Wednesday, August 22, 2018

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C. Statutes of Limitations

As an additional argument in support of dismissal, Defendants argue that Plaintiffs' claims are time-barred by operation of various statutes of limitations. 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 statutes of limitations defenses would also constitute an independent basis for dismissal.

 

1. Overview of Statutes of Limitations

The concept of limitations periods to the bringing of legal actions 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 statutes of limitations has evolved over the centuries well beyond the realm of property law, the general principles behind this concept 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).33 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 have 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 *771 over the right to prosecute them.” Id. at 349, 64 S.Ct. 582. In addition, the Supreme Court has explained 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 Sec. 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).

A plaintiff may not base [the] suit on conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in the light of events that occurred later, within the period of the statute of limitations.

National R.R. Passenger Corp., 536 U.S. at 117, 122 S.Ct. 2061 (quoting Galloway v. General Motors Service Parts Operations, 78 F.3d 1164 (7th Cir.1996)).

Two important concepts frequently addressed by litigants when dealing with statutes of limitations 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 *772 of the lash, the turning of the screw, or the tightening of the leg chains nightly to a post. As 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

[21] 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”).

[22] The allegations of Plaintiffs' Complaint do admit 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 acknowledge that this institution ended in 1865. SCAC, ¶ 5. Plaintiffs, however, 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. See, e.g., id. ¶ 58, 3(a) (demanding that Defendants “provide a full accounting of their actions, including, but not limited to, turning over all documents in their possession related in any way to the slave trade and slavery”).

Plaintiffs' claims fall into three groups: common law claims, state statutory claims, and federal statutory claims.34 Plaintiffs' common law claims include: Count I: Conspiracy, Count II: Conversion, Count III: Unjust Enrichment, Count IV: Replevin, Count V: Intentional Infliction of Emotional Distress, and Count VI: Negligent Infliction of Emotional Distress. Plaintiffs sole federal statutory claim is Count IV: 42 U.S.C. § 1982.35 Plaintiffs' state statutory claims, included in Counts VII through XIII, allege violations of consumer protection laws in New York, Texas, California, Illinois, Louisiana, and New Jersey.

Defendants point to the law of Illinois as an example to show that Plaintiffs' state common law claims are time-barred by many years, and extrapolate that all of Plaintiffs' claims would also be time-barred under any conceivable choice of law analysis using the law of any given state, or federal law. Mem. in Supp. of Defs.' Mot. to Dismiss II, at 1, 4. Plaintiffs fail to object to Defendants' argument, and do *773 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 statutes of limitations for Plaintiffs' claims are as follows:

• Civil Conspiracy—five years. See e.g., Wilson v. Giesen, 956 F.2d 738, 740–41 (7th Cir.1992).

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

• 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.

• Replevin—five years. See, e.g., Hitt v. Stephens, 285 Ill.App.3d 713, 221 Ill.Dec. 368, 675 N.E.2d 275, 277 (Ill.App.Ct.1996); 735 Ill. Comp. Stat.. 5/13–205.

• 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 (Ill.App.Ct.1991); 735 Ill. Comp. Stat.. 5/13–202.

• Negligent Infliction of Emotional Distress—two years. See 735 Ill. Comp. Stat.. 5/13–202.

• 42 U.S.C. § 1982—two years. See, e.g., Honorable v. The Easy Life Real Estate Sys., Inc., 182 F.R.D. 553, 563 (N.D.Ill.1998).

• 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); N.Y. C.P.L.R. § 214.

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

• California Business and Professions Code § 17200 et seq.—four years. Cal. Bus. & Prof Code § 17208.

• Illinois Consumer Fraud and Deceptive Business Act, 815 Ill. Comp. Stat. 505/1—three years. See, e.g., Dreisilker Elec. Motors, Inc. v. Rainbow Elec. Co., 203 Ill.App.3d 304, 150 Ill.Dec. 167, 562 N.E.2d 970, 972–73 (Ill.App.Ct.1990); 815 Ill. Comp. Stat.. 505/10a(e).

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

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

Given that the institution of chattel slavery in the United States ended in 1865, Plaintiffs' century-old claims would have accrued by 1865 at the latest. The longest limitations period for any of Plaintiffs' century-old claims is five 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 limitations in every jurisdiction.

