2011 IL App (2d) 101257
No. 2-10-1257
Opinion filed December 7, 2011
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
DIANE BORCHERS,
) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant,
)
)
v.
) No. 09-L-445
)
FRANCISCAN TERTIARY PROVINCE OF )
THE SACRED HEART, INC., d/b/a
)
Mayslake Village, Inc.; MICHAEL A.
)
FRIGO; and KATHERINE MAXWELL,
) Honorable
) Paul Noland,
Defendants-Appellees.
) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Hudson concurred in the judgment and opinion.
OPINION
¶1
After the plaintiff, Diane Borchers, found out that her former employer, the defendant
Franciscan Tertiary Province of the Sacred Heart, Inc., d/b/a Mayslake Village, Inc. (Mayslake), had
accessed her personal e-mail account and printed out over 30 personal e-mails, she brought suit
against Mayslake, alleging violations of title II of the federal Electronic Communications Privacy
Act of 1986 (the Stored Communications Act) (18 U.S.C. § 2701 et seq. (2006)) and the tort of
intrusion upon seclusion. Later she added as individual defendants two employees of Mayslake: her
former boss, Michael Frigo, and his administrative assistant, Katherine Maxwell. Mayslake filed
2011 IL App (2d) 101257
a motion for summary judgment and the trial court granted it, finding that the plaintiff had not
produced sufficient evidence that the defendants acted intentionally. The trial court also granted the
individual defendants’ motion to dismiss the complaint as to them on the grounds that they were not
named as defendants until after the statute of limitations had run, and the cause of action as to them
did not “relate back” to the filing of the original complaint. The plaintiff appealed. We affirm in
part and reverse in part, and remand for further proceedings.
¶2
¶3
BACKGROUND
The following facts are drawn from deposition testimony and other evidence the parties
submitted in connection with Mayslake’s motion for summary judgment. Mayslake is a not-forprofit corporation that operates Mayslake Village, a facility providing housing to low- and moderateincome senior citizens. The plaintiff began working for Mayslake about 1994, serving as the
facility’s food service director. In that capacity she planned menus, ordered food, took inventory,
served, cleaned, hired and trained the food service staff, and supervised the dining room service and
special events. Her office, which had a computer, was in a separate room in the kitchen area. As
part of her job, she placed orders for food via the Internet, and occasionally responded to e-mails
from vendors or other employees via e-mail. Mayslake issued the plaintiff a Compuserve e-mail
account to use for work.
¶4
In 1999, Mayslake issued a written policy regarding the use of its computers. The policy
repeatedly stated throughout that it applied to information that was “entered, created, received, stored
or transmitted via MAYSLAKE technology resources.” Nothing in the policy stated that it extended
to any other information. Pertinent sections of the policy read as follows:
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“1. Other Than Occasional Personal Use, MAYSLAKE Technology Resources May
Be Used Only For Legitimate, Business-Related Reasons
Other than occasional personal use, MAYSLAKE technology resources may be used
only for legitimate business-related reasons. Occasional personal use means minimal and
infrequent use that does not interfere with MAYSLAKE business or the availability of
technology resources. All use of MAYSLAKE technology resources (including personal use)
is subject to this Policy.
MAYSLAKE technology resources may not be used to conduct personal business of
any kind. *** All information that is entered, created, received, stored or transmitted via
MAYSLAKE technology resources, including all e-mail messages, are and will remain
MAYSLAKE property. ***
2. No Expectation of Privacy
Users should have no expectation of privacy in connection with the entry, creation,
transmission, receipt, or storage of information via MAYSLAKE technology resources.
Users waive any right to privacy in information entered, created, received, stored or
transmitted via MAYSLAKE technology resources, and consent to access and disclosure of
such information by authorized MAYSLAKE personnel.
As with all other MAYSLAKE property, MAYSLAKE technology resources and all
information entered, created, transmitted, received or stored via MAYSLAKE technology
resources is subject to inspection, search and disclosure without advance notice by persons
designated or acting at the direction of the Administrator, or as may be required by law or
as necessary to ensure the efficient and proper administration and operation of
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MAYSLAKE’s technology resources. For example, authorized persons may inspect, search
and disclose such information to investigate theft, disclosure of confidential business or
proprietary information, personal abuse of the system, or to monitor work flow or
productivity. *** Because MAYSLAKE is sensitive to employee concerns, it will make
every effort to ensure that all such inspections are conducted professionally and ethically.
Users, however, must recognize that authorized persons have the ability to track and monitor
all information sent internally and externally to MAYSLAKE via technology resources.”
(Emphasis in original.)
¶5
In April 2004, Mayslake decided to switch from its dial-up Internet service with Compuserve
to a high-speed service with Comcast. During the transition, the plaintiff downloaded AOL onto her
work computer and used her personal AOL account to handle work-related e-mails. Prior to this,
she had never accessed her personal AOL account from her work computer. Mayslake issued the
plaintiff a Comcast e-mail address on May 19, 2004. Thereafter, she used only the Comcast account
for work-related e-mails. Although an icon for AOL remained on her computer desktop screen, she
testified that she did not access her personal AOL account while at work after that, except possibly
for one occasion in January 2007.
¶6
The plaintiff’s supervisor in 2007 was Michael Frigo, who was a vice president of Mayslake.
Frigo reported to the board of directors. Father Larry Dreffein was the president of that board.
Maxwell was Frigo’s administrative assistant.
¶7
In January 2007, the plaintiff reported to Mayslake personnel that Frigo had engaged in
sexual harassment. In February 2007, the plaintiff contacted the Equal Employment Opportunity
Commission about the sexual harassment and spoke with a lawyer. Mayslake conducted an internal
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investigation and told the plaintiff that it had concluded that there was no evidence of sexual
harassment. The plaintiff testified that her working relationship with Frigo was good until she filed
the sexual harassment claim, but it deteriorated after that.
¶8
Friday, March 16, 2007, was the last day that the plaintiff performed her regular duties for
Mayslake. At the end of that day, she went home and did not return to her job thereafter. At various
points in time, she advised Mayslake employees that she was taking sick leave due to mental health
problems and she submitted doctor’s notes. In April 2007, the plaintiff began receiving short-term
disability, and in July 2007 she began receiving long-term disability. In June 2007 Mayslake hired
someone else to fill the position of food service director. Also in June 2007, the plaintiff’s charge
of sexual harassment was officially filed.
¶9
At some point between April 11 and April 30, 2007,1 Maxwell went to the computer located
in the plaintiff’s office, clicked on the AOL icon, and accessed the plaintiff’s personal e-mail
account. She read part or all of various e-mails that the plaintiff had sent to or received from friends,
family members, and others since the plaintiff’s last day of work, and printed out more than 30 of
1
One of the e-mail printouts displays the date “4/13/07” on a line of type near the bottom of
the page in a manner suggesting that the e-mail was printed on that date (and thus probably accessed
on that date). However, a similar line of type on the remaining printouts is cut off so that it is only
partially visible or not visible at all, and there is no other evidence of the exact date on which the emails were accessed. The latest date on any of the e-mails’ captions is April 11, 2007. Taking as
true Maxwell’s testimony that she accessed the plaintiff’s account only once, we conclude that she
must have done so on or after April 11.
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them. According to the deposition testimony of Frigo and Maxwell, this occurred in the following
manner.
¶ 10
A few weeks after the plaintiff left work, Frigo received reports from the plaintiff’s assistant
in the kitchen, Brenda Gordon, who was running the food service in the plaintiff’s absence, that she
was overwhelmed. Gordon asked that someone check the plaintiff’s voicemail and e-mail to make
sure that orders and previously booked special events did not fall through the cracks. Frigo told
Gordon that he would have someone take care of it. Frigo then asked Maxwell to go to the
plaintiff’s office and check her regular mail, her voicemail, and her e-mail. Frigo did not tell
Maxwell that she should limit her search to work-related items, but he assumed that she would.
