REASON LEE, JAMES WASHINGTON, and MICHAEL MOORE v. Cook County, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2013, 10-2042 & 10-3026
REASON LEE, JAMES WASHINGTON, and
MICHAEL MOORE,
Plaintiffs-Appellants,
v.
COOK COUNTY, ILLINOIS, et al.,
Defendants-Appellees.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 09 C 2992, 3281 & 3282—Virginia M. Kendall and
Amy J. St. Eve, Judges.
ARGUED JANUARY 11, 2011—DECIDED MARCH 22, 2011
Before EASTERBROOK, Chief Judge, and CUDAHY and
POSNER, Circuit Judges.
EASTERBROOK, Chief Judge. Plaintiffs, three employees
of the Cook Country prison system, contend that their
employer discriminates against black workers when
making promotions. Together with nine other em-
ployees, they filed a suit under Title VII of the Civil

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2 Nos. 10-2013, 10-2042 & 10-3026
Rights Act of 1964. District Judge Castillo thought that
the 12 plaintiffs’ contentions were too disparate to justify
joint litigation. He dismissed the complaint without
prejudice and told the plaintiffs that they had 40 days
to file individual suits.
That order was entered on September 18, 2008, and the
time specified in Judge Castillo’s order expired in late
October. Reason Lee, James Washington, and Michael
Moore did not file their individual complaints until
May 14, 2009 (Moore), or May 29, 2009 (Lee and Washing-
ton). Moore’s suit was assigned to Judge Kendall; the
other two were assigned to Judge St. Eve. Both judges
dismissed the complaints as untimely. The EEOC issued
right-to-sue letters in March 2008, and recipients have
90 days to commence litigation. 42 U.S.C. §2000e-5(f)(1).
The original multi-plaintiff action, filed on May 14, 2008,
was timely. But by September it was too late to file
another. Perhaps defendants would have refrained
from protest had plaintiffs filed new actions within the
time Judge Castillo specified. But plaintiffs did not;
indeed, they took substantially more than 90 days fol-
lowing the order of September 18, 2008. Thus even if
the time was deemed tolled while the original suit was
on file, the new suits are barred by the statute of limita-
tions. So Judges Kendall and St. Eve concluded when
dismissing these suits.
This litigation has gone off the rails because of
multiple errors. The failure of Michael J. Greco, repre-
senting these three plaintiffs, to act promptly after Judge
Castillo’s order, is only one problem. It is a fatal one, as

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Nos. 10-2013, 10-2042 & 10-3026 3
we explain below, but Judge Castillo should not
have presented Greco with the opportunity to bungle his
clients’ cases away. There was nothing wrong with the
original complaint. Multiple plaintiffs are free to join
their claims in a single suit when “any question of law or
fact common to all plaintiffs will arise in the action.”
Fed. R. Civ. P. 20(a)(1)(B) (emphasis added). The common
question need not predominate; that’s a requirement
for class actions, not for permissive joinder. Whether
the Cook County prison system discriminates against
black employees when making promotions is a question
common to all plaintiffs’ claims.
If other issues predominate over the common question,
the district judge is entitled to sever the suit or order
separate trials. Fed. R. Civ. P. 20(b), 21. When a federal
civil action is severed, it is not dismissed. Instead, the
clerk of court creates multiple docket numbers for the
action already on file, and the severed claims proceed
as if suits had been filed separately. Rule 21 adds: “Mis-
joinder of parties is not a ground for dismissing an ac-
tion.” Judge Castillo’s order dismissing the original
suit and directing Greco to file new actions violated
Rule 21.
There’s a reason why Rule 21 reads as it does: When a
federal civil action is dismissed without prejudice, the
statute of limitations runs continuously. It is not reset
by the filing and dismissal as it is in some states
(including Illinois), which allow litigants a period to re-file
after a dismissal. In federal practice, by contrast, when
a suit is dismissed, “the tolling effect of the filing of the

