In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4268

Norman Shropshear,

Plaintiff-Appellant,

v.

Corporation Counsel of
the City of Chicago, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 1066--Joan B. Gottschall, Judge.

Submitted August 14, 2001--Decided December 20, 2001



  Before Posner, Ripple, and Diane P. Wood,
Circuit Judges.

  Posner, Circuit Judge. Norman Shropshear
brought this suit under 42 U.S.C. sec.
1983, charging that the demolition of his
home by the City of Chicago in March of
1997 had deprived him of property without
due process of law. The suit was not
filed until February of 2000, however,
almost three years after the demolition,
and the district court dismissed it as
barred by Illinois’s two-year statute of
limitations for personal-injury suits.
735 ILCS 5/13-202. That is the statute of
limitations that the federal courts
"borrow" for use in section 1983 suits
filed in Illinois. Henderson v. Bolanda,
253 F.3d 928, 931 (7th Cir. 2001);
Farrell v. McDonough, 966 F.2d 279, 282
(7th Cir. 1992); see Wilson v. Garcia,
471 U.S. 261, 275-76 (1985).

  Shropshear argues that the statute of
limitations should be tolled for him on
grounds of fraudulent concealment and
equitable tolling. It is well to
distinguish at the outset between the two
fundamental doctrines of tolling,
equitable tolling and equitable estoppel.
See Cada v. Baxter Healthcare Corp., 920
F.2d 446, 450-51 (7th Cir. 1990).
Equitable tolling permits a plaintiff to
avoid the bar of the statute of
limitations if despite the exercise of
all due diligence he is unable to obtain
vital information bearing on the
existence of his claim. In contrast, the
doctrine of equitable estoppel comes into
play if the defendant takes active steps
to prevent the plaintiff from suing in
time, as by promising not to plead the
statute of limitations. Equitable
estoppel in the limitations setting is
sometimes (though confusingly, as we’re
about to see) called fraudulent
concealment but must not be confused with
efforts by a defendant in a fraud case to
conceal fraud. Fraudulent concealment in
the law of limitations presupposes that
the plaintiff has discovered or, as
required by the discovery rule should
have discovered, that the defendant
injured him. It denotes efforts by the
defendant, above and beyond the
wrongdoing upon which the plaintiff’s
claim is founded, to prevent, by fraud or
deception, the plaintiff from suing in
time.

  As far as equitable tolling is
concerned--the principle that even if the
defendant is not responsible for the
plaintiff’s failure to sue within the
limitations period, the latter can get an
extension of time within which to sue if
it would have been unreasonable to expect
him to be able to sue earlier, e.g.,
Hentosh v. Herman M. Finch University of
Health Sciences, 167 F.3d 1170, 1174 (7th
Cir. 1999); Miller v. Runyon, 77 F.3d
189, 191 (7th Cir. 1996)--an essential
element is that the plaintiff have
exercised due diligence; in other words
that he have acted reasonably. E.g.,
Elmore v. Henderson, 227 F.3d 1009, 1013
(7th Cir. 2000) ("[the plaintiff] could
not possibly invoke the doctrine of
equitable tolling unless he sued just as
soon as possible after the judge’s action
made him realize that the statute of
limitations had run. He waited four
months to sue and has offered no excuse
for the delay"); Ashafa v. City of
Chicago, 146 F.3d 459, 463-64 (7th Cir.
1998). The Illinois cases also require
due diligence by the plaintiff who
charges fraudulent concealment, Turner v.
Nama, 689 N.E.2d 303, 309 (Ill. App.
1997); Nickels v. Reid, 661 N.E.2d 442,
449 (Ill. App. 1996); Bank of Ravenswood
v. Domino’s Pizza, Inc., 646 N.E.2d 1252,
1261-62 (Ill. App. 1995); In re Marriage
of Halas, 527 N.E.2d 474, 478 (Ill. App.
1988), which seems odd, since there is no
defense of contributory negligence to
fraud, an intentional tort. However that
may be (more on this later), the
requirement of due diligence by a
plaintiff seeking to invoke equitable
tolling strikes the proper balance
between innocent defendant and innocent
plaintiff. Shropshear flunks equitable
tolling, therefore, because he admits
having waited for more than a year to
inquire whether his lawyer had filed suit
and another five months after that to
file suit himself. See Butler v. Mayer,
Brown & Platt, 704 N.E.2d 740, 745-46
(Ill. App. 1998); Nickels v. Reid, supra,
661 N.E.2d at 449; Elmore v. Henderson,
supra, 227 F.3d at 1013.