¶ 11
Maxwell went to the plaintiff’s office. In checking the plaintiff’s e-mail, she hit “start” on
the computer, clicked on the Internet Explorer icon, and saw a screen that had an icon for AOL as
well as one for Comcast. She testified that she clicked on the AOL icon, thinking that it was a workrelated account (the evidence relating to this is explored further below). Clicking on the icon
accessed the account without any preliminary login or password being required. Maxwell saw an
in-box for the account: a screen that listed the e-mails that had been received and that showed, for
each e-mail, the date the e-mail was received, the sender, and a subject line. The dates listed for the
e-mails were after the plaintiff had left work. Many of the senders were unknown to Maxwell, but
a few were other Mayslake employees.
¶ 12
Maxwell initially testified that, in the AOL account in-box, she opened and read only those
e-mails that she thought related to Mayslake’s food service because they were from a food service
employee or the subject line appeared to be related to food service. However, she later explained
that she also read part or all of the e-mails that had no subject line, or that were to or from people
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2011 IL App (2d) 101257
she did not know, in case they related to a private party or catering. Including both the AOL and the
Comcast accounts, she read part or all of about 80% of all the e-mails she saw, ignoring only those
that clearly pertained to food industry events that were already past. There were no e-mails that she
did not open because she could tell from the subject line that they were personal. Maxwell initially
stated that if she determined that an e-mail was not related to food service, she deleted or closed it.
If it was related to food service, she printed the e-mail and gave it to Frigo. Later, however, she
testified that she printed the e-mails from the plaintiff’s AOL account because “they were
awful”—they contained “awful language” or were “vile” and “not professional.” Maxwell admitted
that most of the e-mails she printed had been sent by the plaintiff to other people, and thus would
not have been in the in-box of the plaintiff’s AOL account. When asked if she looked at parts of the
plaintiff’s AOL account besides the in-box, she could not recall. She gave the printed e-mails to
Frigo because “[h]e needed to see them.” Maxwell agreed that the plaintiff had not authorized her
to view the e-mails. She also agreed that the 36 e-mail printouts from the plaintiff’s AOL account
shown to her at her deposition were the e-mails she printed out. Although she also checked the
plaintiff’s Comcast account on the food service computer and saw “boatloads” of e-mails there, the
36 e-mails from the AOL account were the only e-mails that she printed out. In its answers to
interrogatories, Mayslake confirmed that there were no printouts of any e-mails from the food service
computer other than these 36.
¶ 13
Maxwell testified that, at the time she accessed the plaintiff’s AOL account on the food
service computer, she believed that some Mayslake employees, including those in food service, had
work-related AOL accounts. She believed this because, sometime in the past, she had been told this
by a Mayslake employee who worked in the development office. However, as of the date of her
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deposition, she had never used an AOL e-mail address to e-mail anyone at Mayslake regarding work.
Also, when asked what e-mail account she was aware that the plaintiff was using for work-related
purposes at that time, Maxwell replied, “Comcast.” Frigo and Dreffein also testified that they
believed that some Mayslake employees had AOL accounts. However, at her deposition, Maxwell
reviewed e-mails that she had sent out in February 2007 to Mayslake employees and confirmed that
all of the e-mail addresses were at Comcast, and none were at AOL. In discovery, Mayslake was
unable to produce any documents showing that anyone at Mayslake other than a single employee in
the development office ever had a work-related AOL account.
¶ 14
Frigo testified that, later on the same day that he asked Maxwell to check the plaintiff’s e-
mail and voicemail, Maxwell brought him printouts of e-mails from the plaintiff’s AOL account.
He looked at a few of them and realized that they were “very personal” and “had nothing to do with
Mayslake business.” He did not know how to handle the situation, so he called Mayslake’s attorney,
Ronald Lipinski of Seyfarth Shaw. He later gave the printouts to Dreffein. Dreffein testified that
he put the printouts in an envelope without looking at them and carried them to Lipinski in Chicago.
While Dreffein was at Seyfarth Shaw’s offices, he met with Lipinski and Joan Gale, the Seyfarth
Shaw attorney who was representing Mayslake in connection with the plaintiff’s sexual harassment
claim.
¶ 15
On April 30, 2007, Lipinski sent a letter to the plaintiff’s attorney. The letter stated that the
enclosed printouts of e-mails, which included what appeared to be a communication between the
plaintiff and her lawyer, had been obtained by “Mayslake personnel” who “accessed e-mails through
the computer located in the kitchen office at Mayslake Village” pursuant to Mayslake’s “computer
usage policy.” The letter stated that no copies of the e-mail to the plaintiff’s lawyer had been
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retained. In addition, “other e-mails were copied by Mayslake personnel,” and copies of those emails were also enclosed. Although a superficial reading of the letter might leave the reader with
the impression that Mayslake and its lawyers had given all the copies of the e-mails to the plaintiff’s
attorney and had not retained any, a closer reading shows that Lipinski made that claim only with
reference to the e-mail from the plaintiff to her attorney, and not about the remaining e-mails. Gale
was copied on the letter.
¶ 16
Printouts of 36 e-mails were attached to Lipinski’s April 30, 2007, letter to the plaintiff’s
attorney. Each appeared to be a printout of the e-mail itself, with a heading listing the sender(s), the
recipient(s), the subject, and the date and time sent, followed by the body of the e-mail. The great
majority of the e-mails were from the plaintiff to someone else; only three were e-mails sent to the
plaintiff. The topic most frequently mentioned was the plaintiff’s feelings of anxiety, stress, despair,
betrayal, anger, and depression relating to the circumstances of her departure from Mayslake. The
e-mails also focused on the plaintiff’s health, including a sinus infection diagnosed on her last day
at work and the physical effects of her anxiety and depression, and mentioned visits to her doctor and
therapist. About 10 of the e-mails expressed spiteful feelings toward the defendants, particularly
Frigo and Dreffein, with reference to their treatment of her and their difficulties staffing the dining
room after the plaintiff left. One-quarter of the e-mails discussed the plaintiff’s intention not to
return to work and instead to take her sick leave and then seek disability benefits, so that she could
maintain some income and insurance benefits as long as possible. The plaintiff justified this plan
by saying that if she returned to work she could be fired at any time, that she did not feel she had any
other options, and that this way she could “heal on my own time, but they pay for it.” The plaintiff
also discussed what happened at work that made her decide to leave, including the reaction to her
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sexual harassment claim and being forced to fire one of her workers, and her need to start a new life
and some of the things she might do, including exercising, taking dance lessons, and painting her
house. Three of the e-mails contained foul language relating to Frigo, Dreffein, and a private
investigator the plaintiff believed had been photographing her one day. As noted, one of the e-mails
was a communication from the plaintiff to her attorney.
¶ 17
Many of the e-mails also mentioned personal matters that were unconnected to Mayslake,
such as family news and plans for getting together with friends. Five of the e-mails were wholly
personal and did not relate in any way to Mayslake. The subject lines of the e-mails included:
“hello,” “Re: mom,” “Fwd: FW: Fwd: Coffee and Sex,” and “Fwd: David Copperfield]—cool—try
it—art(UNBELIEVABLE).”
None of the e-mails Maxwell printed out contained any
communication that might be viewed as necessary to the operation of Mayslake’s food service, such
as food orders, vendor accounts, or special event planning.
¶ 18
Of the e-mail printouts sent to the plaintiff’s attorney, three had highlighting on them, and
one had handwritten comments and underlining. Maxwell identified the handwriting as Frigo’s.
¶ 19
The plaintiff testified that, although her attorney received copies of the e-mails in April 2007,
she did not learn that her personal AOL account had been accessed until later. In August 2007,
Mayslake’s attorneys filed with the Department of Human Rights Mayslake’s response to the
plaintiff’s sexual harassment claim. Copies of the printouts of the 36 e-mails were attached as
exhibit D. The plaintiff learned in September 2007 that her e-mails had been accessed, printed, and
shared. She withdrew her sexual harassment charge shortly thereafter.