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4 Nos. 10-2013, 10-2042 & 10-3026
suit is wiped out and the statute of limitations is deemed
to have continued running from whenever the cause of
action accrued, without interruption by that filing. In
other words, a suit dismissed without prejudice is
treated for statute of limitations purposes as if it had
never been filed.” Elmore v. Henderson, 227 F.3d 1009, 1011
(7th Cir. 2000) (citations omitted). See also Dupuy v.
McEwen, 495 F.3d 807, 810 (7th Cir. 2007); Muzikowski v.
Paramount Pictures Corp., 322 F.3d 918, 923 (7th Cir. 2003);
Newell v. Hanks, 283 F.3d 827, 834 (7th Cir. 2002). Thus
on the very date that Judge Castillo dismissed the
original suit, nominally without prejudice, it was
already too late for plaintiffs to file individual suits.
They should have appealed immediately. Although a
dismissal without prejudice nominally is not final, and
thus can’t be appealed, when the decision effectively
precludes re-filing—as it did here—it is treated as final
and appealable. Schering-Plough Healthcare Products, Inc. v.
Schwartz Pharma, Inc., 586 F.3d 500, 507 (7th Cir. 2009).
An appeal would have produced a remand with instruc-
tions to reinstate the suit in compliance with Rules 20(b)
and 21. But Greco did not appeal, the time to do so has
long passed, and the fact that an un-appealed order
dismissing a suit may have been erroneous does not
extend the time to file a replacement suit.
Greco does not contend in this court that his suits are
timely under §2000e-5(f)(1). Instead he argues that
Judge Castillo extended the statute of limitations by
granting extra time to file replacement actions. He
does not contend that these orders were valid, and they

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Nos. 10-2013, 10-2042 & 10-3026 5
weren’t. District judges lack authority to extend statutory
periods of limitations. A district judge can’t say some-
thing like: “The statute gives a plaintiff 90 days to sue,
but this is too short, so I am extending the time to
14 months.” A statute of limitations confers rights on
putative defendants; judges cannot deprive those
persons of entitlements under a statute. If a judge can’t
extend the period of limitations directly, why should
orders adding time to re-file a dismissed action be effec-
tive?
Perhaps Greco is invoking the idea that a filing with a
federal judge may be deemed timely “where a party has
performed an act which, if properly done, would [meet]
the deadline . . . and has received specific assurance by
a judicial officer that this act has been properly done.”
Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989).
(This approach no longer affects the time to file notices
of appeal. See Bowles v. Russell, 511 U.S. 205 (2007); we
need not decide its status as applied to non-jurisdic-
tional time limits.) Judge Castillo did not specifically
assure Greco that filing new complaints by May 2009
would be “properly done,” and thus induce Greco to
wait. To the contrary, Judge Castillo set several earlier
deadlines, which Greco missed. The timeline is a bit
more complex than we have given it, but Greco con-
cedes that he missed the initial deadline set by the
district court. By May 2009 the window had long closed;
Greco had taken almost five times the statutory limit
of 90 days.
It does not help to invoke the doctrine of equitable
tolling. A litigant is entitled to equitable tolling if “he

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6 Nos. 10-2013, 10-2042 & 10-3026
shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” Holland
v. Florida, 130 S. Ct. 2549, 2562 (2010), quoting from Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005). Greco did not
pursue his clients’ rights diligently—after the suit
was dismissed in September 2008, effective re-filing
took almost three times the 90 days allowed for an
initial filing—nor was dismissal without prejudice an
“extraordinary circumstance” that undermined his cli-
ents’ rights. Nothing prevented plaintiffs from ap-
pealing Judge Castillo’s order dismissing the initial suit,
or from filing new suits within the 40 days he set for
that task. Greco has never said why he did not meet
that deadline. A lawyer’s ineptitude does not support
equitable tolling. Lawrence v. Florida, 549 U.S. 327, 336
(2007). The remedy is not continued litigation against
defendants, who are entitled to stand on their right to
dismissal when the plaintiff does not file a timely suit;
the remedy is a malpractice action against the lawyer
whose negligence is responsible for the problem. See, e.g.,
Farzana K. v. Indiana Department of Education, 473 F.3d
703, 706 (7th Cir. 2007).
Plaintiffs insist that, if they tarried too long to file
individual suits, defendants took too long to invoke the
statute of limitations. Plaintiffs observe that defendants
did not present a limitations defense to the complaint
initially filed, or to their next (and swiftly dismissed)
second joint complaint in March 2009 (a document that
did not comply with Judge Castillo’s order to file individ-
ual complaints by the end of October 2008). Not until