  We have been citing both state and
federal cases on equitable tolling, but
we should consider which actually govern
cases in which the limitations period is
borrowed from state law for use in a suit
based on federal law. The question is
unresolved in this circuit, as noted in
Ashafa v. City of Chicago, supra, 146
F.3d at 464 n. 1, and Reed v. Mokena
School District No. 159, 41 F.3d 1153,
1155 n. 1 (7th Cir. 1994), owing to a
conflict in our cases. Compare Gonzalez
v. Entress, 133 F.3d 551, 554 (7th Cir.
1998), with Suslick v. Rothschild
Securities Corp., 741 F.2d 1000, 1004
(7th Cir. 1984), overruled on other
grounds by Short v. Belleville Shoe Mfg.
Co., 908 F.2d 1385 (7th Cir. 1985); Cange
v. Stotler & Co., 826 F.2d 581, 587 n. 4
(7th Cir. 1987), and Smith v. City of
Chicago Heights, 951 F.2d 834, 841-42
(7th Cir. 1992). The question is
important, because the federal doctrine
may be broader than the state one.
Indeed, we have expressed uncertainty
that the doctrine of equitable tolling
even exists in Illinois. Athmer v. C.E.I.
Equipment Co., 121 F.3d 294, 297 (7th
Cir. 1997); Reed v. Mokena School
District No. 159, supra, 41 F.2d at 1155
n. 1; Singletary v. Continental Ill.
Nat’l Bank & Trust Co., 9 F.3d 1236, 1242
(7th Cir. 1993). In contrast, the federal
doctrine is well established. Taliani v.
Chrans, 189 F.3d 597, 597-98 (7th Cir.
1999). Another example of divergence,
though not one involved in this case,
concerns whether limitations periods for
prisoner civil rights suits under the
same federal statute involved in this
case, 42 U.S.C. sec. 1983, are equitably
tolled for the time required for the
prisoner to exhaust his state remedies
and for the period during which the
plaintiff is in prison. Compare Schweihs
v. Burdick, 96 F.3d 917, 919 (7th Cir.
1996), with Brown v. Morgan, 209 F.3d 595
(6th Cir. 2000), and Harris v. Hegmann,
198 F.3d 153, 158-59 (5th Cir. 1999) (per
curiam); see also Leal v. Georgia Dept.
of Corrections, 254 F.3d 1276, 1280 (11th
Cir. 2001) (per curiam).

  We now hold, in conformity with all the
appellate cases in other circuits that
have addressed the issue, that the state,
rather than the federal, doctrine of
equitable tolling governs cases of
borrowing. See Wade v. Danek Medical,
Inc., 182 F.3d 281, 289-90 (4th Cir.
1999); Tworivers v. Lewis, 174 F.3d 987,
992-93 (9th Cir. 1998); Rotella v.
Pederson, 144 F.3d 892, 897 (5th Cir.
1998); Gonsalves v. Flynn, 981 F.2d 45,
47-48 (1st Cir. 1992) (per curiam); see
generally Cange v. Stotler & Co., supra,
826 F.2d at 586-87; but cf. Lake v.
Arnold, 232 F.3d 360, 370 (3d Cir. 2000);
Vaught v. Showa Denko K.K., 107 F.3d
1137, 1145 (5th Cir. 1997). The reason is
the reciprocal relation between the
length of the limitations period and the
grounds for tolling (extending) it. E.g.,
Wilson v. Garcia, 471 U.S. 261, 269
(1985); Chardon v. Fumero Soto, 462 U.S.
650, 661-62 (1983); Board of Regents v.
Tomanio, 446 U.S. 478, 484-86 (1980);
Johnson v. Railway Express Agency, Inc.,
421 U.S. 454, 463-64 (1975); Cange v.
Stotler, supra, 826 F.2d at 599-600
(concurring opinion). A state might
decide to set a short period but allow
generous tolling, or a long period in
lieu of generous tolling. If the federal
courts used the short period in
conjunction with a tolling doctrine less
generous than that of the state that had
set the period, or the long period in
conjunction with a tolling doctrine more
generous than that of the state, it would
be creating an irrational hybrid. See,
besides the cases just cited, Spinozzi v.
ITT Sheraton Corp., 174 F.3d 842, 848
(7th Cir. 1999); Lewellen v. Morley, 875
F.2d 118, 121 (7th Cir. 1989); Hemmings
v. Barian, 822 F.2d 688, 691 (7th Cir.
1987); Lake v. Arnold, supra, 232 F.3d at
370, and cases cited there; Tworivers v.
Lewis, supra, 174 F.3d at 992; Vaught v.
Showa Denko K.K., supra, 107 F.3d at
1145; Mouradian v. John Hancock Cos., 930
F.2d 972, 974 (1st Cir. 1991) (per
curiam). The tolling rule is a "part of
the legislative balancing of the
conflicting interests of enforcement
versus staleness of claims embodied in
statutes of limitations." Cange v.
Stotler, supra, 826 F.2d at 587.

