2020 WL 5361974

Supreme Court of Indiana.
Patrick HUMPHREY, Appellant,
v.
Brian TUCK, US Xpress, Inc., Appellees.
Supreme Court Case No. 20S-CT-548
|
Argued: May 21, 2020
|
Filed: September 8, 2020
Appeal from the Jackson Superior Court, No. 36D01-1604-CT-22, The Honorable AmyMarie Travis, Judge
Attorneys and Law Firms
ATTORNEY FOR APPELLANT: Michael W. Phelps, Phelps Legal Group, Bloomington, Indiana
ATTORNEYS FOR APPELLEES: Michael B. Langford, R. Jay Taylor, Jr., Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, Case No. 19A-CT-721
Slaughter, Justice.
*1 The amount of evidence necessary for a court to instruct a jury on a mitigation-of-damages defense is minimal, requiring only a “scintilla”. This stands in contrast to the preponderance-of-the-evidence standard required to prevail on the defense. Here, there was enough evidence to support giving the challenged instruction. We grant transfer and affirm the trial court.

I
In early February 2016, plaintiff, Patrick Humphrey, was driving from Georgia to Iowa to start a new job. While he was traveling through Indiana, a tractor-trailer sideswiped Humphrey’s rental car, and he hit his head against his car’s window. Defendant Brian Tuck, a driver for defendant US Xpress, Inc., was behind the wheel of the tractor-trailer and kept driving after the contact. Humphrey eventually flagged Tuck down, and they exchanged information and called police. When the officer arrived, he asked whether Humphrey was injured and needed assistance. Humphrey said no. He then resumed his trip to Iowa. As he was driving, Humphrey felt something in his left eye but thought it was dust.

After arriving in Iowa, Humphrey experienced more severe eye irritation and, while washing out his eye, pulled out a sliver of glass. His vision changed the next day, and he went to a local hospital. There, he was referred to an ophthalmologist, who recommended an MRI of his brain. The MRI showed a tumor on his pituitary gland, and the ophthalmologist warned that Humphrey would go blind if he did not have the tumor “taken care of”. Humphrey then returned home to Georgia by bus.

In late February, Humphrey consulted a neurosurgeon, Dr. John Vender, about the tumor, headaches, and worsening vision. Vender said the tumor was a prolactinoma, a non-cancerous tumor of the pituitary gland that secretes the hormone prolactin. Vender also said that Humphrey had a pituitary apoplexy, a rapid increase in the size of a pre-existing tumor, often triggered by a sudden event and caused by bleeding into the tumor. Vender recommended surgery and removed the tumor.

Four months later, Humphrey met with an endocrinologist, Dr. Maximillian Stachura, because Humphrey had symptoms of a hormonal imbalance. The imbalance was due to Humphrey’s low level of testosterone and his high level of prolactin. A high amount of prolactin can cause or exacerbate testosterone-related issues—including weight gain, lethargy, and low sexual drive—so Stachura prescribed medicine, bromocriptine, to lower his prolactin level. But Humphrey could not initially afford to fill the prescription. Later, after he began taking it, two things happened: his prolactin level dropped, and he experienced significant nausea. Because of this side effect, Stachura told Humphrey to stop taking the medicine and to make an appointment to find a suitable alternative. But Humphrey never made the appointment. Instead, he waited over a year to start testosterone injections. Once he began the injections, his symptoms greatly improved.

Because of the accident and its aftermath, Humphrey sued Tuck and US Xpress. He alleged the accident caused a pre-existing tumor to swell in size and asserted legal theories based on negligence, negligence per se, and respondeat superior. At trial, liability was not an issue—Tuck and US Xpress admitted fault for the accident. The only issue was damages, and Tuck and US Xpress argued that Humphrey failed to mitigate them. To support their argument at trial, Tuck and US Xpress pointed to evidence that Humphrey did not initially take the medicine prescribed for him, that it worked when he did take it, that he stopped taking it because of side effects, that he did not immediately follow up as directed to find an alternative medicine, and that despite claiming vision problems, he failed to fill an eyeglasses prescription.