¶ 20
On April 8, 2009, the plaintiff filed a verified five-count complaint against Mayslake and
“unknown persons” in the circuit court of Du Page County. Mayslake was served in July 2009. On
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Mayslake’s motion, the trial court dismissed with prejudice the plaintiff’s claims under title I of the
Electronic Communications Privacy Act of 1986 (18 U.S.C. § 2510 et seq. (2006)), under the Illinois
eavesdropping statute (720 ILCS 5/14-1 et seq. (West 2008)), and for intentional infliction of
emotional distress. The trial court also dismissed, without prejudice, the plaintiff’s claim for
intrusion upon seclusion, on the ground that the court could not assess whether the plaintiff’s privacy
had indeed been intruded upon without seeing the 36 e-mail printouts, which were not attached to
the complaint. The plaintiff then filed a verified amended complaint against Mayslake and
“unknown persons,” reasserting the two claims currently before us—intrusion upon seclusion and
a claim under the Stored Communications Act—and attaching the printouts of the e-mails.
¶ 21
Mayslake moved to strike the plaintiff’s verification of her complaints and the trial court
granted the motion. On October 14, 2009, Mayslake filed an unverified answer to the amended
complaint. The parties commenced discovery. On December 18, 2009, Mayslake mailed to the
plaintiff’s attorney its answers to written interrogatories, in which for the first time it identified Frigo
and Maxwell as having been involved in the accessing of the plaintiff’s e-mails. In April 2010, the
discovery depositions of Frigo and Maxwell were taken. The plaintiff then sought leave to file a
second amended complaint adding Frigo and Maxwell as defendants but leaving the substance of
her claims unchanged. The trial court granted the motion, and the plaintiff filed the second amended
complaint on May 24, 2010. The same attorneys representing Mayslake (who had also represented
Frigo and Maxwell at their depositions) filed an appearance on behalf of Frigo and Maxwell.
¶ 22
Over the next few months, the defendants filed two motions. Mayslake filed a motion for
summary judgment under section 2-1005 of the Code of Civil Procedure (the Code) (735 ILCS 5/21005 (West 2008)), arguing that Frigo’s and Maxwell’s deposition testimony established that they
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did not act with wrongful intent and thus the plaintiff could not prove either of her claims against
Mayslake. (Mayslake also argued that the suit was barred by the statute of limitations, but it later
admitted that it had gotten its dates wrong and withdrew that argument.) Frigo and Maxwell filed,
pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2008)), a motion to dismiss the
complaint as to them on the basis that the claims against them were untimely, because the second
amended complaint had been filed over a year after the statute of limitations expired. The plaintiff
responded to the motion for summary judgment by pointing to evidence that, she argued, raised a
question of fact as to Frigo’s and Maxwell’s intent. As to the motion to dismiss, she argued that her
second amended complaint “related back” to the date she filed the original complaint under section
2-616(d) of the Code (735 ILCS 5/2-616(d) (West 2008)).
¶ 23
The trial court heard argument on the two motions and granted both of them, stating as
follows:
“Okay. Well, I—after reading the case law, reading your—your papers, hearing the
argument, first of all, I—I don’t think that the plaintiff has accurately or substantially, or in
any way, replied to the defendant’s position with respect to intent. I—I find, as a matter of
fact, that it is more likely an accident than—than that there’s an intention. So summary
judgment is granted—
[interjection by the defendants’ attorney]
—to—Mayslake.
***
With respect to the statute of limitations, it’s crystal clear to me that Mr. Frigo’s
involvement was known to your client well before the—the lawsuit was filed, before he was
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named in the lawsuit, so the statute of limitations apply [sic]. With respect to Ms. Maxwell
it’s a little more difficult, but frankly, I don’t—I don’t find that the action was brought timely
with respect to her either, so the motions are granted with respect to—
[interjection by the defendants’ attorney]
—all of them.”
The plaintiff filed a timely notice of appeal.
¶ 24
ANALYSIS
¶ 25
The Motion for Summary Judgment: Intent
¶ 26
On appeal, the plaintiff argues that both of the trial court’s rulings were in error and that
neither Mayslake’s motion for summary judgment nor the individual defendants’ motion to dismiss
should have been granted. We begin by addressing the motion for summary judgment.
¶ 27
A motion for summary judgment is properly granted where the pleadings, depositions,
admissions, and affidavits establish that no genuine issue of material fact exists and that the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2008); Farmers
Automobile Insurance Ass’n v. Williams, 321 Ill. App. 3d 310, 314 (2001). A triable issue
precluding summary judgment exists where material facts are disputed or where the material facts
are undisputed but reasonable persons might draw different inferences from the undisputed facts.
Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). We review the grant of summary
judgment de novo. Ioerger v. Halverson Construction Co., 232 Ill. 2d 196, 201 (2008).
¶ 28
We begin by noting that the trial court acted improperly when it stated that it found “as a
matter of fact” that the accessing of the plaintiff’s e-mails by Mayslake’s employees was “more
likely an accident” rather than intentional. In doing so, the trial court made a factual finding on one
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of the principal disputed issues in the case, a course that is inappropriate when the question is
whether to grant summary judgment. “The purpose of summary judgment is to determine whether
a genuine issue of material fact exists, not to try a question of fact.” Thompson v. Gordon, 241 Ill.
2d 428, 438 (2011). Nevertheless, because our review is de novo, we leave this error aside and
simply consider whether the plaintiff established that a question of material fact exists.
¶ 29
Mayslake argues that it was entitled to summary judgment because it produced evidence—the
deposition testimony of Frigo and Maxwell—that those persons did not intentionally access the
plaintiff’s e-mails, and the plaintiff produced no contrary testimony or affidavits. Therefore,
Mayslake argues, the plaintiff cannot prevail on either of her claims, both of which require the
plaintiff to show intent. See Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 976 (M.D.
Tenn. 2008) (violation of Stored Communications Act occurs when a person intentionally and
without authorization accesses another’s e-mail stored on a server); Busse v. Motorola, Inc., 351 Ill.
App. 3d 67, 71 (2004) (intrusion upon seclusion occurs when one person intentionally intrudes upon
the solitude or seclusion of another in a manner that would be highly offensive to a reasonable
person). Mayslake further emphasizes that “intent” in the context of the Stored Communications
Act means more than voluntarily performing the actions necessary to access the stored
communications of another. Rather, gaining such access must have been the defendant’s conscious
objective. Butera & Andrews v. International Business Machines Corp., 456 F. Supp. 2d 104, 10910 (D.D.C. 2006). Mayslake argues that, because it was entitled to check the food service computer
(one of its own “technology resources” under its policy on employees’ computer use) and Maxwell
testified that she thought the AOL icon displayed on that computer’s screen could have been a workrelated account, it did not intentionally access the plaintiff’s e-mails.
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¶ 30
A party’s intent when acting is a question of fact. See People v. Cardamone, 232 Ill. 2d 504,
517 (2009) (defendant’s argument regarding his intent presented a question of fact); Schroeder v.
Winyard, 375 Ill. App. 3d 358, 364 (2007) (bankruptcy discharge case; whether act was willful and
malicious was question of fact); Palmateer v. International Harvester Co., 140 Ill. App. 3d 857, 860
(1986) (listing a broad range of cases holding that intent is a question of fact, including holdings on
retaliatory discharge, fraud, easements, and trust construction). As summary judgment must be
reserved for cases in which there is no question of material fact (735 ILCS 5/2-1005(c) (West 2008)),
it generally should not be used when a party’s intent is a central issue in the case (Schroeder, 375
Ill. App. 3d at 368). Indeed, we have repeatedly held that “ ‘summary judgment is particularly
inappropriate where the inferences which the parties seek to have drawn deal with questions of
motive, intent[,] and subjective feelings and reactions.’ ” Williams, 321 Ill. App. at 314 (quoting
Raprager v. Allstate Insurance Co., 183 Ill. App. 3d 847, 859 (1989)). Nevertheless, even factual
matters may be decided via summary judgment if the movant puts forward evidence as to a material
fact that would entitle it to judgment and the nonmovant does not counter by pointing to contrary
evidence. Schroeder, 375 Ill. App. 3d at 368.
