John Vergara v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1266
JOHN VERGARA, et al.,
Plaintiffs-Appellants,
v.
C ITY OF C HICAGO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15-cv-02407 — Andrea R. Wood, Judge.
____________________
A RGUED A PRIL 17, 2019 — DECIDED S EPTEMBER 30, 2019
____________________
Before M ANION , S YKES, and BRENNAN , Circuit Judges.
S YKES, Circuit Judge. John Vergara, Carlos Ruiz, and Jose
Garcia filed a civil-rights lawsuit against the City of Chicago
and Chicago Police Officers John Dal Ponte, Boonserm
Srisuch, and Perry Nigro. The defendants moved to dismiss
the suit as untimely. The plaintiffs asked the district judge to
equitably estop the defendants from raising the limitations
defense, claiming that the officers intimidated them into
silence.

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2 No. 18-1266
The judge dismissed the suit in a minute order saying she
would later file an opinion explaining her reasons. The
promised opinion came almost two years later, and the
plaintiffs then appealed. Under the Rules of Appellate
Procedure, however, entry of judgment for appeal purposes
occurred 150 days after the judge’s minute order, see F ED. R.
A PP. P. 4(a)(7)(A), and the 30-day time to file a notice of
appeal ran from that date, see Walker v. Weatherspoon,
900 F.3d 354, 356 (7th Cir. 2018). The appeal was therefore
woefully late.
The defendants noted the untimeliness problem in their
docketing statement, but this filing too was quite late. Our
circuit’s rules require the appellee to identify errors in the
appellant’s docketing statement within 14 days. 7TH C IR .
R. 3(c)(1); see Hamer v. Neighborhood Hous. Servs. of Chi.,
897 F.3d 835, 839 (7th Cir. 2018). The defendants missed that
deadline by about six months.
After disentangling this procedural web, we decline to
dismiss the appeal. The defendants’ objection to the Rule 4(a)
violation came too late under Circuit Rule 3(c)(1). But the
suit is untimely, and our precedent forecloses the plaintiffs’
equitable estoppel theory. We affirm.
I. Background
This case comes to us from a dismissal on the pleadings,
so we accept the following facts from the plaintiffs’ com-
plaint as true. See Price v. City of Chicago, 915 F.3d 1107, 1109
(7th Cir. 2019). In September 2011 Chicago Police Officers
Dal Ponte, Srisuch, and Nigro stopped and searched the
plaintiffs without justification and took them to Homan
Square, a notorious police warehouse that was later exposed

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No. 18-1266 3
as a den of police misconduct. There the officers interrogated
the plaintiffs for eight or nine hours, omitting Miranda
warnings and ignoring their repeated requests for an attor-
ney. The plaintiffs were denied food, water, and access to a
bathroom, and the officers tried to coerce false confessions
from them. The officers also threatened to file false charges
against the plaintiffs if they told anyone about their mis-
treatment at Homan Square.
The plaintiffs were released only after they agreed to
keep quiet about what had happened. Over the next two
weeks, the officers told the plaintiffs they “were watching”
them. Fearing for their safety, the plaintiffs did not seek legal
redress for this police misconduct.
In early 2015 the Guardian newspaper ran an exposé on
Homan Square, and at that point the plaintiffs felt secure
enough to speak to an attorney. In March they sued the City
and the three officers under 42 U.S.C. § 1983 alleging a raft of
constitutional violations. But the suit came three and a half
years after their detention, so the defendants moved to
dismiss it as untimely under the applicable two-year statute
of limitations.
On March 31, 2016, the district judge issued a minute or-
der dismissing the suit “[f]or the reasons stated in the Mem-
orandum Opinion and Order to follow.” The judge issued
her opinion almost two years later, on January 31, 2018,
together with a Rule 58 judgment. See F ED. R. C IV. P. 58(a). On
February 6, 2018, the plaintiffs filed their notice of appeal
and docketing statement.
By then, however, the time to appeal had long since ex-
pired. A notice of appeal is due 30 days after entry of the

