A. All of Plaintiffs' Claims Are Barred by the Statutes of Limitations.

Plaintiffs' Amended Complaint fails for the additional, independent reason that all of the claims are time-barred. These claims - which are at a minimum decades, and in most cases centuries, old - are barred by statutes of limitations in every jurisdiction. See, e.g., Am. Compl. „ 9 (millions enslaved from 1619 to 1865); id. „ 89 (C. Doe alleges he was “enslaved through the 1960's”). Under Illinois law, for example, all state common law claims are barred by the statutes of limitations:

^ Intentional Infliction of Emotional Distress - two years. See, e.g, Dahl v. Fed. Land Bank Ass'n of W. Ill., 572 N.E.2d 311, 314 (Ill. App. Ct. 1991).

^ Conspiracy - three years. See, e.g., People v. Peebles, 457 N.E.2d 1318, 1322 (Ill. App. Ct. 1983); 720 Ill. Comp. Stat. 5/3-5 (2003).

^ Accounting - five years. See, e.g., Schlossberg v. Corrington, 400 N.E.2d 73 (Ill. App. Ct. 1980); 735 Ill. Comp. Stat. 5/13-205 (2003).

^ Conversion - five years. See, e.g., Bontkowski v. Smith, 305 F.3d 757 (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 (7th Cir. 1998); 735 Ill. Comp. Stat. 5/13-205 (2003).

Plaintiffs' state statutory claims also are time-barred:

^ Texas Deceptive Trade Practices and Consumer Protection Act, Tex. Bus. & Com. Code Ann. § 17.41 (Vernon 2002) - two years. SeeTex. Bus. & Com. Code Ann. § 17.565 (Vernon 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., 562 N.E.2d 970 (11. App. Ct. 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, 736 N.Y.S. 2d 853 (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, 751 A.2d 138 (N.J. Super. Ct. App. Div. 2000).

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

^ California Unfair Competition Act, Cal. Bus. & Prof. Code § 17200 - four years. SeeCal. Bus. & Prof. Code § 17208; Snapp & Assocs. Ins. Servs., Inc. v. Malcolm Bruce Burlingame Robertson, 96 Cal. App. 4th 884, 891 (Cal. Ct. App. 2002) (statute of limitations begins to run on 17200 claim “irrespective of whether plaintiff knew of its accrual”) (quotation omitted).

Plaintiffs' federal claims also are barred by the statutes of limitations:

^ Piracy - five years. 18 U.S.C. § 3282 (2000).

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

^ Alien Tort Statute - at most, ten years. See, e.g., Deutsch, 317 F.3d at 1005;Iwanowa, 67 F. Supp. 2d at 462.

Finally, plaintiffs' international law claim of “crimes against humanity” also is time-barred. Plaintiffs contend, erroneously, that there is no statute of limitations for such a claim, citing the Rome Statute of the International Criminal Court (“ICC”) (“The Rome Statute”), 17 July 1998, and Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968, in support. See Am. Compl. [ 190 & n.85. In fact, the federal courts consistently have applied statutes of limitations to civil claims for crimes against humanity. See, e.g, Papa v. United States, 281 F.3d 1004, 1012 (9th Cir. 2002) (claims under the ATS); Tel-Oren v. Libyan Arab Republic, 517 F. Supp. 542, 550-51 (D.D.C. 1981) (claims under the ATS and for “assault, battery, false imprisonment, intentional infliction of emotional distress and/or intentional infliction of cruel, inhuman and degrading treatment”) (quotation omitted), aff'd on other grounds,726 F.2d 774 (D.C. Cir. 1984); Doe v. Islamic Salvation Front, 257 F. Supp. 2d 115, 117-19 (D.D.C. 2003) (claims for “crimes against humanity, war crimes, and other violations of international law and domestic law”). The longest limitations period any court has applied to such a claim is ten years under the Torture Victim Protection Act of 1991, 28 U.S.C. § 1350, note § 2(c) (2000). See Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1195-96 (S.D.N.Y. 1996); Xuncax v. Gramaio, 886 F. Supp. 162, 192-93 (D. Mass. 1995).

Plaintiffs' reliance on the Rome Statute for an exception is misplaced. First, the United States has not ratified this treaty. Second, Article 29 of the Rome Statute states that “[t]he crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.” Thus, for nations that have ratified it, Article 29 only supersedes the statute of limitations applicable to “crimes within the jurisdiction of the Court.” This civil action obviously is not within the criminal jurisdiction of the ICC. Third, for those nations that have ratified it, the ICC has jurisdiction only over crimes “committed after the entry into force of this Statute,” - i.e., July 17, 1998. See Rome Statute, art. 11. The Amended Complaint alleges only events that occurred long before July 17, 1998.