¶ 31
In this case, the plaintiff had no direct evidence of why Frigo and Maxwell acted as they did
in accessing, printing, and sharing her personal e-mails; she could not read their minds. However,
intent may be gleaned from circumstances and actions, not simply words. Thomas v. Koe, 395 Ill.
App. 3d 570, 582 (2009). Indeed, actions may be better evidence of a person’s intent than his or her
declarations. Stein v. County Board of School Trustees, 40 Ill. 2d 477, 480 (1968) (“Intent is
gathered primarily from the acts of a person.”); see also Schroeder, 375 Ill. App. 3d at 368 (“in
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determining intent, a person’s declarations of intent are entitled to less weight than his or her actions
demonstrating intent”).
¶ 32
In opposing the motion for summary judgment, the plaintiff pointed to Frigo’s and Maxwell’s
testimony that they were aware of the plaintiff’s sexual harassment allegations against Frigo at the
time the e-mails were accessed. In addition, Maxwell testified that she knew that the plaintiff used
Comcast for work-related purposes, yet she not only clicked on the AOL icon to open that e-mail
account, she made the further decision to open and read part or all of the individual e-mails she saw
in the plaintiff’s in-box. She then made the further decision to print 36 of the e-mails, none of which
had to do with the ostensible purpose of her e-mail investigations, i.e., looking for business-related
communications about food orders, vendor accounts, special event plans, and the like. The evidence
also permits the inference that Maxwell did not stop with viewing the plaintiff’s e-mail in-box (the
first screen that Maxwell testified she saw in the AOL account) and opening and reading the
messages she saw there, but that Maxwell also explored further to find e-mails that the plaintiff had
sent—the great majority of the 36 e-mails Maxwell printed were sent by the plaintiff, not to her. It
is undisputed that some of the e-mails that Maxwell decided to print bore subject lines such as
“hello,” “Re: mom,” “Fwd: FW: Fwd: Coffee and Sex,” and “Fwd: David Copperfield]—cool—try
it— art(UNBELIEVABLE),” which might suggest to a reasonable person that the content of the emails was not work-related. By contrast, Maxwell did not print out any of the “boatloads” of foodservice-related e-mails that she encountered when she checked the plaintiff’s Comcast account.
When Frigo received the e-mail printouts from Maxwell, he read through some of them (highlighting
and making written comments on at least one) and then shared them with Dreffein and Mayslake’s
attorneys rather than destroying them, despite his conclusion that the e-mails were personal and not
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work-related. Finally, those attorneys, acting as Mayslake’s agents, then attached copies of the emails to Mayslake’s response filed in the sexual harassment proceeding.2
2
Mayslake argues that Maxwell reasonably continued to think that the AOL account could
be work-related even after accessing the account, because “she testified that she specifically recalled
seeing e-mails from Gordon Food Services on [the food service] computer.” (Gordon Food Services
is a vendor for Mayslake.) Mayslake is attempting to stretch Maxwell’s testimony beyond its true
nature here. In response to questions as to how the e-mails were displayed in the in-boxes of the
accounts Maxwell accessed, she testified that the screen showed names that indicated the senders
of the e-mails:
“Q. [Plaintiff’s attorney]: Let’s go back.
You said that what appeared was Date, Subject, and then it also showed a name like
who sent it.
A. [Maxwell]: Correct. For example, Gordon Food Service, be [sic] Gordon Food
Service.”
This exchange is a far cry from evidence that Maxwell saw this vendor’s name in the in-box of the
plaintiff’s personal AOL account. Maxwell did not testify that she actually saw the name of the
vendor that she used as an example, nor is it even clear whether she was thinking of the AOL
account or the Comcast account when she gave this example. The plaintiff’s attorney engaged in
similar exaggeration at oral argument by suggesting that Mayslake’s answers to interrogatories
identified Maxwell as a “defendant”; they did not. This type of fact-stretching argumentation, which
is at best disingenuous and at worst an attempt to deliberately misrepresent the record, reflects
extremely poorly on counsel for both parties and undermines rather than enhances their
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¶ 33
All of this circumstantial evidence is sufficient to raise an issue of the credibility of Frigo’s
and Maxwell’s statements about their intent with respect to the accessing, printing, and sharing of
the plaintiff’s personal e-mails, and such credibility issues are properly resolved by the trier of fact.
We note that other courts interpreting the Stored Communications Act have stated that the type of
evidence presented here is more than sufficient to withstand a motion for summary judgment (see
Jennings v. Jennings, 697 S.E.2d 671, 675 (S.C. Ct. App. 2010) (citing Fischer v. Mt. Olive
Lutheran Church, Inc., 207 F. Supp. 2d 914, 924-26 (W.D. Wis. 2002))), and in some cases could
even justify granting summary judgment in the plaintiff’s favor (see Cardinal Health, 582 F. Supp.
2d at 976 (“where the facts indisputably present a case of an individual logging onto another’s e-mail
account without permission and reviewing the material therein, a summary judgment finding of an
SCA [Stored Communications Act] violation is appropriate”) (citing Wyatt Technology Corp. v.
Smithson, No. CV 05-1309 DT(RZx), 2006 WL 5668246, *9-10 (C.D. Cal. Aug. 14, 2006))). We
therefore reverse the trial court’s entry of summary judgment in favor of Mayslake.
¶ 34
¶ 35
The Motion to Dismiss: Section 2-616(d)
We next address the trial court’s dismissal of the individual defendants, Frigo and Maxwell,
from the suit. Before we delve into this issue, we must pause to consider a jurisdictional matter
raised by the defendants. In her notice of appeal, the plaintiff stated that she was appealing from the
order entered “on November 17, 2010 granting Defendants’ Motion for Summary Judgment.” The
defendants point out that, although the November 17 order also granted their motion to dismiss, the
plaintiff did not specifically refer to that portion of the order. Therefore, they argue, this court
representation of their clients.
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acquired jurisdiction to review only the grant of summary judgment and not their dismissal from the
action.
¶ 36
Our supreme court has applied a broad standard in determining whether a notice of appeal
confers jurisdiction on the appellate court:
“[A] notice of appeal is to be liberally construed. The notice of appeal serves the purpose
of informing the prevailing party in the trial court that the unsuccessful litigant seeks a
review by a higher court. Briefs, and not the notice of appeal itself, specify the precise points
to be relied upon for reversal. Courts in this State and the Federal courts have repeatedly
held that a notice of appeal will confer jurisdiction on an appellate court if the notice, when
considered as a whole, fairly and adequately sets out the judgment complained of and the
relief sought so that the successful party is advised of the nature of the appeal. [Citations.]
Unless the appellee is prejudiced thereby, the absence of strict technical compliance with the
form of the notice is not fatal, and where the deficiency in the notice is one of form only, and
not of substance, the appellate court is not deprived of jurisdiction.” Burtell v. First Charter
Service Corp., 76 Ill. 2d 427, 433-34 (1979).
See also People v. Smith, 228 Ill. 2d 95, 104 (2008) (reiterating these principles).
¶ 37
Applying these principles here, we must begin by considering the notice of appeal as a whole.