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4 No. 18-1266
judgment or order appealed from, but when the district
court omits a separate Rule 58 judgment, “entry” occurs
150 days after the judgment or order is entered on the court
docket. See F ED. R. APP. P. 4(a)(7)(A). Here the judge dis-
missed the case by minute order entered on March 31, 2016.
By operation of Rule 4(a)(7)(A), that order was deemed
“entered” for appeal purposes 150 days later, and the time to
file a notice of appeal expired 30 days after that.
On August 17, 2018, the defendants filed their docketing
statement noting the untimeliness problem and moved to
dismiss the appeal. We directed the parties to brief the
dismissal motion with the merits.
II. Discussion
We begin by untangling the procedural snarl. Under
Rule 4(a) of the Federal Rules of Appellate Procedure, the
plaintiffs had to file a notice of appeal within “30 days after
entry of the judgment or order appealed from.” F ED. R. A PP.
P. 4(a)(1)(A). Rule 4(a) also specifies how to calculate the
date of “entry.” For most civil judgments, including this one,
the date of entry is the earlier of (1) the day “the judgment …
is set forth on a separate document” in accordance with
Rule 58(a) of the Federal Rules of Civil Procedure, or
(2) “150 days … from entry of the judgment or order in the
civil docket.” F ED. R. A PP. P. 4(a)(7)(A).
The February 6, 2018 notice of appeal was clearly untime-
ly under these rules. The judge dismissed the case by minute
order on March 31, 2016. Her opinion explaining her reasons
came two years later—on January 31, 2018—along with a
Rule 58 judgment. Because of this unusual gap, the dismissal
order’s date of entry was 150 days after March 31, 2016—or

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No. 18-1266 5
August 29, 2016. The plaintiffs had 30 days from that date to
appeal. The notice of appeal came a year and a half later.
The question is whether the plaintiffs’ procedural misstep
requires dismissal of the appeal. Rule 4(a) is not jurisdiction-
al, but it is a mandatory claim-processing rule, see Walker,
900 F.3d at 356, which means that it “must be enforced” if it
is “properly invoked,” Hamer v. Neighborhood Hous. Servs. of
Chi., 138 S. Ct. 13, 17 (2017). Still, we have emphasized that
“[t]he ‘properly invoked’ qualifier is important, for a litigant
may … forfeit the benefit of these rules.” Walker, 900 F.3d at
356.
That’s exactly what the plaintiffs accuse the defendants of
doing. The plaintiffs argue that the defendants forfeited their
objection by failing to comply with our circuit rules. Circuit
Rule 3(c)(1) requires that if an appellant’s docketing state-
ment “is not complete and correct, the appellee must pro-
vide a complete one to the court of appeals clerk within
14 days after the date of the filing of the appellant’s docket-
ing statement.” The defendants didn’t comply with this
deadline. They delayed filing their corrective docketing
statement until August 17, 2018—six months after the plain-
tiffs filed theirs—only then drawing our attention to the
untimeliness problem.
We think the plaintiffs have a good point about forfei-
ture. Cf. Walker, 900 F.3d at 357 (holding that parties can
waive arguments through docketing statements); Hamer,
897 F.3d at 840 (holding the same). As a “time limitation
found in a procedural rule,” Circuit Rule 3(c)(1) is a claim-
processing rule. In re Wade, 926 F.3d 447, 449 (7th Cir. 2019)
(quotation marks and alteration omitted). We may enforce
our rules through waiver and forfeiture doctrine. See Walker,