  Because of the intracircuit conflict
noted earlier, our opinion has been
circulated to the full court in advance
of publication, in accordance with 7th
Cir. R. 40(e). No judge of the court in
regular active service voted to hear the
case en banc.

  We turn now to the question of the
possible tolling of the statute of
limitations in this case on the basis of
defendant misconduct, the domain of
fraudulent concealment and equitable
estoppel. Illinois has codified its
doctrine of fraudulent concealment in a
statute which provides that "if a person
liable to an action fraudulently conceals
the cause of such action from the
knowledge of the person entitled thereto,
the action may be commenced at any time
within 5 years after" the entitled person
discovers that he has such a cause of
action. 735 ILCS 5/13-215. This can’t
help Shropshear. He complains not that
the City of Chicago, but that his own
lawyer (and another private entity not
argued to be in privity with the City),
in effect concealed his claim from him by
misrepresenting that they would file a
timely suit on his behalf. Neither of the
alleged concealers was "a person liable
to an action"--that was the City--and so
their conduct cannot bring Shropshear
within the protection of the fraudulent-
concealment statute. Serafin v. Seith,
672 N.E.2d 302, 312 (Ill. App. 1996).
Anyway they didn’t conceal the cause of
action; they concealed their own failure
to file the suit in time, though probably
Illinois’s doctrine of fraudulent
concealment is not so narrowly
interpreted that the difference would be
crucial in a proper case. See id. at 311.

  If the defendant, while not concealing
from the plaintiff anything but his bad
intent, tells the latter to delay suing
while the parties work things out, this
is not fraudulent concealment within the
strict terms of the Illinois statute that
we cited earlier. But it furnishes
another basis for tolling, namely
equitable estoppel, the master concept of
which fraudulent concealment is one
instantiation. Singletary v. Continental
Ill. Nat’l Bank & Trust Co., supra, 9
F.3d at 1241. Any deliberate or otherwise
blameworthy conduct by the defendant that
causes the plaintiff to miss the
statutory deadline can be the basis for a
defense of equitable estoppel in federal
limitations law. The Serafin case that we
cited in the preceding paragraph
describes equitable estoppel as a
doctrine of Illinois law as well, but
without relating it specifically to the
fraudulent-concealment statute. Other
cases also describe it as a doctrine of
Illinois law. See Beaudette v. Industrial
Comm’n, 719 N.E.2d 191, 193-94 (Ill. App.
1999); Tegeler v. Industrial Comm’n, 672
N.E.2d 1126, 1131 (Ill. App. 1996); see
also Turner v. Nama, supra, 689 N.E.2d at
308. There is a federal doctrine as well,
of course; under it the plaintiff’s lack
of due diligence is not a defense,
because the defendant’s conduct is
deliberate, just as a plaintiff’s
contributory negligence is not a defense
to an intentional tort. Flight Attendants
Against UAL Offset v. Commissioner, 165
F.3d 572, 577 (7th Cir. 1999); Wolin v.
Smith Barney Inc., 83 F.3d 847, 852 (7th
Cir. 1996). There is an important
exception, however (to which we’ll
return): once the circumstance giving
rise to the estoppel is removed--once,
for example, despite the defendant’s
efforts at concealment, the plaintiff
learns that he has a claim--the filing of
the suit cannot be delayed indefinitely.
Bailey v. Int’l Brotherhood of
Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers & Helpers, Local
374, 175 F.3d 526, 530 (7th Cir. 1999).