In addition to identifying the order being appealed from as the order entered “on November 17, 2010
granting Defendants’ Motion for Summary Judgment,” the notice of appeal also stated that the
appeal was “premised upon manifest errors by the trial court in the rendering of said Order and all
underlying orders thereto,” and the relief sought was “that the aforementioned Order be reversed
and/or vacated by the Appellate Court, and, if necessary, that this cause be remanded to the trial court
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with directives consistent with such disposition.” Construing the notice liberally, as we must (Smith,
228 Ill. 2d at 104), we find that this language fairly apprised the defendants that the plaintiff was
seeking review (and reversal) of the entire order entered on the specified date. We also note that we
must consider whether the defendants would be prejudiced by construing the notice in this manner.
Id. at 105. Here, in contrast to the case they rely upon (Alpha Gamma Rho Alumni v. People ex rel.
Boylan, 322 Ill. App. 3d 310, 313 (2001)), the defendants do not assert that they would suffer any
prejudice from our consideration of the motion to dismiss. See Knapp v. Bulun, 392 Ill. App. 3d
1018, 1023 (2009) (where defendants did not assert that they would be prejudiced, court had
jurisdiction to consider issue not specifically identified in notice of appeal). In fact, they did not
raise the jurisdictional objection until they filed their responsive brief in the appeal, in which they
also argued at length the merits of the dismissal’s correctness. We therefore find that the notice of
appeal in this case was sufficient to confer jurisdiction over all matters addressed in the trial court’s
order of November 17, 2010, including its dismissal of Frigo and Maxwell from the case. We
therefore turn to the issue of whether that dismissal was correct.
¶ 38
The motion to dismiss was brought pursuant to section 2-619 of the Code (735 ILCS 5/2-619
(West 2008)), under which the allegations of a complaint are taken as true but the defendant asserts
an affirmative defense or other matter that would defeat the plaintiff’s claim. 735 ILCS 5/2-619
(West 2008); Nielsen-Massey Vanillas, Inc. v. City of Waukegan, 276 Ill. App. 3d 146, 151 (1995).
The affirmative defense asserted here was the statute of limitations. Frigo and Maxwell contend (and
the plaintiff does not dispute) that the limitations period for both of her claims was two years and
that the limitations period expired at the latest in September 2009, two years after the plaintiff
learned of the accessing of her e-mails. The plaintiff filed her original complaint naming Mayslake
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and “unknown defendants” within this period, but her second amended complaint naming Frigo and
Maxwell as additional defendants was not filed until May 2010, after the period had expired. The
parties dispute whether the filing of the second amended complaint “relates back” to the original
complaint’s filing date pursuant to section 2-616(d) of the Code (735 ILCS 5/2-616(d) (West 2008))
such that the claims against Frigo and Maxwell would be considered timely. “Section 2-619 motions
present a question of law, and we review rulings thereon de novo.” DeLuna v. Burciaga, 223 Ill. 2d
49, 59 (2006).
¶ 39
Section 2-616(a) of the Code permits a pleading to be amended “on just and reasonable
terms” “[a]t any time before final judgment,” and specifically allows the joining of “any party who
ought to have been joined as plaintiff or defendant.” 735 ILCS 5/2-616(a) (West 2008). Subsection
(d) of that section provides for a suspension of the statute of limitations that would normally apply
to claims against a newly added party, under certain circumstances:
“A cause of action against a person not originally named a defendant is not barred by lapse
of time under any statute or contract prescribing or limiting the time within which an action
may be brought or right asserted, if all the following terms and conditions are met: (1) the
time prescribed or limited had not expired when the original action was commenced; (2) the
person, within the time that the action might have been brought *** against him or her[,] plus
the time for service permitted under Supreme Court Rule 103(b), received such notice of the
commencement of the action that the person will not be prejudiced in maintaining a defense
on the merits and knew or should have known that, but for a mistake concerning the identity
of the proper party, the action would have been brought against him or her; and (3) it appears
from the original and amended pleadings that the cause of action asserted in the amended
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pleading grew out of the same transaction or occurrence set up in the original pleading ***.
For the purpose of preserving the cause of action under those conditions, an amendment
adding the person as a defendant relates back to the date of the filing of the original pleading
so amended.” 735 ILCS 5/2-616(d) (West 2008).
The plaintiff contends that all three of the statute’s requirements are met here, and so the claims
against Frigo and Maxwell stated in the second amended complaint relate back to the date when she
filed her initial complaint and thus are timely.
¶ 40
Frigo and Maxwell do not dispute that the first and third requirements for relation back—that
the original complaint was timely, and that the claims brought against them in the second amended
complaint grew out of the same occurrence as the claims in the original complaint—are met.
Instead, they raise three other arguments. First, they argue that, taking as true the plaintiff’s
contention that she did not know for sure until shortly before she filed her second amended
complaint that Frigo and Maxwell were involved in the alleged misconduct, section 2-616(d) does
not apply because it covers only cases in which the plaintiff made a mistake about the identity of the
proper defendants, not cases in which the plaintiff’s failure to name all of the defendants in her initial
complaint was due to a lack of knowledge. Second, they argue that, even if section 2-616(d) applies
to this case, the second requirement for relation back was not met as to Maxwell because she learned
about the suit only a few days before her deposition, outside of the statutory time period. Finally,
they argue that the relation-back doctrine cannot be applied to the claim against Frigo because in fact
the plaintiff knew before she filed suit that Frigo was involved in the accessing of her e-mails, and
thus there was no excuse for her failure to name him as a defendant in the original complaint.
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¶ 41
The relation-back doctrine contained in section 2-616(d) has been in existence for many
years. For much of that time it required the plaintiff to show, among other things, that the failure
to name the new defendant in the initial complaint was “inadvertent.” 735 ILCS 5/2-616(d) (West
1992) (previously codified at Ill. Rev. Stat. 1983, ch. 110, ¶ 2-616(d), and Ill. Rev. Stat. 1967, ch.
110, ¶ 46(4)). The focus in many of the cases applying the doctrine was thus on what the plaintiff
knew or should have known at the time the complaint was filed and the plaintiff’s diligence in
seeking to amend the complaint. See, e.g., Evans v. Graber, Inc., 115 Ill. App. 3d 532, 535-36
(1983). In 2002, however, the General Assembly amended section 2-616(d), eliminating the
inadvertence requirement. Examining the legislative history of the amendment, this court concluded
that the amendment was intended to “bring [section 2-616(d) of] the Code into line with” Rule 15(c)
of the Federal Rules of Civil Procedure (Fed R. Civ. P. 15(c)). Compton v. Ubilluz, 351 Ill. App.
3d 223, 233 (2004). The language of the amended section 2-616(d) is substantially similar to that
of Rule 15(c), which provides that an amended pleading naming a new party will relate back to the
filing date of the original pleading if the claims or defenses asserted in the amended pleading are the
same as those in the original and, within the limitations period for the claim plus the time allowed
for service of the pleading, the new party (1) “received such notice of the action that it will not be
prejudiced in defending on the merits,” and (2) “knew or should have known that the action would
have been brought against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ.
P. 15(c)(1)(C).
¶ 42
The first argument raised by Frigo and Maxwell centers on the word “mistake” as it is used
in one portion of the second requirement for relation back under section 2-616(d): the requirement
that the person sought to be added “knew or should have known that, but for a mistake concerning
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the identity of the proper party, the action would have been brought against him or her.” (Emphasis
added.) 735 ILCS 5/2-616(d) (West 2008). Frigo and Maxwell argue that the relation-back doctrine
expressed in section 2-616(d) does not apply here because the plaintiff’s failure to name them as
defendants in her original complaint was not due to a mistake about their identities. They point out
that much of the case law applying section 2-616(d) involves what might be termed the classic
mistaken identity scenario: a case in which party A commits the alleged misconduct, but the plaintiff
sues party B, not realizing that party A (the proper defendant) is a different person or entity, and does
not discover the mistake until later. The plaintiff concedes that she does not fall within this fact
pattern. (The plaintiff says that the reason she did not name Frigo and Maxwell at first was that she
did not know for sure how they were involved in the accessing and sharing of her personal e-mails,
facts that she learned only after receiving Mayslake’s answers to interrogatories and taking the
depositions of Frigo and Maxwell.) However, the plaintiff contends that the relation-back doctrine
nevertheless applies here, because this situation falls within the definition of a “mistake concerning
the identity of the proper party” under section 2-616(d).