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6 No. 18-1266
900 F.3d at 357 (“Enforcing waivers and forfeitures gives
litigants incentives to explore issues themselves rather than
wait for the court to do the work. It is best to have defects
detected in time to dismiss the appeal without the need for
briefs and argument.”).
The defendants forfeited their Rule 4(a) objection by
missing the deadline specified in Circuit Rule 3(c)(1). The
rule gave them 14 days to correct the record if the plaintiffs’
docketing statement wasn’t “complete and correct.” And the
plaintiffs’ docketing statement wasn’t correct. A docketing
statement must include “[t]he date of entry of the judg-
ment … sought to be reviewed.” 7TH C IR . R. 28(a)(2)(i). The
plaintiffs incorrectly reported the date of entry as January 31,
2018. As we’ve explained, the correct date of entry is
August 29, 2016. Under Circuit Rule 3(c)(1), the defendants
had to correct the record within 14 days. They waited six
months. That’s enough for forfeiture.
To be sure, we can suspend our rules for “good cause.”
7TH C IR . R. 2. So Circuit Rule 3(c)(1) isn’t a mandatory claim-
processing rule like Rule 4(a). See Nutraceutical Corp. v.
Lambert, 139 S. Ct. 710, 714 (2019) (stating that whether a
claim-processing rule is mandatory turns “on whether the
text of the rule leaves room for … flexibility”). But the
defendants haven’t given us good cause to suspend the rule.
Disrupting an otherwise orderly appeal with an untimely
objection in the middle of briefing is a proper ground to
enforce forfeiture. By not following our rules, the defend-
ants’ objection “just complicated the appeal.” Walker,
900 F.3d at 357. We deny the motion to dismiss the appeal.
That brings up the merits. We review a dismissal order
de novo. Ochoa v. State Farm Life Ins. Co., 910 F.3d 992, 994

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No. 18-1266 7
(7th Cir. 2018). “[A] motion to dismiss based on failure to
comply with the statute of limitations should be granted
only where the allegations of the complaint itself set forth
everything necessary to satisfy the affirmative defense.” Chi.
Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613–
14 (7th Cir. 2014) (quotation marks omitted).
The plaintiffs’ complaint fits that description. Indeed, the
plaintiffs don’t dispute that their lawsuit is untimely. They
instead invoke equitable estoppel, which bars a limitations
defense if “the defendant took active steps to prevent the
plaintiff from suing in time, such as by hiding evidence or
promising not to plead the statute of limitations.” Lucas v.
Chi. Transit Auth., 367 F.3d 714, 721 (7th Cir. 2004) (quotation
marks and alteration omitted). To raise equitable estoppel,
the plaintiff must actually and reasonably rely on the other
party’s actions. Rager v. Dade Behring, Inc., 210 F.3d 776, 779
(7th Cir. 2000).
The plaintiffs contend that police intimidation can justify
equitable estoppel. We have repeatedly disagreed: “[A]
threat to retaliate is not a basis for equitable estoppel.” Beckel
v. Wal-Mart Assocs., Inc., 301 F.3d 621, 624 (7th Cir. 2002);
accord Shanoff v. Ill. Dep't of Human Servs., 258 F.3d 696, 702
(7th Cir. 2001). “To allow the use of retaliation as a basis for
extending the statute of limitations would … distort the
doctrine of equitable estoppel.” Beckel, 301 F.3d at 624.
The plaintiffs’ theory—that the officers’ threats intimidat-
ed them into silence until the Guardian’s exposé provided “a
newfound sense of security”—suffers from the same defi-
ciencies as other retaliation claims. Most importantly, it
would significantly expand our equitable-estoppel doctrine
without a limiting principle. It allows retaliatory threats to

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8 No. 18-1266
indefinitely extend the time to sue. But the protection offered
by equitable estoppel ends when “the circumstance giving
rise to the estoppel is removed.” Shropshear v. Corp. Counsel of
Chi., 275 F.3d 593, 597 (7th Cir. 2001). The problem with the
plaintiffs’ argument is readily apparent: They contend that
the officers’ threats, which stopped two weeks after the
alleged constitutional violations, tolled the limitations
period for the next three and a half years.
Statutes of limitations “serve the important purpose of
encouraging the prompt filing of claims and by doing so of
enhancing the likelihood of accurate determinations and
removing debilitating uncertainty about legal liabilities.”
Shanoff, 258 F.3d at 703 (quotation marks omitted). Extending
equitable estoppel to this case would permit plaintiffs to
avoid the limitations period for § 1983 claims indefinitely by
alleging an episode of official intimidation. We cannot
endorse such an expansion of the doctrine. See id. at 702
(“[T]he Supreme Court has emphasized that we must seri-
ously recognize and apply statutes of limitations.”).
In short, the suit is untimely, equitable estoppel does not
apply, and the judge was right to dismiss the case.
A FFIRMED

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