiff's reasonable discovery of a pattern rather than to the point of injury or its reasonable discovery the [discovery] rule would extend the potential for most ... cases well beyond the time when a plaintiff's cause of action is complete.” Rotella v. Wood, 528 U.S. 549, 558, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000). The mere fact that Plaintiffs' ancestors did not know exactly how much profit was made off of their slave labor is not enough to establish the discovery rule. “The federal common law discovery rule does not permit the plaintiff to delay filing its lawsuit until all foreseeable harms arising from the injury are actually experienced, but only until the plaintiff discovers the predicate injury.” Brademas v. Indiana Housing Finance Authority, 354 F.3d 681, 686–87 (7th Cir.2004). The predicate injury in this instance was the institution of slavery itself. Plaintiffs make a veiled attempt to tie the beginning of the statute of limitations period to the discovery of the damages that flowed from slavery, rather than the predicate injury itself. Again, the discovery doctrine only extends the statute of limitations until the predicate act is discovered, not until all discovery of its consequences is completed. See Rotella, 528 U.S. at 558, 120 S.Ct. 1075. Therefore, the discovery rule, when applied in this instance, does not delay accrual of the claims alleged.

b. Continuing Violation Doctrine

[35] [36] [37] [38] The continuing violations doctrine, although slightly different from the discovery rule, allows the plaintiff to file an action when there is a continuous series of injuries stemming from the same injury. Under this doctrine, the statute of limitations is not tolled per se, but rather left open until a final injury has accrued. See Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir.2001). “The continuing violation doctrine allows a complainant to obtain relief for a time-barred act of discrimination by linking it with acts that fall within the statutory limitations period.” Filipovic v. K & R Exp. Systems, Inc., 176 F.3d 390, 396 (7th Cir.1999) (citing Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.1992)). Courts will then treat the series of acts as one continuous act ending within the limitations period. See id. The continuing violation doctrine is applicable only if it would have been unreasonable to expect the plaintiff to sue before the statute ran on the conduct. See id.; see also Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir.1996).

As a preliminary matter, Plaintiffs assert that the continuing violation doctrine should be applied solely to their cause of action for an accounting. See Pls' Resp. to Defs.' Joint Mot. to Dismiss, at 22. Plaintiffs assert that they are continually hurt because they have not received an accounting of the monies owed to them and their ancestors for work they did while enslaved, and that Defendants continue to profit from the revenue they earned from the labor of Plaintiffs' ancestors. In support of their argument that the discovery rule should delay accrual of their claims, Plaintiffs argue that Defendants' failure to provide a proper accounting of the profits allegedly gained by them or their predecessors throughout the years from commercial activities relating to the institution of slavery constitute a continuing violation. In response, Defendants argue that Plaintiffs do not allege a continuing violation; rather, they are alleging a single event with purported continuing injuries.

With respect to this claim, the underlying injury concerns the denial of payments for the forced labor of Plaintiffs' ancestors. All of the other ills and consequences that flowed from this injury, no matter how dreadful, do not constitute new or continuing claims. They are merely the alleged effects of an injury that occurred over a century ago, and not a continuing series of acts. See Diliberti v. United States, 817 F.2d 1259, 1264 (7th Cir.1987) (citing Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981) (“A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.”); Oppenheim v. Campbell, 571 F.2d 660, 662 (D.C.Cir.1978) (plaintiff's claim accrues when he is “first harmed”)).

Plaintiffs also assert that Defendants' present day failure to produce an accounting of whether they profited from the slave trade constitutes a new and continuing violation. Again, Plaintiffs' assertions are incorrect. Plaintiffs' assertions are merely a veiled attempt to circumvent the statute of limitations for their underlying claims. Plaintiffs have not alleged any new unlawful conduct by Defendants; but have merely alleged a continuing adverse consequence of prior unlawful conduct. See Diliberti, 817 F.2d at 1264. Therefore, the continuing violation doctrine, when applied in this instance, does not delay accrual of the claims alleged.