*2 At the conclusion of evidence, Tuck and US Xpress asked for a jury instruction on failure to mitigate damages. Humphrey objected, arguing there was not enough evidence to justify giving the instruction. The trial court disagreed and instructed the jury:
A plaintiff must use reasonable care to minimize his damages after he is injured. The Plaintiff may not recover for any item of damage that he could have avoided through the use of reasonable care. The Defendant has the burden of proving by the greater weight of the evidence that the plaintiff failed to use reasonable care to minimize his damages. Do not consider failure to minimize damages as fault. Rather you may consider failure to minimize damages to reduce the amount of damages that the plaintiff claims.
The jury, so instructed, returned a verdict awarding Humphrey $40,000, and the trial court entered judgment on that verdict. Humphrey then filed a post-judgment motion to correct error, again arguing the mitigation instruction was unsupported by the evidence. The trial court denied the motion, and Humphrey appealed.

The court of appeals agreed with Humphrey. It noted that a failure-to-mitigate-damages defense has two elements. Humphrey v. Tuck, 132 N.E.3d 512, 516 (Ind. Ct. App. 2019), trans. granted. The first is that the plaintiff did not exercise reasonable care in mitigating post-injury damages. The second is that the plaintiff’s lack of reasonable care caused him to suffer an identifiable harm not attributable to defendant’s negligence. Id. The court of appeals found there was not sufficient evidence of the second element, so it reversed the trial court’s decision on the jury instruction. And because the jury’s verdict was general—making it impossible to know whether, or to what extent, the instruction affected the verdict—it ordered a new trial on damages. Id. at 516–17.

II

A
Trial courts generally enjoy considerable discretion when instructing a jury. Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893 (Ind. 2002). When a party challenges a trial court’s decision to give or refuse a proposed jury instruction, a reviewing court considers three things:
• Does the instruction correctly state the law?
• Is the instruction supported by evidence in the record?
• Is the instruction’s substance covered by other instructions?
Id. Only the first consideration is a legal question on which the trial court receives no deference. The other two are reviewed for an abuse of discretion. Id.

This case is about the second consideration: the amount of evidence needed to instruct the jury. We have set the evidentiary bar deliberately low because our constitution guarantees the right to a jury trial in both criminal and civil cases. Ind. Const. art. 1, §§ 13(a), 20. Consistent with these rights, “[a] party who makes a proper request is entitled to have an instruction based upon his own theory of the case if within the issues and there is any evidence fairly tending to support it.” Lavengood v. Lavengood, 225 Ind. 206, 211, 73 N.E.2d 685, 687 (1947) (citing Carpenter v. State, 43 Ind. 371, 373 (1873)) (emphasis added). This “any evidence” standard applies to instructions for both claims and defenses. See id. at 210–12, 73 N.E.2d at 687 (discussing plaintiff’s instructions to support his claim); Indianapolis Horse Patrol, Inc. v. Ward, 247 Ind. 519, 525, 217 N.E.2d 626, 629 (1966) (noting defendants’ instructions to support their qualified-privilege defense).

*3 For example, in Hernandez v. State, 45 N.E.3d 373 (Ind. 2015), a criminal case, we held it was reversible error for the trial court to refuse the defendant’s proposed instruction on the defense of necessity. In describing the applicable evidentiary standard for instructing the jury, we referred interchangeably to the minimal requirements of “some” evidence and a “scintilla” of evidence.
Thus, after reviewing the record, it appears that there is at least some evidence supporting each element of the necessity defense. Even if there is only a “scintilla” of evidence in support of a criminal defendant’s proposed defense instruction, it should be left to the province of the jury to determine whether that evidence is believable or unbelievable.
Id. at 378 (emphasis added). A jury should hear a tendered instruction if the record, though “meager”, contains “any facts or circumstances” pertinent to the case. Reed v. State, 141 Ind. 116, 122–23, 40 N.E. 525, 527 (1895). The reverse is also true. A trial court may refuse a jury instruction only when “[n]one of the facts” in the record would support the legal theory offered in the instruction. Sims v. Huntington, 271 Ind. 368, 373, 393 N.E.2d 135, 139 (1979).

