Rixson Merle Perry v. John Sullivan

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2508
Rixson Merle Perry,
Plaintiff-Appellant,
v.
John Sullivan,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 5899--Joan B. Gottschall, Judge.
Argued February 7, 2000--Decided March 14, 2000
Before Kanne, Rovner and Evans, Circuit Judges.
Kanne, Circuit Judge. Two years and a month
after a traffic accident that caused the
plaintiff, Rixson Perry, to incur some legal
difficulty, he filed a one-count lawsuit claiming
that a false arrest violated his civil rights.
The statute of limitations for such claims
requires the complaint to be filed within two
years, and the defendant, Police Officer John
Sullivan, eventually moved for dismissal on that
ground. We say "eventually" because the motion to
dismiss did not come until two more years had
passed since the accident. In a show of chutzpah,
Perry argued that Sullivan waited too long to
have Perry’s suit thrown out. The district court
held that a statute of limitations defense
asserted in the defendant’s first answer to the
complaint has not been waived even though
significant time has elapsed since the filing of
the complaint. We agree and affirm the district
court’s dismissal of Perry’s claim.
I. History
The animosity between Perry and the Village of
Arlington Heights, for whom Sullivan worked,
stretches back to 1992 when the village towed
Perry’s 1975 Ford LTD from a private parking lot.
The village believed Perry’s vintage automobile
to be abandoned and towed it pursuant to a
municipal ordinance. Perry took umbrage at such

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treatment of his beloved LTD and sued the
village, claiming that the removal of the
properly licensed and legally parked car without
prior notice to its owner deprived him of his
Fourteenth Amendment right to due process. The
district court agreed and struck down the
ordinance as unconstitutional. Perry v. Village
of Arlington Heights, 905 F.Supp. 465 (N.D. Ill.
1995)./1
On August 7, 1994, as his case progressed
toward summary judgment, Perry was involved in a
traffic accident in Arlington Heights. Sullivan
arrived at the scene. What transpired between
Sullivan and Perry is a matter of strong
disagreement, but in the end, Sullivan issued
Perry a ticket and required him to drive himself
to the police station and post bond. Perry spent
about an hour at the station dealing with the
paperwork. Whether that hour constituted an
arrest, as Perry contended, and whether animosity
toward Perry over the pending lawsuit motivated
Officer Sullivan, we need not address. It is
sufficient for purposes of this appeal that all
parties agree on the date of the "arrest," which
they do. Perry, who is no stranger to
jurisdictional standing problems, see footnote 1
supra, alleged that Sullivan threatened him at
the accident scene by saying, "Every cop in this
town is out to get you. If you want to stay
healthy, in one piece and out of jail, either
drop your lawsuit against us or stay out of
Arlington Heights."
On September 13, 1996, Perry filed a one-count
complaint against Sullivan, alleging false
arrest. Without causing the complaint to be
served, Perry filed a three-count complaint on
September 18, 1996, naming Sullivan and Arlington
Heights as defendants. The amended complaint,
filed pursuant to 42 U.S.C. sec. 1983, alleged
that Sullivan and the village deprived Perry of
various civil liberties by falsely arresting and
prosecuting him. Sullivan and the village moved
to dismiss the amended complaint for failure to
state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, and District Judge Joan
Gottschall granted the motion without prejudice.
Perry then filed a second amended complaint,
alleging two counts of constitutional violations.
First, Perry alleged that Sullivan denied him due
process by falsely certifying the information in
the traffic ticket. Second, he alleged that
Sullivan’s threat denied him the right to seek
redress in the federal courts. Judge Gottschall
ordered Sullivan to respond to the claims that
Perry was denied due process by being cited
without probable cause and deterred from
accessing the federal courts.