Nor does the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968 (the “Convention”), save plaintiffs' claims. First, the United States is not a signatory to the Convention. Second, the Convention applies only to the “prosecution and punishment of the crimes referred to in articles I and II...,” Convention, art. IV (emphasis added), not to civil claims. See Handel v. Artukovic, 601 F. Supp. 1421, 1431 (C.D. Cal. 1985). Thus, these international criminal treaties do not save plaintiffs' claims, which have been barred for many decades by the statutes of limitations.

Consequently, it is not surprising that numerous other complaints seeking slavery reparations were dismissed on statutes of limitations grounds. See, e.g., Cato v. United States, No. C94-01228CW, 1994 U.S. Dist. LEXIS 7908 (N.D. Cal. June 7, 1994) (slavery reparations complaint time-barred), aff'd on alternative grounds,70 F.3d 1103, 1107-08 n.6 (9th Cir. 1995); see also Bey, No. 02-705, report and rec., adopted, No. 02-705, mem. order; supra pp. 2-3 n.2 (citing numerous cases). Statutes of limitations also resulted in the dismissal of comparatively recent reparations claims stemming from World War II. The claims at bar should likewise be dismissed.


B. Equitable Tolling, the Discovery Rule, and the Continuing Violation Doctrine Do Not Revive Plaintiffs' Claims.

Acknowledging that their claims are well beyond any limitations period, plaintiffs attempt to plead equitable tolling, the discovery rule, and the continuing violation doctrine. See Am. Compl. „„ 189-204. These doctrines cannot revive plaintiffs' claims. Plaintiffs do not seek recovery for any act committed by any defendant against any plaintiff. They seek to impose successor liability on defendants for unpled wrongful acts by often unnamed predecessors against unidentified slaves many decades before most of the named plaintiffs were born. If cognizable pre-emancipation claims ever existed, they were owned by the former slaves themselves and became barred when the statutes of limitations expired in the nineteenth century. Post-emancipation claims also lapsed decades ago.

None of the doctrines cited in the Amended Complaint can revive claims already barred by statutes of limitations. They can only suspend the running of limitations periods before claims are barred. See, e.g., Andrews v. Heinold Commodities. Inc., 771 F.2d 184, 186 (7th Cir. 1985).

Here, plaintiffs make a number of conclusory allegations based on events that occurred long after the statutes of limitations had already barred their claims. For example, plaintiffs allege that they were “unable to secure records with regards to their ancestors” and, thus, unable to acquire an accounting from defendants. Am. Compl. „ 200. Whether plaintiffs, born long after these claims were barred, could secure certain records or acquire an accounting is irrelevant to any tolling doctrine. Similarly, plaintiffs refer to unsuccessful efforts to raise reparations issues in Congress, but allege that these efforts date back only 11 years. See id. „ 195. None of these events could revive lapsed pre-emancipation claims. And because these events have no connection to the newly-pled claims of post-emancipation unlawful enslavement by unidentified persons, they cannot avoid the bar of those claims either. Accordingly, neither the equitable tolling doctrine, nor the discovery rule, nor the continuing violation doctrine can revive plaintiffs' barred claims.


1. The equitable tolling doctrine does not revive plaintiffs' claims.

Equitable tolling occurs only if (1) “the defendant has actively misled the plaintiff,” (2) “the plaintiff has been prevented from asserting his or her rights in some extraordinary way,” or (3) “the plaintiff has mistakenly asserted his or her rights in the wrong forum.” Clay v. Kuhl, 727 N.E.2d 217, 223 (Ill. 2000) (citing Ciers v. O.L. Schmidt Barge Lines, Inc., 675 N.E.2d 210 (Ill. App. Ct. 1996)). Equitable tolling must be applied with caution. See Ciers, 675 N.E. 2d at 214;see also United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (“Federal courts invoke the doctrine of equitable tolling “only sparingly.' ”). Conclusory assertions will not suffice. “To avoid dismissal, a complaint asserting equitable tolling must contain particularized allegations that the defendant “actively misled' plaintiff.” Iwanowa, 67 F. Supp. 2d at 467 (emphases added). And a plaintiff alleging equitable tolling through selfconcealing conduct must have acted with due diligence. See, e.g., Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996).

Plaintiffs fail to plead, let alone particularize, the required elements of equitable tolling. For example, they do not allege that any defendant misled any plaintiff or any of their ancestors in any way prior to the running of the statute of limitations. Nor do they allege that they or their ancestors timely asserted their rights in the wrong forum. They merely assert in conclusory fashion that unspecified persons prevented plaintiffs and their ancestors from asserting claims for unrelated reasons.