Thus, under Indiana law, the party seeking an instruction need only produce some evidence—a “scintilla”—of each element of the underlying claim or defense. See, e.g., id. at 373, 393 N.E.2d at 139. There is an important symmetry here. No party—neither plaintiff nor defendant—need affirmatively prove its claim or defense before the trial court instructs the jury on the issue. The party need only point to some evidence in the record that when viewed most favorably would suffice for a reasonable juror to decide the issue in the party’s favor.

B
We turn next to the affirmative defense at issue here—failure to mitigate damages. Our leading case on this defense is Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006), a personal-injury case. There, we explained that tort plaintiffs must mitigate post-injury damages; otherwise, the damages they can recover are reduced “by those damages which reasonable care would have prevented.” Id. at 1187 (citing Kocher v. Getz, 824 N.E.2d 671, 674 (Ind. 2005)). Thus, a plaintiff’s failure to mitigate damages is not an affirmative defense to liability; it merely reduces the damages the plaintiff may recover. Id. In other words, the defense concerns not a defendant’s liability but a claimant’s actions or omissions that worsen the claimant’s injuries. Id.

The defense has two elements, and to prevail the defendant must prove each element by a preponderance of the evidence. Id. at 1188. The first is that the plaintiff did not exercise reasonable care in mitigating post-injury damages. Id. The second is that the failure to exercise reasonable care caused the plaintiff to suffer harm beyond that attributable to the defendant’s negligence. Id. When the defense is that the plaintiff did not follow medical advice, thus aggravating his own injuries, the defendant must prove the plaintiff’s neglect caused him “to suffer a discrete, identifiable harm arising from that failure, and not arising from the defendant’s acts alone.” Id.

Proving such causation often will require expert medical testimony, but not always. Id. In Willis, we rejected a bright-line rule that would have required expert testimony across the board. Instead, we held that whether to give such a failure-to-mitigate instruction must be decided on a “case-by-case basis.” Id. at 1189. In each case, after the close of evidence, the trial court must determine whether the defendant “produced enough evidence of causation” to support an instruction on the mitigation-of-damages defense. Id. In answering that question, the court should consider whether the medical issue is within the “common experience, observation, or knowledge of laymen.” Id. (citation omitted). “If it is, and the defendant has produced competent non-expert evidence of causation,” then the lack of expert testimony “does not preclude an instruction on failure to mitigate.” Id.

C
*4 Last, we consider whether the court below erred by instructing the jury on the failure-to-mitigate defense. Humphrey’s only objection is that the instruction is not supported by the evidence. We disagree and hold there was no error because the instruction finds support in this record.

Here, as in Willis, the failure-to-mitigate defense is based on Humphrey’s having ignored the advice of his treating physician. Humphrey concedes there is evidence on the defense’s first element—namely, that he did not exercise reasonable care to mitigate his post-injury damages. Willis, 839 N.E.2d at 1188. But on the second element, Humphrey argues that Tuck and U.S. Express failed to offer evidence that Humphrey’s lack of reasonable care caused him greater injury than he would have suffered had he followed his doctor’s orders. According to Humphrey, no one—neither medical experts nor lay witnesses—testified that his ignoring his physician’s advice “increased his harm” by any identifiable, quantifiable amount. The issue, though, is not only whether Humphrey’s failure to follow orders “increased” his harm but also whether it prolonged the suffering of which he complains—and which he attributes to defendants’ negligence—in any discrete, measurable way.

Recall that Humphrey’s theory of the case is that a preexisting pituitary tumor became “apoplectic”—it swelled—due to trauma from the accident. According to Humphrey, the trauma caused physical symptoms for which he sought damages, including “acute vision loss” and elevated prolactin levels that led to truncal obesity, fatigue, and low libido. On the issue of damages, defendants argued that to the extent their negligence harmed Humphrey, he did not exercise reasonable care in mitigating that harm. And they pointed to evidence in the record that Humphrey’s own failings either aggravated his injuries or prolonged them. In other words, defendants say, Humphrey would have suffered less had he done more.