c. Equitable Estoppel

[39] [40] [41] Equitable estoppel allows a plaintiff to bring a cause of action after the statute of limitations has expired when the “ ‘defendant takes active steps to prevent the plaintiff from suing on time.’ ” Brademas, 354 F.3d at 686–87 (quoting Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir.2001)). The defendant can prevent the plaintiff from filing their claim on time either by telling them that they will not assert the statute of limitations as a defense or by fraudulently concealing the injury after the fact. See Holmberg v. Armbrecht, 327 U.S. 392, 396–97, 66 S.Ct. 582, 90 L.Ed. 743 (1946); Brademas, 354 F.3d at 686–87 (citing Sharp, 236 F.3d at 372). “The ‘granting of equitable estoppel should be premised on a defendant's improper conduct as well as a plaintiff's actual and reasonable reliance thereon.’ ” Hentosh v. Herman M. Finch Univ. of Health Sciences/Chicago Medical School, 167 F.3d 1170, 1174 (1999) (quoting Wheeldon v. Monon Corp., 946 F.2d 533, 537 (7th Cir.1991)).

Plaintiffs do not assert, nor is there any indication that Plaintiffs failed to file their claims within the appropriate time limitations because Defendants promised not to plead the statute of limitations as a defense. Rather, Plaintiffs assert that they did not properly file their claims within the appropriate time frame because of Defendants' unwillingness to divulge information about their ties to slavery, and that Defendants actively mislead them—i.e., fraudulent concealment. See FACC ¶ 198; Pls.' Resp. to Defs.' Mot. to Dismiss, at 23. Specifically, Plaintiffs assert that:

(1) defendants withheld documents and information related to their illegal profits from slavery and/or lied about their participation in slavery; (2) the fact that the defendants benefitted from concealing the information and that the concealment was so complete, provides a sufficient basis to conclude that they were aware of the concealment; (3) plaintiffs did not know of the defendants conduct or illegal profits and therefore could not have known of the concealment and/or misrepresentation; (4) defendants in concealing the information knew that this concealment would protect them from accountability for their actions; (5) plaintiffs lack of knowledge was reasonable and in good faith given the nature of defendants' conduct and plaintiffs' conditions; and (6) clearly justice would not be served by allowing the defendants to benefit from their concealing behavior as measured against the extreme harm suffered by plaintiffs and their ancestors.

Pls.' Resp. to Defs.' Mot. to Dismiss, at 22. In response, Defendants argue that Plaintiffs fail to plead, let alone particularize, the required elements of equitable estoppel.

Plaintiffs have not asserted any facts alleging that any Defendant concealed information in a way that would have prevented Plaintiffs' ancestors from asserting their claims within the proscribed statute of limitations period. Plaintiffs do not allege that Defendants concealed the injury. In fact, the injury was not concealed, but rather quite obvious when inflicted. Plaintiffs merely make vague generalizations about Defendants and their perceived practices. Plaintiffs vague assertions are not enough to satisfy the requirements for equitable estoppel. See Hentosh, 167 F.3d at 1174; see also Williamson v. Indiana Univ., 345 F.3d 459, 463 (7th Cir.2003) (denying equitable tolling based on plaintiff's failure to present any evidence that defendant took active steps to prevent her from bringing her charge within the allotted time). Therefore, equitable estoppel, when applied in this instance, does not toll the statute of limitations.

d. Equitable Tolling

[42] [43] “Equitable tolling applies when a plaintiff, despite due diligence, is unable to obtain enough information to conclude that there is a basis for a claim.” Brademas, 354 F.3d at 686–87 (citing Sharp, 236 F.3d at 373). As distinguished from equitable estoppel, equitable tolling “permits a plaintiff to sue after the statute of limitations has expired if through no fault or lack of diligence on his part he was unable to sue before, even though the defendant took no active steps to prevent him from suing.” Singletary v. Continental Ill. Nat'l. Bank & Trust Co., 9 F.3d 1236, 1241 (7th Cir.1993) (citing Heck v. Humphrey, 997 F.2d 355, 357 (7th Cir.1993)); see also Cada, 920 F.2d at 451 (indicating that equitable tolling does not require a finding of any conduct on the part of the defendant). “Equitable tolling is frequently confused with both fraudulent concealment [equitable estoppel] on the one hand and with the discovery rule—governing, as we have seen, accrual—on the other hand.” Cada, 920 F.2d at 451.