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Nos. 10-2013, 10-2042 & 10-3026 7
responding to the complaints filed in May 2009 did the
defendants invoke the statute of limitations. But so
what? There was no reason to present a limitations
defense to the timely suit filed in May 2008, and although
the March 2009 joint complaint was untimely it was
defective for other reasons too and did not last long.
Defendants invoked their rights with dispatch in
response to the May 2009 suits; what they did or did not
do in response to earlier suits is irrelevant. Under Fed. R.
Civ. P. 12(h)(2)(C), defendants can present a limitations
defense as late as the trial, because it is not among the
matters that must be raised earlier under Rule 12(h)(1).
Like other legal contentions, the benefit of the statute
of limitations may be waived by agreement or by
conduct inconsistent with the rights it confers, but defen-
dants did not waive their right to have these untimely
suits dismissed.
Greco’s calamitous handling of this litigation in the
district court has been followed by a sloppy performance
in this court. As we’ve mentioned, Greco has never
related why he did not appeal in September 2008 or file
new suits by the end of October 2008. And his performance
has been marked by procedural gaffes, three of which
led to orders to show cause why the appeal should not
be dismissed—and one of which led to his clients’ brief
being struck.
Circuit Rule 3(c) requires counsel to file a docketing
statement within a week of the appeal. Greco failed to
file a statement until two weeks after we ordered him
to show cause why his inaction should not lead to sanc-

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8 Nos. 10-2013, 10-2042 & 10-3026
tions. We issued another order in June 2010 directing
Greco to reply to a motion to consolidate the three
appeals; he ignored our order until we issued a second
order to show cause. Then the time for him to file a
brief expired; eight days after the deadline, Greco
finally submitted a brief, together with a request for a
retroactive extension, even though Circuit Rule 26
requires motions for extra time to be filed at least a week
before the due date. The belatedly tendered brief did not
include a digital version, despite Circuit Rule 31(e).
Personnel in the clerk’s office called Greco repeatedly;
he did not return their calls. This led to the third order
to show cause, which at last prodded Greco to submit a
digital version—but the version he submitted did not
comply with the rule, because it was missing some sec-
tions. Exasperated, we struck the brief but offered to
reinstate it if Greco at last complied fully with Circuit
Rule 31(e). This order also directed Greco to show cause
why he should not be fined or otherwise disciplined
for ignoring the inquiries from the clerk’s office and
failing to comply with Rule 31(e) despite repeated requests.
Greco’s response to this last show-cause order, the
fourth in a single appeal, is consistent with his perfor-
mance throughout the litigation. It slights one of the two
subjects we directed him to address and does not tell us
why he failed to return calls from the clerk’s office and
disregarded Rule 31(e) until the third show-cause order
was issued. (He does say that “Greco has not ignored
telephone calls from this court”, which essentially accuses
the staff of the clerk’s office of lying about trying to
reach him. We think that unlikely.) And with respect to

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Nos. 10-2013, 10-2042 & 10-3026 9
the subject that it does address, Greco labels his deficient
compliance an “oversight” but does not explain why
the error was made. We do not penalize lawyers who
rely on plausible misreadings of ambiguous rules, but
Greco does not contend that Rule 31(e) is ambiguous or
offer any explanation for his failure to do what it com-
mands. Cf. Pioneer Investment Services Co. v. Brunswick
Associates Ltd. Partnership, 507 U.S. 380 (1993).
The events recounted in this opinion show that Greco
is a menace to his clients and a scofflaw with respect to
appellate procedure. The district court may wish to
consider whether he should remain a member of its bar.
Would-be clients should consider how Greco has treated
Lee, Washington, and Moore. Greco has not asked for
a hearing on the disciplinary order to show cause,
and we now conclude that he has comported himself
unprofessionally. We reprimand Greco for this unprofes-
sional behavior and fine him $5,000, payable to the
Clerk within 14 days. Greco must send Lee, Washington,
and Moore copies of this opinion so that they may
consider whether to file malpractice suits against him.
One other observation. Greco was allowed to file briefs
and deliver the oral argument on behalf of his clients
only as a result of an oversight. He is not a member of
this court’s bar. Circuit Rule 46(a) gives counsel 30 days
after the appeal is docketed to join our bar, if they are not
members already. Greco did not meet that deadline
and did not even file an application until the appeal
was well under way. Ruling on the application was
complicated by the fact that Greco was recently dis-

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10 Nos. 10-2013, 10-2042 & 10-3026
ciplined by a state court. Applications that reveal a disci-
plinary history are subjected to special scrutiny. We will
defer action on Greco’s application until he has paid the
fine. After paying, Greco must submit an affidavit estab-
lishing that he is in good standing at all bars to which
he has ever been admitted.
The judgment is affirmed, sanctions are imposed, and
directions are issued.
3-22-11

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