¶ 43
The question of whether the facts of this case constitute a “mistake concerning the identity
of the proper party” requires us to construe the language of section 2-616(d). In construing a statute,
our task is to “ascertain and give effect to the legislature’s intent.” Lieb v. Judges’ Retirement
System of Illinois, 314 Ill. App. 3d 87, 92 (2000). The best indicator of the legislature’s intent is the
plain language of the statute. Lee v. John Deere Insurance Co., 208 Ill. 2d 38, 43 (2003). “When
the statute’s language is clear, it will be given effect without resort to other aids of statutory
construction.” Id.
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“However, if a statute is capable of being understood by reasonably well-informed
persons in two or more different ways, the statute will be deemed ambiguous. Landis v.
Marc Realty, L.L.C., 235 Ill. 2d 1, 11 (2009). If the statute is ambiguous, the court may
consider extrinsic aids of construction in order to discern the legislative intent. [Id.] We
construe the statute to avoid rendering any part of it meaningless or superfluous. [In re
Marriage of] Blum, 235 Ill. 2d [21,] 29 [(2009)]. ***
We may also consider the consequences that would result from construing the statute
one way or the other. Landis, 235 Ill. 2d at 12. In doing so, we presume that the legislature
did not intend absurd, inconvenient, or unjust consequences. [Id.]” Solon v. Midwest
Medical Records Ass’n, 236 Ill. 2d 433, 440-41 (2010).
In addition, in construing section 2-616(d) we must interpret its language liberally, bearing in mind
the jurisprudential policy that claims should be decided on their merits if possible. “This policy ***
suggests that we should select a construction of [section 2-616(d)] that would lead to a resolution
on the merits.” Compton, 351 Ill. App. 3d at 233.
¶ 44
Where a provision of the Illinois Code of Civil Procedure is patterned after a Federal Rule
of Civil Procedure, federal cases interpreting the federal rule are persuasive authority with regard to
the application of the Illinois provision. Cruz v. Unilock Chicago, Inc., 383 Ill. App. 3d 752, 761
(2008); see also Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955, ¶¶ 28-33, 37-40
(applying federal case law to issues arising under section 2-616(d)). There is little Illinois case law
applying the amended version of section 2-616(d), and virtually none addressing the issue of whether
the section can be applied to a situation in which the plaintiff’s initial failure to name a defendant
within the limitations period was due to a lack of knowledge about the defendant, rather than an
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incorrect impression about the identity of the defendant. By contrast, federal courts have been
applying the current version of Rule 15(c) since 1993, and thus there is a substantially greater body
of federal case law on the issue. Accordingly, we look beyond Illinois law to consider federal case
law in our analysis.
¶ 45
Before last year, the federal courts of appeals were divided as to whether the relation-back
doctrine embodied in Rule 15(c) could be applied to situations outside of the quintessential case of
misnomer or mistaken identity. The majority of the courts held that the requirements for relation
back under Rule 15(c) included not only that the defendant knew about the suit within the statutory
time and would not be prejudiced by being added to the suit—the requirements of subsections (i) and
(ii) of the rule—but also an independent requirement that the failure to name the new defendant
earlier must have been the result of a “mistake.” These courts interpreted that term narrowly,
holding that a plaintiff’s lack of knowledge about the identity of individual defendants was not a
“mistake” within the meaning of Rule 15(c). See, e.g., King v. One Unknown Federal Corrections
Officer, 201 F.3d 910, 914 (7th Cir. 2000); Jacobsen v. Osborne, 133 F.3d 315, 321 (5th Cir. 1998);
Rendall-Speranza v. Nassim, 107 F.3d 913, 919 (D.C. Cir. 1997); Barrow v. Wethersfield Police
Dept., 66 F.3d 466, 468 (2d Cir. 1995).
¶ 46
However, some courts rejected that analysis. In Goodman v. Praxair, Inc., 494 F.3d 458, 467
(4th Cir. 2007), the Fourth Circuit noted that Rule 15(c)’s requirements “reflect a subtle and complex
compromise of two competing policies”: the policy favoring the liberal amendment of pleadings to
enable a just determination on the merits, and the policy supporting allowing defendants repose after
a certain period of time so that they are not prejudiced by having to defend against stale claims when
the testimony or other evidence they need for their defense is no longer available. “In light of these
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policies, Rule 15(c) must be understood to freely permit amendment of pleadings and their
relation-back so long as the policies of statutes of limitations have been effectively served.
[Citation.] And that is accomplished in Rule 15(c) by requiring that a new party have had adequate
notice within the limitations period and by assuring that the new party not be prejudiced by the
passage of time between the original pleading and the amended pleading.” Id. at 468.
¶ 47
The Fourth Circuit then directly addressed the defendants’ contention that Rule 15(c) referred
to a “mistake” by the plaintiff and that the only types of mistake encompassed by the rule were those
involving corporate identity or misnomer, not mistakes based upon a lack of knowledge. The court
held that, contrary to the defendants’ argument, the term “mistake” in Rule 15(c) serves only as a
general description of the type of knowledge that the new defendant must possess, that is, the
knowledge that he or she would have been named in the original complaint if not for a mistake by
the plaintiff. As such, the term alludes “by implication to a circumstance where the plaintiff makes
a mistake in failing to name a party, in naming the wrong party, or in misnaming the party in order
to prosecute his claim as originally alleged.” Id. at 470. Construing the term “mistake” in this
manner “serves the policies of freely allowing amendment and at the same time preserving to new
parties the protections afforded by statutes of limitations.” Id. The court commented that it was
aware of contrary decisions by other courts of appeal, but that the language of Rule 15(c) did not
support the construction adopted in those cases, and decisions of the First and Third Circuits were
in accord with the Fourth Circuit on the issue. See Arthur v. Maersk, Inc., 434 F.3d 196, 208 (3d
Cir. 2006) (“A ‘mistake’ is no less a ‘mistake’ when it flows from lack of knowledge as opposed to
inaccurate description.”); Leonard v. Parry, 219 F.3d 25, 28-29 (1st Cir. 2000) (a plaintiff’s
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knowledge regarding the proper defendant’s identity was not relevant to whether she made a
“mistake concerning the identity of the proper party”).
¶ 48
In Krupski v. Costa Crociere S.p.A., 560 U.S. ___, 130 S. Ct. 2485 (2010), the Supreme
Court addressed the split among the federal courts of appeal on this very issue. Id. at ___, 130 S.
Ct. 2485 at 2492-93. In Krupski, the plaintiff, a passenger on a cruise ship who sustained an injury
onboard, brought suit against Costa Cruise Lines, the entity whose Florida address was listed on the
front of the ticket and that was identified on the back of the ticket as the sales agent and the issuer
of the ticket. However, the plaintiff failed to name Costa Crociere S.p.A., identified on the back of
the ticket as the carrier. The complaint, filed shortly before the statute of limitations expired,
alleged that Costa Cruise Lines owned, operated, managed, supervised, and controlled the ship on
which the plaintiff was injured. After the limitations period had run, Costa Cruise Lines filed an
answer and provided other information over the next few months identifying Costa Crociere as the
owner and operator of the ship. The plaintiff did not file an amended complaint naming Costa
Crociere until approximately five months after the initial complaint. The trial court dismissed the
amended complaint on the ground that it was untimely and the Eleventh Circuit affirmed in an
unpublished per curiam opinion. The court of appeals held that the amended complaint did not
relate back to the filing date of the original complaint, because the plaintiff knew or should have
known the correct defendant’s identity based on the information contained on her ticket, and thus
her naming of Costa Cruise Lines should be treated as a deliberate decision, not a “mistake” under
Rule 15(c). Moreover, the plaintiff had not been diligent in seeking to amend her complaint. Id. at
___, 130 S. Ct. at 2492.
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¶ 49
The Supreme Court began by rejecting, as inconsistent with Rule 15(c)’s focus, the Eleventh
Circuit’s conclusion that the plaintiff had not made a “mistake” within Rule 15(c) because she either
knew or should have known of the correct defendant’s identity before she filed suit: “Rule
15(c)(1)(C)(ii) asks what the prospective defendant knew or should have known during the [relevant]
period, not what the plaintiff knew or should have known at the time of filing her original
complaint.” (Emphasis in original.) Id. at ___, 130 S. Ct. at 2493. The Court held that the
plaintiff’s knowledge or conduct had little relevance in determining whether a claim related back,
and refused to construe narrowly the reference to “a mistake concerning the proper party’s identity.”