For example, plaintiffs claim that “shipping manifests,” “human cargo lists,” and other documents were unavailable and that family names were changed over time. See Am. Compl. „ 200. But they do not explain how this caused their ancestors to delay seeking redress in court.

Plaintiffs also complain of the inaccessibility of corporate histories and records. Id. „ 202. However, the difficulty in reconstructing relevant records more than a century after the events in issue is a fundamental reason for statutes of limitations, not a justification for ignoring them. See Freeman v. New Jersey, 788 A.2d 867 (N.J. Super. Ct. App. Div. 2002) (rejecting equitable tolling argument); accord Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945) (statutes of limitations 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”); see also Heck v. Humphrey, 997 F.2d 355, 357 (7th Cir. 1993) (policy of statute of limitations is to bar stale suits), aff'd,512 U.S. 477 (1994).

Finally, plaintiffs allege that defendants' conduct was self-concealing because “there [was] no reason for the slaves to know or be aware that their lives were insured; that financing deals controlled their lives; or that profits far a field from their miserable existence occurred.” Am. Comp. 1 198. But plaintiffs' complaint does not contain any “particularized allegations that the defendant[s] actively misled” plaintiffs prior to the running of the statute of limitations. Iwanowa, 67 F. Supp. 2d at 467 (emphases added). Accordingly, equitable tolling did not halt the running of the statutes of limitations on plaintiffs' claims.


2. The discovery rule does not revive plaintiffs' claims.

Nor does the discovery rule revive plaintiffs' claims. Under the federal discovery rule, “a claim accrues once the party performs the alleged unlawful act and once the party bringing a claim discovers an injury resulting from this unlawful act.” Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1139 (7th Cir. 1992); see also United States v. Duke, 229 F.3d 627, 630 (7th Cir. 2000); Sellars v. Perry, 80 F. 3d 243, 245-46 (7th Cir. 1996). The same rule applies under Illinois law. See Kumpfer v. Shiley, Inc., 741 F. Supp. 738, 739 (N.D. Ill. 1990). While the date on which a plaintiff has or should have the knowledge necessary to trigger the limitations period often is a question of fact, the question may be answered as a matter of law if, as here, the answer is clear from the pleadings. See, e.g., Horn v. A.O. Smith Corp., 50 F.3d 1365, 1370 (7th Cir. 1995) (“Despite the fact-specific nature of this inquiry, the point at which a cause of action accrues may be determined as a matter of law if the relevant facts are undisputed and they lead to but one conclusion”).

Plaintiffs try to evade the statutes of limitations by alleging that slaves “were not privy to the causes and extent of the harms they suffered,” that slaves were “in large part uneducated, unsophisticated, and ... in extremely difficult circumstances,” and that “[t]o impute to these individuals ... what amounts to an omniscient knowledge of their rights, the violations they suffered, those that were the cause of and those that illegally profited from those violations is an incredible fiction.” Am. Compl. „„ 192-193. But the discovery rule does not require them to possess such knowledge. Plaintiffs' ancestors discovered their immediate (not latent) injury at the time that they were enslaved. Thus, the discovery rule did not delay the accrual of plaintiffs' claims.


3. The continuing violation doctrine does not revive plaintiffs' claims.

Plaintiffs also allege that the “continuing violation” doctrine tolls the statutes of limitations. See Am. Compl. „ 204. But the continuing violation doctrine governs accrual, not tolling. See Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001). It does not save a claim arising from “a single event giv [ing] rise to continuing injuries.” Id. “A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Diliberti v. United States, 817 F.2d 1259, 1263 (7th Cir. 1987) (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1989)).

Plaintiffs claim that defendants' alleged “failure to provide an accounting to the plaintiffs constitutes a continuing violation that tolls” the statutes of limitation. Am. Compl. „„ 204. This alleges a single event with purported continuing injuries, not a “continuing violation.” If, in fact, any plaintiff ever asked any defendant to provide an accounting, and putting aside whether any plaintiff actually had a claim to an accounting, that plaintiff could have sued that defendant the first time the defendant refused to provide an accounting. Indeed, under plaintiffs' theory, any unredressed claim would constitute a “continuing” violation, such that the statute of limitations would be meaningless.

Plaintiffs also fail to allege any date on which the purported duty to provide an accounting arose. (In fact, defendants have no such duty. See infra § IV.B.1.) A gap in time between alleged acts (here, the alleged enslavement and the alleged failure to provide an accounting) is sufficient to dissociate the acts, meaning that there is no “continuing violation.” See Garrison v. Burke, 165 F.3d 565, 569-70 (7th Cir. 1999) (two years between acts); Selan v. Kiley, 969 F.2d 560, 566 (7th Cir. 1992) (same). Thus, the continuing violation doctrine does not revive plaintiffs' claims.