We agree with Tuck and U.S. Xpress that there was sufficient evidence to support instructing the jury on their defense of failure to mitigate damages. As to Humphrey’s vision, he testified that he had no vision problems before the accident. Since the accident, he complains of vision problems that, he says, limit his ability to drive a vehicle; make it harder for him to see at night, especially if it is raining; and affect his ability to read signs and see peripherally. Yet even with these vision issues, Humphrey has not worn corrective eyeglasses or contacts—despite having a prescription for glasses that he never filled. For the past year, he did not return to the optometrist to get a new prescription, despite acknowledging that new glasses “may” help his vision. And he conceded that he made an appointment to see an optometrist about getting new glasses for his eyesight. Under our minimal standard for instructing the jury, this is enough evidence to allow a lay jury to consider whether Humphrey’s vision would have improved had he either filled an existing prescription for eyeglasses or obtained a new prescription.

As to Humphrey’s hormonal imbalance, the record shows that Dr. Stachura prescribed bromocriptine to reduce Humphrey’s prolactin level. This level, if left untreated, can cause or exacerbate testosterone-related issues, including the low-energy issues of which Humphrey complains. Yet Humphrey did not immediately begin taking bromocriptine. Later, when he took it consistently, “his prolactin levels had decreased significantly.” Humphrey, 132 N.E.3d at 516. But Stachura also testified that Humphrey stopped taking the bromocriptine because of nausea, that Humphrey was told to follow up to fix the problem, but that he did not. Once Humphrey eventually began the alternative treatment of testosterone injections—a year and a half after stopping the bromocriptine—his symptoms improved. When asked on cross-examination whether the testosterone injections were helping, Humphrey said they “help[ed] in a lot of ways”, and that he had already noticed improvement. As with Humphrey’s vision, this evidence, viewed most favorably for defendants, would allow a reasonable juror to conclude that Humphrey’s continuing symptoms qualified as an identifiable harm attributable not to defendants’ negligence but to his failure to follow his doctor’s orders. No more is required to instruct the jury.

*5 Our opinion in Willis teaches that a defendant is entitled to a failure-to-mitigate instruction if the evidence would support a finding that the plaintiff’s own actions or omissions failed to mitigate his own harm by any “quantifiable amount or specific item.” 839 N.E.2d at 1190. The requirement of a “quantifiable” harm does not mean the defendant must prescribe a specific numerical value to the plaintiff’s increased or prolonged harm. The respective burdens on plaintiffs and defendants are symmetric—a defendant’s burden is no greater than a plaintiff’s. Just as Humphrey did not need to quantify his request for damages to any degree of mathematical precision, neither did Tuck and U.S. Xpress need to do so on their defense. In both cases, it was up to the jury to determine whether, and to what extent, Humphrey was injured due to the defendants’ negligence and, likewise, whether, and to what extent, Humphrey failed to mitigate his own damages.

* * *
For these reasons, the trial court did not abuse its discretion in giving the failure-to-mitigate instruction. Thus, we affirm its judgment, including its denial of Humphrey’s motion to correct error.

Rush, C.J., and David, Massa, and Goff, JJ., concur.
All Citations
— N.E.3d —-, 2020 WL 5361974

2020 WL 5365976

United States District Court, N.D. Illinois, Eastern Division.
WILLIAM KLERONOMOS, Plaintiff,
v.
AIM TRANSFER & STORAGE INC., and WILLIAM T. SACKMAS- TER, Defendants.
No. 19 C 01844
|
09/08/2020

MARY M. ROWLAND, United States District Judge

MEMORANDUM OPINION & ORDER
*1 Plaintiff William Kleronomos sued Defendants Aim Transfer & Storage Inc. (“Aim”) and William Sackmaster for injuries arising out of a vehicle accident. Plaintiff brought suit for negligence (Count I) and vicarious liability (Count II). Several years after the suit was first filed, Plaintiff amended his complaint, seeking punitive dam-ages for alleged willful and wanton conduct related to Aim’s employment relationship with Sackmaster. Those counts are willful and wanton hiring (Count III), willful and wanton entrustment (Count IV), and willful and wanton retention (Count V). (Dkt. 100). Aim moves to dismiss on statute of limitations grounds. (Dkt. 123). For the rea-sons set forth below, Aim’s motion to dismiss [123] is denied.