Fed. R. Civ. P. 15(c)(1)(C)(ii). Rather, the Court defined the term “mistake” broadly to include not
only an error or misconception, but also “a misunderstanding of the meaning or implication of
something” or “a wrong action or statement proceeding from faulty judgment, inadequate
knowledge, or inattention.” (Internal quotation marks omitted and emphasis added.) Id. at ___, 130
S. Ct. at 2494 (quoting Webster’s Third New International Dictionary 1446 (2002)).
¶ 50
The Court explained that its broad interpretation of the term “mistake” to include a deliberate
but mistaken choice by a plaintiff was necessary to give effect to the purpose of the relation-back
doctrine:
“This reading is consistent with the purpose of relation back: to balance the interests
of the defendant protected by the statute of limitations with the preference expressed in the
Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes
on their merits. [Citations.] A prospective defendant who legitimately believed that the
limitations period had passed without any attempt to sue him has a strong interest in repose.
But repose would be a windfall for a prospective defendant who understood, or who should
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have understood, that he escaped suit during the limitations period only because the plaintiff
misunderstood a crucial fact about his identity.” Id. at ___, 130 S. Ct. at 2494.
The Court acknowledged that Rule 15(c) would not apply where there was no mistake at all, but
described that circumstance as existing only where “the original complaint and the plaintiff’s
conduct compel the conclusion that the failure to name the prospective defendant in the original
complaint was the result of a fully informed decision.” Id. at ___, 130 S. Ct. at 2496. In Krupski,
however, the allegations of the complaint made it clear that the plaintiff meant to sue the company
that owned and operated the ship on which she was injured, and thus her failure to do so was a
mistake. Id. at ___, 130 S. Ct. at 2497. Finally, the Court rejected the idea that the plaintiff’s
diligence in seeking to amend the complaint was relevant to relation back under Rule 15(c): “The
Rule plainly sets forth an exclusive list of requirements for relation back, and the amending party’s
diligence is not among them.” Id. at ___, 130 S. Ct. at 2496.
¶ 51
Krupski caused both federal and state courts to reevaluate their approach to relation back.
“The only two inquiries that the district court is now permitted to make in deciding whether an
amended complaint relates back to the date of the original one are, first, whether the defendant who
is sought to be added by the amendment knew or should have known that the plaintiff, had it not
been for a mistake, would have sued him instead or in addition to suing the named defendant; and
second, whether, even if so, the delay in the plaintiff’s discovering his mistake impaired the new
defendant’s ability to defend himself.” Joseph v. Elan Motorsports Technologies Racing Corp., 638
F.3d 555, 559-60 (7th Cir. 2011). In Maggi, 2011 IL App (1st) 091955, ¶¶ 28-33, a recent Illinois
case, the appellate court similarly took its lead from Krupski and applied this same two-part analysis
in deciding whether an amended complaint naming a different general contractor related back to the
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filing of the original complaint under section 2-616(d). We too conclude that the principles stated
in Krupski apply equally here. With these principles in mind, we find that a lack of knowledge about
the identity of all of those involved in the alleged wrongdoing qualifies as a “ ‘mistake concerning
the identity of the proper party’ ” for the purposes of the relation-back doctrine. See Krupski, 560
U.S. at ___, 130 S. Ct. at 2494 (defining “mistake” to encompass, among other things, “a wrong
action or statement proceeding from *** inadequate knowledge” (internal quotation marks omitted));
Arthur, 434 F.3d at 208 (“A ‘mistake’ is no less a ‘mistake’ when it flows from lack of knowledge
***”). We therefore reject the defendants’ argument and find that section 2-616(d) properly applies
to this case, in which the plaintiff’s failure to name Frigo and Maxwell in her initial complaint was
a “mistake” derived from her lack of knowledge about the nature of their involvement.
¶ 52
The defendants next argue that, even if section 2-616(d) applies to this case, one of the
requirements for relation back—notice of the suit within the limitations period plus the time for
service under Illinois Supreme Court Rule 103(b) (eff. July 1, 2007)—was not met as to Maxwell
because according to her testimony she learned about the suit only a few days before her deposition.
The defendants point out that Maxwell was deposed about seven months after the statute of
limitations expired, and Illinois courts have generally held that “the time for service permitted under
Supreme Court Rule 103(b)” is less than that. See, e.g., Lewis v. Dillon, 352 Ill. App. 3d 512, 514
(2004). Thus, they argue, Maxwell did not, within the statutory period, “receive[] such notice of the
commencement of the action that [she would] not be prejudiced in maintaining a defense on the
merits.” 735 ILCS 5/2-616(d) (West 2008). (Frigo testified that he saw the original complaint when
it first came into the office, i.e., when it was served on Mayslake, and the defendants have not raised
this particular argument as to him.)
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¶ 53
The plaintiff argues that, even if Maxwell did not have actual notice of the suit until later,
she had constructive or imputed knowledge because; she was employed by Mayslake (which had
timely notice of the suit), the claims asserted against her are the same ones asserted against
Mayslake, and she is represented by the same attorneys who have represented Mayslake since the
beginning. The plaintiff notes that Maxwell and Frigo (whose arguments we examine later) do not
argue that having been brought into the suit later prejudiced them in any way. The plaintiff argues
that, as the notice to Maxwell was sufficient to ensure that she would not be prejudiced in her
defense, it met the requirements of section 2-616(d) for relation back.
¶ 54
In considering whether a person had notice that he or she was an intended target of a lawsuit
(or, in the words of section 2-616(d), “knew or should have known that, but for a mistake ***, the
action would have been brought against him or her”), we must look to both the allegations of the
original complaint and the circumstances relating to notice, especially the relationship, if any,
between the named defendant(s) and the prospective defendant. In Krupski, the Court examined (a)
the allegations of the complaint, which made it clear that the plaintiff sought to sue the entity that
owned and operated the ship on which she was injured, and (b) the parent-subsidiary relationship
between the named defendant and the prospective defendant, in concluding that the prospective
defendant received timely notice of the suit. Krupski, 560 U.S. at ___, 130 S. Ct. at 2497.
Additionally, in that case the prospective defendant was represented by the same attorney who had
represented the original defendant throughout. Id. at ___, 130 S. Ct. at 2491.
¶ 55
Federal appeals courts have held that, where the named defendant and the prospective
defendant are closely related and also share the same attorney, that attorney’s knowledge of the suit
may be imputed to the prospective defendant under certain circumstances. See Goodman, 494 F.3d
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at 475 (“when a plaintiff alleges a comprehensible claim against one of a group of closely related ***
business entities or corporations, the other entities in that group, barring a contrary showing, will be
charged with knowledge” of the claim under the relation-back doctrine; also relying on the fact that
the same attorney represented both); Singletary v. Pennsylvania Dept. of Corrections, 266 F.3d 186,
195 (3d Cir. 2001) (“notice” for purposes of Rule 15(c) is not the same as service of a complaint,
and may be satisfied by knowledge gained by informal means, so long as the knowledge is of the suit
itself and not simply of the events underlying the suit; citing cases). When the notice is less formal,
a court must be more concerned with whether that notice was sufficient to ensure that the prospective
defendant would not be prejudiced by the delay in being added to the suit. “Prejudice and notice are
closely intertwined in the context of Rule 15(c)(3), as the amount of prejudice a defendant suffers
under 15(c)(3) is a direct effect of the type of notice he receives.” Singletary, 266 F.3d at 194 n.3.