  We noted earlier that lack of due
diligence is a defense under Illinois’s
doctrine of fraudulent concealment; it
likewise is a defense under Illinois’s
umbrella doctrine of equitable estoppel.
E.g., Nickels v. Reid, supra, 661 N.E.2d
at 447-48. This is an important
difference between the state and federal
doctrines of equitable estoppel. So once
again we face a discrepancy between
federal and state tolling rules. Our
court has held that in a case such as
this, where the federal court is applying
a (borrowed) state statute of
limitations, the federal doctrine of
equitable estoppel, not the state
doctrine, controls. Ashafa v. City of
Chicago, supra, 146 F.3d at 462; Smith v.
City of Chicago Heights, supra, 951 F.2d
at 841; Cange v. Stotler & Co., supra,
826 F.2d at 586-87; Bomba v. W.L.
Belvidere, Inc., 579 F.2d 1067, 1070 (7th
Cir. 1978). These cases say that the
source of the doctrine is not a judgment
regarding the optimal length of a
limitations period, but a general
disapproval of inequitable conduct; and
of course it is true that the doctrine of
equitable estoppel is not limited to the
statute of limitations area but has many
other applications. Nevertheless in that
setting it is a tolling doctrine and one
with uncertain boundaries (as witness the
differences between the federal and the
Illinois doctrine) that one might think
were related to the statutorily specified
length of the period.

  The question whether the state or
federal doctrine governs has divided the
other courts to consider it, compare
Benitez-Pons v. Commonwealth of Puerto
Rico, 136 F.3d 54, 63 (1st Cir. 1998),
with Keating v. Carey, 706 F.2d 377, 382
(2d Cir. 1983); and both Bell v. Fowler,
99 F.3d 262, 267 n. 3 (8th Cir. 1996),
while leaving it unresolved, and the
concurring opinion in our decision in
Cange v. Stotler & Co., supra, 826 F.2d
at 599-600, criticizing our rule, note
the tension between the rule and the
Supreme Court’s decisions on borrowed
statutes of limitations, which in holding
that the federal court should borrow the
tolling rules as well as the statutory
period make no distinction between
equitable estoppel and equitable tolling.
See Wilson v. Garcia, 471 U.S. 261, 269
(1985) (state law governs "the length of
the limitations period, and closely
related questions of tolling and
application"); Board of Regents v.
Tomanio, supra, 446 U.S. at 484-86
(federal courts should borrow forum
state’s most analogous statute of
limitations as well as its body of
tolling rules); Johnson v. Railway
Express Agency, Inc., supra, 421 U.S. at
463-65 ("in virtually all statutes of
limitations the chronological length of
the limitations period is interrelated
with provisions regarding tolling,
revival, and questions of application").
However, whether this circuit’s rule
distinguishing between the two tolling
doctrines should be overruled is a matter
that we leave to another day.

  Given his lack of due diligence,
Shropshear is better off with the federal
doctrine of equitable estoppel, which
doesn’t impose a general duty of due
diligence. Not enough better off to make
a difference, however. Remember that the
alleged misconduct that caused his delay
in suing was not committed by the public
officials whose alleged violation of the
Constitution gave rise to his suit.
Shropshear did name his lawyer and the
other private entity that delayed his
suit as additional defendants. But it
would be bootstrapping to allow the
limitations on the defense of equitable
estoppel to be circumvented in such a
way. Remember, too, that due diligence
becomes a duty, even under the federal
doctrine of equitable estoppel, once the
obstacles strewn by the defendant to the
plaintiff’s suing have been cleared away;
then he must act quickly; Shropshear did
not.

Affirmed.



  RIPPLE, Circuit Judge, concurring. The
panel majority has written a thoughtful
opinion. I write separately for two
reasons. First, I think it would be
helpful to the bench and bar to note
precisely the point that we clarify
today. Secondly, I wish to express my
reservations about commenting
unnecessarily on the settled law of the
circuit with respect to equitable
estoppel.

  At the outset, I note that today’s
decision, following this circuit’s
cornerstone opinion in Cada v. Baxter
Healthcare Corp., 920 F.2d 446 (7th Cir.
1990), makes clear the difference between
equitable tolling and equitable estoppel.
Equitable tolling permits a plaintiff to
avoid the bar of the statute of
limitations if, despite all diligence, he
is unable to obtain vital information
bearing on the existence of his claim. By
contrast, the doctrine of equitable
estoppel comes into play if the defendant
takes active steps to prevent the
plaintiff from suing in time as by
promising not to plead the statute of
limitations. Equitable estoppel in the
limitations setting is sometimes called
fraudulent concealment and must not be
confused with efforts by a defendant in a
fraud case to conceal fraud. Fraudulent
concealment in the law of limitations
presupposes that the plaintiff has
discovered or, as required by the
discovery rule, should have discovered,
that the defendant injured him. It
denotes efforts by the defendant, above
and beyond the wrongdoing upon which the
plaintiff’s claim is founded, to prevent
the plaintiff from suing in time.