[44] Equitable tolling “halts the running of the limitations period so long as the plaintiff uses reasonable care and diligence in attempting to learn the facts that would disclose the defendant's fraud or other misconduct.” 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedures § 1056, at 239 (3d. ed.2002); see also Cada, 920 F.2d at 451. When dealing with equitable tolling between two innocent parties, “the negligence of the party invoking the doctrine can tip the balance against its application....” Jackson v. Rockford Housing Auth., 213 F.3d 389, 397 (7th Cir.2000) (quoting Cada, 920 F.2d at 453). A plaintiff invoking equitable tolling to suspend the statute of limitations must bring suit within a reasonable time after he has obtained, or by due diligence could have obtained, the necessary information.

Plaintiffs assert that in this instance the only relevant question as to equitable tolling is “whether the circumstances preventing the plaintiffs from gaining equal access to the justice system over the past decades are sufficiently extraordinary to justify application of the equitable tolling doctrine.” Pls' Resp. to Defs.' Mot. to Dismiss, at 19. Plaintiffs base this assertion on the fact that they were only recently able to obtain the necessary information to assert their claims, as a result of the “uniquely catastrophic historical context from which their class is still seeking to advance and from which the defendants are still profiting.” Id. at 20.

It is true that because of the institution of slavery, the Jim Crow laws, and the lingering bigotries and separatist views following the Civil War, African–Americans were obstructed from obtaining necessary information on their claims and in some instances access to the legal system. Nevertheless, Plaintiffs' ancestors knew of their injury at the time that it occurred. They knew, or should have known that they were wrongfully being forced to work without compensation, and that somebody was making a profit from their labor. Yet, neither Plaintiffs nor their ancestors ever asserted these claims in a court of law until now. Plaintiffs have not shown that they acted with all due diligence in attempting to obtain vital information about their claims, and assert them timely.

Plaintiffs' contentions fly in the face of numerous well-settled legal principles and history. African–Americans, as well as various other ethnic groups, have previously brought claims seeking reparations in one form or another, against both public and private entities. See Johnson, 45 App.D.C. 440; see also Deutsch, 317 F.3d at 1028–29 (affirming dismissal of slave labor claims against private corporations as, inter alia, time-barred), amended by 324 F.3d 692; Wolf, 95 F.3d at 544 (dismissing claims against private defendant on standing grounds); Kelberine, 363 F.2d at 992 (dismissing on justiciability and statute of limitations grounds reparations claims for World War II era slave labor against private company); In re Nazi Era Cases Against German Defendants Litig., 129 F.Supp.2d at 389 (dismissing slave and forced labor claims as nonjusticiable); Iwanowa, 67 F.Supp.2d at 424; Burger–Fischer, 65 F.Supp.2d at 248. Plaintiffs merely make vague assertions and generalizations as to their claims and the state of the legal system. Plaintiffs' vague assertions and generalizations are not enough to toll the statute of limitations on their claims. Plaintiffs' Complaint is nothing more than an attempt to by-pass the various statutes of limitation by chronicling the social inequities and injustices that have befallen African–Americans as a result of slavery. But the statutes of limitations “are not to be disregarded by courts out of a vague sympathy for particular litigants.” Morgan, 122 S.Ct. at 2071. Therefore, the doctrine of equitable tolling does not apply in this instance.

4. Conclusion

Plaintiffs' attempt to bring claims over a century old are barred by the statute of limitations. Plaintiffs have failed to assert any factual or legal basis for allowing them to proceed with their cause of action in light of when their claims accrued or with due diligence found that they would have accrued. Plaintiffs' attempt to avoid this legal reality by pleading vague factual generalities and chronicling the social and economic injustices that have befallen African Americans due to slavery. However, statutes of limitation serve to promote justice for litigants, see Donaldson, 325 U.S. at 314, 65 S.Ct. 1137, which cannot be disregarded out of vague sympathy for Plaintiffs and their claims. See Morgan, 122 S.Ct. at 2071. Therefore, the court finds that Plaintiffs' claims are barred by the statute of limitations.

 

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