BACKGROUND
Plaintiff Kleronomos is an Illinois citizen. Defendant Aim is a Wisconsin trucking company, and Defendant Sackmaster is a Wisconsin citizen. At some point before March 6, 2014, Aim hired Sackmaster as a truck driver. (Dkt. 100, ¶ 3). On March 6, 2014, while Sackmaster was driving a truck as part of his employment with Aim, Sackmaster and Kleronomos were involved in a vehicle accident in Chicago, Il-linois. (Id. at ¶¶ 8, 15). Kleronomos suffered extensive injuries. (Id. at ¶ 16).

On March 2, 2016, Plaintiff filed a personal injury lawsuit against Aim and Sackmaster in Illinois state court. (Dkt. 123, Ex. A). In the state court complaint, Plaintiff alleged general negligence against Aim and Sackmaster as its agent. (Id.). On February 19, 2019, Plaintiff voluntarily dismissed his state court case pursuant to Illinois statute 735 ILCS 5/2-1009. (Dkt. 123, Ex. B). Plaintiff refiled his state court case on February 20, 2019. (Dkt. 123, Ex. C). Defendant then removed the case to this Court on March 15, 2019, asserting diversity jurisdiction. (Dkt. 1). On April 9, 2019, Plaintiff filed his First Amended Complaint. (Dkt. 15). The Amended Complaint added a third count for willful and wanton conduct arising out of Aim’s employment relationship with Sackmaster. Several months later, on October 15, 2019, Plaintiff Amended Count III in a Second Amended Complaint to seek punitive damages. (Dkt. 53).

Finally, On December 31, 2019, Plaintiff filed a Third Amended Complaint as-serting three separate willful and wanton counts: willful and wanton hiring (Count III), willful and wanton entrustment (Count IV), and willful and wanton retention (Count V). (Dkt. 100). In those Counts, Plaintiff alleges that Aim knew Sackmaster was unfit to drive a truck commercially based on evaluations and reviews from former employers, the fact that Sackmaster had failed multiple drug tests while on duty with Aim, Sackmaster had several “at fault” automobile accidents while working for Aim, had been terminated by Aim for chronic drug use and then rehired in violation of Aim’s own policies, and had repeatedly “ ‘blacked out on the road’ and experienced a ‘loss of consciousness behind the wheel….’ ” (Dkt. 100, Count IV ¶ 16 and Count V ¶ 16).

Before the Court is Aim’s motion to dismiss Count III, Count IV, and Count V as time-barred. (Dkt. 123).

LEGAL STANDARD
*2 A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide de-fendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ash-croft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)). In apply-ing this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inference in favor of the non-moving party. Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2012).

DISCUSSION

1) Choice of Law
A federal court sitting in diversity applies state law. West Side Salvage, Inc. v. RSUI Indemnity Co., 878 F.3d 219, 223 (7th Cir. 2017). Aim haphazardly cites to both Wisconsin and Illinois law, without clearly arguing why Wisconsin law should apply to this case. The only arguments provided by Aim are found in a single footnote in its reply brief, in which Aim appears to concede that Illinois law applies to Counts I and II, but states that Wisconsin law applies to Counts III, IV, and V because Wisconsin has the most significant relationship to the employment relationship. (Dkt. 135, fn. 3).1 Plaintiff argues that Aim has failed to demonstrate a conflict warranting a choice of law analysis. (Dkt. 140).

“A district court is required to engage in a choice of law analysis only ‘if there is a conflict between Illinois law and the law of another state such that a difference in law will make a difference in the outcome.’ ” Board of Forensic Document Examin-ers, Inc. v. American Bar Assoc., 922 F.3d 827, 831 (7th Cir. 2019) (citing West Side Salvage, 878 F.3d at 223). It is incumbent on Aim, “as the party seeking a choice of law determination, to ‘establish the existence of an outcome-determinative conflict.’ ” Id. Aim has failed to do so. Aim has identified that the relevant statute of limitations period in Illinois and Wisconsin is different—two years and three years, respec-tively—but Aim asserts that either limitations period should lead to the same result. Thus, Aim has not identified a conflict. Additionally, Aim has not demonstrated any conflicts regarding the substantive law, such as application of the statute of limita-tions, the states’ respective relation-back doctrines, or the underlying, substantive employment claims. Because Aim has not met its burden, the Court applies the law of the forum state, Illinois. Id. (“If the party fails to establish the existence of [ ] a conflict, the court applies the law of the forum state.”).