Plaintiffs, however, also allege that Defendants are currently making intentional misrepresentations regarding Defendants' past involvement in the institution of slavery, and that these misrepresentations presently violate various state consumer laws. The court finds, however, that Plaintiffs have not alleged that any concrete, material misrepresentations were made to any specific Plaintiffs within the various statutory periods. Plaintiffs' allegations *774 of continuing misrepresentations by Defendants include the following. “Two years ago, Aetna expressed regret for ‘any involvement’ it ‘may have’ had in insuring slaves. Today it stands by that statement and says it has been able to find only seven policies insuring 18 slaves.” SCAC, ¶ 230. “While abhorring slavery, Richmond, Virginia-based CSX offered an online statement that noted the lawsuit filed against it and ‘other corporations demanding financial reparations is wholly without merit and should be dismissed.’ ” Id. ¶ 233. “J.P. Morgan spokesman Thomas Johnson said that the ‘allegations are without merit’ and that the company's archives don't support the claims in the litigation.” Id. ¶ 236. “CN's Chicago-based spokesperson, Jack Burke, denies up and down that the company, or any of its predecessors, profited from slave labor.” Id. ¶ 239. “A FleetBoston spokesman said it appears there is no connection to Brown's bank, though FleetBoston doesn't have records that date back 200 years.” Id. ¶ 243. “R.J. Reynolds spokeswoman Maura Payne said the allegations are ‘completely without merit’ because the company was founded in 1876, a decade after slavery was abolished.” Id. ¶ 245.

In essence, Plaintiffs allege that Defendants have made intentional misrepresentations about their involvement with slavery for many years, and that Defendants continue to do so today. However, the specific statements alleged in Plaintiffs' Complaint, as listed in paragraphs 227–256, reveal no more than that Defendants have made generalized denials of the merits of Plaintiffs' lawsuit. Plaintiffs point to no concrete instances of material misrepresentations that have been made by Defendants within any of the statutory periods prescribed under the state consumer law counts. See Harley–Davidson Motor Co. v. Powersports, Inc., 319 F.3d 973, 989 (7th Cir.2003) (a misrepresentation occurs where a party makes an assertion “that does not accord with facts as they exist”); Neder v. United States, 527 U.S. 1, 22, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (a statement is material if a reasonable individual would believe it to be important in “determining [a] choice of action....”). Plaintiffs, in fact, fail to allege that Defendants have engaged in any actionable fraudulent or deceptive business practice under the respective state statutes within the respective statutory time frames. See infra IV.B. Plaintiffs' state law consumer claims are therefore barred by the above cited statutes of limitation.36

3. Doctrines to Extend Statutes 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 statutes of limitations should be categorically tolled based on several undeveloped theories, including either the discovery rule, the continuing violation doctrine, equitable estoppel, or equitable tolling. Mem. in Opp. to Defs.' Mot to Dismiss I, 16–24; Mem. in Opp. to Defs.' Mot. to Dismiss II., 1, 5–8. These four principles, in one way or another, allow a plaintiff to bring a claim that on its face falls outside a 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 *775 and equitable tolling allow a plaintiff to assert a claim after it has accrued by tolling the respective statutes of limitations. However, as the court will discuss below, these doctrines cannot revive claims already barred by a statute of limitations.

a. Discovery Rule

[23] 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 thus 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).

[24] In support of their argument that the discovery rule should delay accrual of their claims, Plaintiffs argue that “[slaves] were not privy to every legal harm they suffered, nor the causes and extent of those harms.” SCAC, ¶ 44. 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.” Mem. in Opp. to Defs.' Mot. to Dismiss I, at 17; Mem. in Opp. to Defs.' Mot. to Dismiss II, at 1.

In response, Defendants assert that Plaintiffs' Complaint fails to allege any act committed by any specifically named Defendant or their predecessors which was intended to conceal any cause of action from any Plaintiffs or their ancestors. Mem. in Supp. of Defs.' Mot. to Dismiss II, at 5. 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. Mem. in Supp. of Defs.' Mot. to Dismiss I, at 23–24.

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 v. McAdoo, 45 App. D.C. 440 (1916) (evidencing a claim for slavery reparations nearly a century ago).