  The case before us involves the first of
these doctrines, the doctrine of
equitable tolling. Mr. Shropshear argues
that his own lawyer and another private
entity not in privity with the defendant
City of Chicago concealed his claim by
misrepresenting that they would file an
action on his behalf. Therefore, we must
identify the applicable law for
determining whether Mr. Shropshear can
invoke the doctrine of equitable tolling.
The majority opinion, clarifying the law
of this circuit and harmonizing that law
with the law of all other circuits that
have addressed the matter, holds that,
because we must borrow state law with
respect to the statute of limitations, we
also must borrow state law on the
doctrine of equitable tolling. I do not
think that there is very much in the way
of a serious dispute on this issue. As
the panel opinion makes clear, the reason
for this symmetry is that there is a
reciprocal relationship between the
length of the limitations period and the
grounds for extending it. See generally
Cange v. Stotler & Co., 826 F.2d 581,
586-87 (7th Cir. 1987).

  However, there has been some confusion
as to whether, in an equitable tolling
situation, state law ought to be the
exclusive source to which a court ought
to turn or whether the court also ought
to apply federal tolling principles. As
the court noted in Smith v. City of
Chicago Heights, 951 F.2d 834, 840 & n.6
(7th Cir. 1992), this issue can be traced
back to the court’s holding in Suslick v.
Rothschild Securities Corp., 741 F.2d
1000, 1004 (7th Cir. 1984) (holding that
both state and federal rules of equitable
tolling should be applied when a state
statute of limitations is employed),
overruled on other grounds by Short v.
Belleville Shoe Mfg. Co., 908 F.2d 1385
(7th Cir. 1985); see also Cange, 826 F.2d
at 587 n.4 (noting in dicta the holding
of Suslick in this circuit). In Smith,
the court acknowledged the rule in
Suslick and applied it because it
remained the law of the circuit. See
Smith, 951 F.2d at 840. By contrast, in
Gonzales v. Entress, 133 F.3d 551, 554
(7th Cir. 1998), the court simply applied
state tolling law without a discussion of
the rule in Suslick. If there is an
intracircuit conflict, it is on this
question, simply because Smith did not
overrule Suslick and Gonzales did not
speak to the problem. It is this
piggybacking issue to which the court
also made reference in Ashafa v. City of
Chicago, 146 F.3d 459, 463-64 (7th Cir.
1998); see also Reed v. Mokena Sch. Dist.
No. 159, 41 F.3d 1153, 1155 n.1 (7th Cir.
1994).

  Today, we take the view that only state
tolling rules ought to apply. Application
of both state and federal rules destroys
the symbiotic relationship between the
period set forth in the statute of
limitations and the tolling rule. As we
noted in Cange, the tolling rule is a
"part of the legislative balance of
conflicting interests of enforcement and
staleness of claims embodied in statutes
of limitations." 826 F.2d at 587.

  If the panel opinion were to end at this
point, I would have no objection to its
content. My colleagues have chosen,
however, to express their views on
whether state law should also govern with
respect to equitable estoppel. The
concept of equitable estoppel is not at
issue in this case. As the court
acknowledged in Ashafa, we have held that
federal, not state, standards apply when
this doctrine is applicable. Ashafa, 146
F.3d at 462; see also Smith, 951 F.2d at
841. In Cange, 826 F.2d at 586-87, and
earlier in Bomba v. W.L. Belvidere, Inc.,
579 F.2d 1067, 1070 (7th Cir. 1978), the
court noted that the concept of equitable
estoppel is not tied to the legislative
judgment on the length of the statute of
limitations. Rather, it focuses on the
circumstances that will justify
preventing a party from relying on the
statute of limitations because that
party’s conduct has induced another into
forbearing suit within the applicable
statute of limitations period. As the
court wrote in Bomba, the doctrine "takes
its life, not from the language of the
statute, but from the equitable principle
that no man will be permitted to profit
from his own wrongdoing in a court of
justice." 579 F.2d at 1070. Because this
issue is not before us and has not been
briefed by the parties, I believe that a
proper respect for the work of our
colleagues in prior cases and for the
stability of the law in this circuit
requires that we refrain from commenting
on the matter.