¶ 56
The question of whether Maxwell may be said to have had timely notice of the suit is a close
one. On the one hand, the claims against Maxwell are identical to those asserted against Mayslake;
her actions in accessing, printing, and sharing the plaintiff’s personal e-mails form much of the basis
for Mayslake’s potential liability; and there is sufficient identity of interest in this lawsuit between
Mayslake and Maxwell such that Maxwell would suffer no prejudice to her ability to defend herself
by being added to the lawsuit. (Indeed, as the plaintiff noted, neither of the individual defendants
has raised prejudice as a ground for denying relation back.) Moreover, given the fact that the
plaintiff included “unknown defendants” as parties to her suit and specifically identified in the
allegations of her original complaint the very acts that Maxwell performed, and that Mayslake and
its attorneys knew that Maxwell performed, it is clear that Mayslake knew that Maxwell was a
potential defendant at the time the initial complaint was served. Similarly, if Maxwell had read the
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complaint she would or should have known that it related to her despite the fact that she was not
initially named.
¶ 57
On the other hand, Maxwell testified that she did not know of the plaintiff’s suit until shortly
before her deposition, well outside of the statutory period. She also testified that she did not talk
with Frigo about the suit until the morning of her deposition and did not help Frigo gather documents
responsive to discovery requests earlier in the suit. Further, despite the fact that she was Frigo’s
administrative assistant and handled the mail for him, there is no evidence that she saw the original
complaint when it was served. (The return of service stated that the complaint and summons were
directed to Mayslake “c/o Larry Dreffein” and that a person named Sandy Graham accepted service
at Mayslake’s address.)
¶ 58
This evidence that Maxwell had no actual notice of the suit within the statutory period
distinguishes this case from several of the cases in which the courts found constructive or imputed
notice, and makes it more closely resemble Garvin v. City of Philadelphia, 354 F.3d 215 (3d Cir.
2003). In that case, the plaintiff sued the city and “Officer John Doe,” alleging that unknown police
officers injured her during an arrest; 2½ years later, the plaintiff sought to amend the complaint to
add as defendants the individual police officers responsible for her injuries. The district court denied
leave to amend and the appellate court affirmed on the ground that the individual officers did not
have notice of the suit within the required period. The Third Circuit explained two variants of
constructive notice—notice via sharing an attorney with a named defendant, and notice due to an
identity of interest—but concluded that neither applied to the prospective defendants. Notice could
not be imputed through the “shared attorney” theory, because there must be evidence that the
common attorney actually communicated with the prospective defendants during the statutory period,
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and there was no evidence that the city’s attorney had done so. Id. at 223-24. As for the identity of
interest theory, it did not apply where the prospective defendants were nonmanagerial employees
who would not necessarily have been aware of the suit. Id. at 227.
¶ 59
Similarly, Maxwell was a nonmanagerial employee whose awareness of the suit cannot be
presumed from Mayslake’s and Frigo’s knowledge, and there is no evidence that she communicated
with Mayslake’s attorneys about the suit within the statutory period. The plaintiff argues that it
would be reasonable to infer that Mayslake’s attorneys spoke with Maxwell in the process of drafting
Mayslake’s answers to interrogatories (which were completed and served in December 2009,
potentially within the statutory period), and thus Maxwell had timely notice of the suit. In those
answers, Mayslake identified Maxwell as having been involved in accessing the plaintiff’s e-mails.
However, at oral argument Mayslake’s attorney stated that the answers to the interrogatories were
based only on Frigo’s personal knowledge and that the attorneys did not communicate with Maxwell
in the process of preparing them. Although Maxwell notarized Frigo’s certification of the
interrogatory answers, the notarization required her only to witness Frigo’s signature, not read the
answers themselves. Accordingly, we conclude that Maxwell did not have the required notice of the
suit within the statutory period, and thus the second amended complaint was untimely as to her and
did not relate back under section 2-616(d). The trial court did not err in dismissing the suit as to
Maxwell.
¶ 60
The defendants’ final argument is that the relation-back doctrine cannot be applied to the
claim against Frigo either, because even before she filed suit the plaintiff knew that Frigo was
involved in the accessing of her e-mails. They point to a letter written by the plaintiff in September
2007 to Dreffein’s supervisor, in which she stated that she believed Frigo was involved in accessing
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her e-mails. Thus, they contend that she had no excuse for not naming Frigo as a defendant in her
original complaint. In response, the plaintiff argues that her letter expressed only her suspicions, not
the type of actual knowledge formed after reasonable investigation of her claim that is required under
Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994) before a claim may be asserted. She argues that
she acted reasonably and ethically in waiting until she had evidence of Frigo’s involvement before
naming him as a defendant. We need not address this dispute over the significance of the words used
by the plaintiff in her letter because the legal theory on which the defendants’ argument rests is
flawed.
¶ 61
The defendants’ argument is essentially that the plaintiff cannot use the harbor of relation
back because she was not diligent in amending the complaint to name Frigo as a proper defendant.
Diligence on the part of the plaintiff was required under the old version of section 2-616(d), which
focused on whether the plaintiff’s failure to name a defendant at the outset was “inadvertent.” See
Campbell v. Feuquay, 140 Ill. App. 3d 584, 588 (1986). However, as discussed above, the 2002
amendment to the statute eliminated this requirement. The purpose of the amendment was to bring
the relation-back doctrine in Illinois law into harmony with the federal version of the doctrine, as
expressed in Rule 15(c). Compton, 351 Ill. App. 3d at 233. The Supreme Court has emphatically
rejected the argument that the plaintiff’s diligence is relevant to the determination of whether, under
Rule 15(c), an amended complaint naming a new defendant relates back to the timely filed claims.
Krupski, 560 U.S. at ___, 130 S. Ct. at 2496. Just as with Rule 15(c), the emphasis in section 2616(d) is on the defendant’s knowledge and possible prejudice, not on the plaintiff’s knowledge and
conduct. 735 ILCS 5/2-616(d) (West 2008); see also Maggi, 2011 IL App (1st) 091955, ¶ 37.
Moreover, the plaintiff’s failure to name Frigo in her original complaint could not reasonably have
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misled Frigo into thinking that the omission was a deliberate legal strategy, in light of the fact that
the plaintiff (1) included “unknown persons” as defendants in that complaint and (2) alleged that she
intended to sue the persons involved in accessing and sharing her personal e-mails, once she knew
who they were. See Krupski, 560 U.S. at ___, 130 S. Ct. at 2497 (rejecting a similar argument on
the grounds that the defendant had “articulated no strategy that it could reasonably have thought [the
plaintiff] was pursuing” in failing to name it in the original complaint). Accordingly, we must reject
the defendants’ argument relating to diligence. The defendants have raised no other arguments for
why the plaintiff’s claims against Frigo in her second amended complaint should not relate back to
her original filing date. Accordingly, we find that those claims are timely and that the trial court
erred in dismissing the second amended complaint as to Frigo. We therefore reverse the dismissal
of the second amended complaint as to Frigo.
¶ 62
¶ 63
CONCLUSION
The judgment of the circuit court of Du Page County is affirmed in part and reversed in part.
The grant of summary judgment in favor of Mayslake is reversed, as is the dismissal of the second
amended complaint as to Frigo. The dismissal of the second amended complaint as to Maxwell is
affirmed. The case is remanded for further proceedings.
¶ 64
Affirmed in part and reversed in part; cause remanded.
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