Plaintiffs would have the Court extend the applicable statutes 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 from their slave labor is not enough to establish that the discovery rule should apply in this case. “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.” *776 Brademas v. Indiana Housing Finance Authority, 354 F.3d 681, 687 (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 statutes of limitations periods to the discovery of the damages that flowed from slavery, rather than the predicate injury itself. Again, the discovery doctrine only extends the statutes 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

[25] [26] 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 statutes of limitations are 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 plaintiff must show a ‘continuing violation,’ which the Seventh Circuit has described as a ‘continuous series of events giving rise to a cumulative injury.’ ” Hoagland v. Town of Clear Lake, Ind., 344 F.Supp.2d 1150, 1162 (N.D.Ind.2004) (quoting Heard, 253 F.3d at 320). “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. “Unlike tolling principles, this doctrine is not equitable in nature; rather, it is ‘best described as a doctrine governing the accrual of a claim.’ ” Macklin v. United States, 300 F.3d 814, 824 (7th Cir.2002) (quoting Pitts v. City of Kankakee, 267 F.3d 592, 595 (7th Cir.2001)). 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). “In other words, a plaintiff who feels discriminated against by a discrete act, but fails to timely file charges on that act, cannot later reach back to those events when the statute of limitations expires in order to form a continuing violation claim.” Tinner v. United Ins. Co. of Amer., 308 F.3d 697, 708 (7th Cir.2002).

[27] As a preliminary matter, Plaintiffs assert that the continuing violation doctrine should be applied to their demand for an accounting. See Mem. in Opp. to Defs.' Mot. to Dismiss II., at 7–8. 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 continuing violations doctrine 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 constitutes 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. Mem. in Supp. of Defs.' Mot. to Dismiss I, at 25; Mem. in Supp. of Defs.' Mot. to Dismiss II, at 1.

With respect to this assertion, the underlying injury concerns the denial of payments for the forced labor of Plaintiffs' *777 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) (without any continuing unlawful actions by defendant, plaintiff's claim accrued when he was “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. Mem. in Opp. to Def.'s Mot. to Dismiss II, at 7–8. Again, Plaintiffs' assertions are incorrect. Plaintiffs' assertions are merely a veiled attempt to circumvent the statutes 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 the accrual of the claims alleged.

c. Equitable Estoppel

[28] [29] Equitable estoppel allows a plaintiff to bring a cause of action after a 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)); see Lucas v. Chicago Transit Auth., 367 F.3d 714, 722 (7th Cir.2004). For example, a defendant can prevent a plaintiff from filing his or her claim on time either by informing the plaintiff that the defendant 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 Sci./The Chicago Medical School, 167 F.3d 1170, 1174 (7th Cir.1999) (quoting Wheeldon v. Monon Corp., 946 F.2d 533, 537 (7th Cir.1991)).

[30] 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 statutes 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 misled them; in other words, Plaintiffs allege that Defendants fraudulently concealed their involvement with slavery.See SCAC, ¶ 227; Mem. in Opp. to Defs.' Mot. to Dismiss I, at 22–23. 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 misrepresentations; (4) defendants in *778 concealing the information knew that this concealment would protect them from accountability for their actions; (5) plaintiffs' lack of information 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.

Mem. in Opp. to Defs.' Mot. to Dismiss I, at 23. In response, Defendants assert 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 statutes of limitations periods. 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 estoppel 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 statutes of limitations. See Martin v. Consultants & Adm'rs, Inc., 966 F.2d 1078, 1095 (7th Cir.1992) (fraudulent concealment requires some sort of trick or contrivance by a defendant).

d. Equitable Tolling

[31] “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.

[32] [33] 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 *779 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.” Mem. in Opp. to Defs.' Mot. to Dismiss I, 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. See Marbury, 5 U.S. at 163 (“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury”).

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. at 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 a 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 statutes of limitations on their claims. Plaintiffs' Complaint is nothing more than an attempt to by-pass the various statutes of limitations by chronicling the social inequities and injustices that have befallen African–Americans as a result of slavery. The statutes of limitations, however, “are not to be disregarded by courts out of a vague sympathy for particular litigants.” Morgan, 122 S.Ct. at 2071. The doctrine of equitable tolling therefore does not apply in this instance.

4. Conclusion

Plaintiffs' attempt to bring claims over a century old are barred by the applicable statutes 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 when, with due diligence, Plaintiffs 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 limitations serve to promote justice for litigants, see *780 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 applicable statutes of limitations.

 

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