2) Statute of Limitations
*3 Aim moves to dismiss Counts III, IV, and V as time barred. In Illinois, the relevant limitations period is two years. 735 ILCS 5/13-201; (Dkt. 135, fn. 1). The limitations period began to run on March 6, 2014, when the accident occurred. See State Farm Fire & Cas. Co. v. John J. Rickhoff Sheet Metal Co., 914 N.E.2d 577, 593 (Ill.App. 2009) (tort cause of action generally accrues at the time of injury). The two year limitations period expired, therefore, on March 6, 2016. However, Plaintiff did not add the willful and wanton conduct claims until April 9, 2019, over five years after the March 6, 2014 accident. Plaintiff’s state law claims are barred unless they can be saved through application of either the relation-back rule of Fed. R. Civ. P. 15(c),2 or equitable tolling, see, e.g., Donald v. Cook Cnty. Sheriff’s Dep’t, 95 F.3d 548, 561-62 (7th Cir. 1996).3

Federal Rule of Civil Procedure 15(c)(1)(A) provides that an amendment to a pleading relates back to the date of the original pleadings when “the law that provides the applicable statute of limitations allows relation back.” Fed. R. Civ. P. 15(c)(1)(A). The Rules Advisory Committee added Rule 15(c)(1)(A) to “make…clear that [Rule 15] does not apply to preclude any relation back that may be permitted under the appli-cable limitations law.” Fed. R. Civ. P. 15, Advisory Comm. Notes 1991. Here, the ap-plicable limitations law is Illinois law. Section 2-616(b) of the Illinois Civil Procedure Code codifies a rule for relation back of newly asserted claims that is essentially the same as the federal rule. See Henderson v. Bolanda, 253 F.3d 928, 933 (7th Cir. 2001). The Rules Advisory Committee directs court to look to the “controlling body of limi-tations law”—not merely the legal test for relation back. Fed. R. Civ. P. 15, Advisory Committee Notes 1991. “[I]f that law affords a more forgiving principle of relation back than the one provided in [the federal] rule, it should be available to save the claim.” Id.

Porter v. Decatur Memorial Hospital, 882 N.E.2d 583 (Ill. 2008), involved a similar situation in which a plaintiff sought to amend the complaint by adding new facts and an additional defendant. The original complaint was against the plaintiff’s treating physician. Plaintiff later joined the hospital, and later still, sought to add a negligence claim against the treating radiologist. Id. at 586. The hospital objected to the proposed amendment, arguing that the new negligence claim was barred by the two-year statute of limitations. Id. at 587. The Court rejected the argument, stating “[t]he purposes of the relation-back doctrine of section 2-616(b) is to preserve causes of action against loss by reason of technical default unrelated to the merits. Courts should therefore liberally construe the requirements of section 2-616(b) to allow res-olution of litigation on the merits and to avoid elevating question of form over sub-stance.” Id. at 589-90. The Illinois Supreme Court then adopted the “sufficiently close relationship test,” pursuant to which, if “there is a ‘sufficiently close relationship’ be-tween the original and new claims, both in temporal proximity and the general char-acter of sets of factual allegations and where the facts are all part of the events lead-ing up to the originally alleged injury,” relation back will apply. Id. at 592. The court thus concluded that the proposed amendment satisfied the test and should have been allowed. Id.; see also White, 2016 WL 4270152, at *14 (new allegations regarding a negligent supervision claim had a “sufficiently close relationship” to the plaintiff’s original excessive force claim such that relation back was appropriate); Buie v. Ste-phen Woolway, No. 98 C 2554, 2000 WL 528645, at * (N.D. Ill. Mar. 27, 2000) (new allegations regarding products liability and negligent rental related back to plaintiff’s original claims regarding negligent driving after a vehicle accident).

*4 Here, Aim argues that Counts III, IV, and V are time-barred because the con-duct at issue—the hiring, entrustment, and retention of Sackmaster—does not have a sufficiently close relationship with the original negligence claims. Aim further ar-gues that Counts I and II only involve Sackmaster’s driving on the day of the accident, whereas Counts III, IV, and V involve Sackmaster’s medical and employment history.

The Court disagrees with Aim’s arguments and finds that there is a “suffi-ciently close relationship” between Plaintiff’s original negligence claim and his new willful and wanton hiring, entrustment, and retention claims, both in temporal prox-imity and in the general character of the factual allegations applicable to both. More-over, the facts applicable to Plaintiff’s employment claims are part of the events lead-ing up to the incident in which Plaintiff was injured by Sackmaster’s negligent driv-ing. As evidenced by Porter, Aim’s overly technical argument that Plaintiff’s employ-ment claims are separate and distinct from his original negligence claims does not pass muster under Illinois’ relation-back jurisprudence.4 Aim’s statute of limitations argument must therefore be rejected.5

CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss (Dkt. 123) is de-nied.
E N T E R:

Dated: September 8, 2020

MARY M. ROWLAND

United States District Judge
All Citations
Slip Copy, 2020 WL 5365976

Footnotes

1
Plaintiff’s motion to file a sur-reply protests that Aim has “engaged in gamesmanship” with its choice of law arguments. (Dkt. 140). Aim had previously filed a choice of law motion, but withdrew that mo- tion the day after Plaintiff filed his response brief. (Dkt. 125; Dkt. 132). Plaintiff’s further note that Aim’s first motion to dismiss (Dkt. 116), since withdrawn, contained a choice of law section—a section conspicuously absent from the current motion. Then, in Aim’s reply brief, Aim exclusively relies on Wisconsin law. However, in the current briefing before the Court, Aim merely cites to both Wisconsin and Illinois law at whim, with the only arguments appearing in a single footnote. (Dkt. 135, fn. 3).

2
The Federal Rules of Civil Procedure govern whether the amendment of a complaint relates back to the original complaint, even if jurisdiction is based on diversity of citizenship. See White v. City of Chicago, No. 14 C 3720, 2016 WL 4270152, at *11 fn. 18 (N.D. Ill. Aug. 15, 2016) (citing Household Commercial Fin. Servs., Inc. v. Trump, 863 F.Supp. 735, 741 (N.D. Ill. 1994)).

3
Both parties’ arguments regarding the statute of limitations are unclear, underdeveloped, and light on legal citations. It is not the role of the Court to conduct research and construct legal arguments for the parties. Duehning v. Aurora E. Unified School Dist. 131, No. 13 C 5617, 2015 WL 500876, at *3 (N.D. Ill. 2015) (a court is not required to conduct legal research and construct arguments for a repre- sented party); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (Judges are not “like pigs, hunting for truffles buried in briefs”).

4
Furthermore, it is unrealistic to expect Plaintiff to bring counts relating to the employment relation- ship before meaningful discovery. It was only after discovery in late 2018 that Plaintiff discovered Sackmaster’s drug abuse, previous accidents, poor performance evaluations, firing and re-hiring by Aim, and that Sackmaster had previously “blacked out” behind the wheel. (Dkt. 154, 11); see Dual- Temp of Ill., Inc. v. Hench Control Corp., No. 9 C 595, 2009 U.S. Dist. LEXIS 89088, at *17 (N.D. Ill. Sep. 28, 2009) (citing United States ex. rel Robinson v. Northrop Corp., 149 F.R.D. 142, 145-46 (N.D. Ill. 1993) (plaintiffs are “not obligated to plead specific facts when those facts are ‘peculiarly within the defendant’s knowledge and control’ ”).

5
Having determined that relation back under Rule 15(c)(1)(A) saves Plaintiff’s claims, the Court de- clines to address Plaintiff’s arguments regarding equitable tolling. (Dkt. 154).