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Sullivan responded with a motion to dismiss,
arguing that the second amended complaint failed
to state a claim because the Fourteenth Amendment
does not require a full investigation prior to an
arrest or issuance of a ticket. Judge Gottschall
ordered briefing on the motion, at which point
Perry first alleged that Sullivan violated his
right to travel and associate freely. Following
briefing, Judge Gottschall dismissed all of the
claims except for the false arrest and
imprisonment action.
On September 22, 1998, Perry filed a third
amended complaint, stating many of the same facts
and allegations involving false arrest and false
imprisonment. In response, Sullivan moved to
dismiss on the ground that the false arrest and
imprisonment claims filed in September 1996 were
barred by a two-year statute of limitations
running from the August 1994 incident. Perry
admitted that the limit had run on his claims
before they were filed but argued that Sullivan
waived that defense by not asserting it in
response to the first three versions of the
complaint.
On May 12, 1999, Judge Gottschall ruled that
the statute of limitations defense had not been
waived because Sullivan had never been required
to file an answer to the first three complaints.
In a novel twist, Perry appealed to the equitable
powers of the court that he had been prejudiced
by Sullivan’s failure to pursue quickly a defense
that would have unquestionably resulted in
victory for Sullivan. Judge Gottschall rejected
this argument as well.
II. Analysis
On appeal, Perry raises the straightforward
question of whether a defendant waives a statute
of limitations defense by failing to raise it
before the defendant files the answer. The
statute of limitations on a sec. 1983 complaint
begins to run on the date of the arrest, rather
than the date of the subsequent state court
adjudication. See Kelley v. Myler, 149 F.3d 641,
645 (7th Cir. 1998). Perry’s time to file,
pursuant to the Illinois statutory limit on
personal injury claims, expired on August 7,
1996, a month before he filed suit. Perry admits
that he missed the deadline, and Sullivan moved
to dismiss on the limitations defense on October
8, 1998. The district court held that "[s]ince
defendant has raised its limitations defense
before even filing a responsive pleading, the
court declines to find that it has been waived."
We review de novo a district court’s decision to
dismiss a claim on a statute of limitations
defense, accepting as true all of plaintiff’s

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factual allegations and the reasonable inferences
drawn from them. See Kauthar SDN BHD v.
Sternberg, 149 F.3d 659, 669 (7th Cir. 1998).
Rule 12(b) of the Federal Rules of Civil
Procedure requires that "[e]very defense . . .
shall be asserted in the responsive pleading."
Fed. R. Civ. P. 12(b). The rule makes an
exception for certain enumerated defenses which
may "at the option of the pleader be made by
motion [before pleading]." Id. The rule makes it
clear that defenses must be asserted in the
response to the complaint, but that certain
defenses may be asserted even earlier. In
addition, Rule 8 specifically requires statute of
limitations defenses to be stated in the
defendant’s responsive pleading, but does not
impose a separate time limit on when that
affirmative defense must be raised if the
responsive pleading comes months or years after
the filing of the complaint. Fed. R. Civ. P.
8(b)-(c). Finally, Rule 7 distinguishes between
"pleadings," which include "an answer," and
"motions and other papers." Fed. R. Civ. P. 7.
This distinction clarifies that the use of the
word "pleading" in Rule 8 includes the answer,
but not other motions.
Case law holding that limitations and other
affirmative defenses must be filed with the
defendant’s response are legion. See, e.g.,
Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir.
1990) (holding that party "must raise this 60-day
statute of limitations in a responsive pleading
as an affirmative defense or it will be
considered waived."); Pinto Trucking Serv., Inc.
v. Motor Dispatch, Inc., 649 F.2d 530, 534 (7th
Cir. 1981) ("The Federal Rules of Civil Procedure
require a defendant to plead all his affirmative
defenses in the answer to the complaint."); Roe
v. Sears, Roebuck & Co., 132 F.2d 829, 832 (7th
Cir. 1943); Serrano v. Torres, 764 F.2d 47, 49
(1st. Cir. 1985). The First Circuit stated the
principle applicable to Perry’s situation
succinctly:
Rule 8(c) requires a party to affirmatively raise
the statute of limitations defense in a
responsive pleading. Here defendants never filed
an answer to the amended complaint, preferring to
file a motion to dismiss under Rule 12(b)(6) of
the Federal Rules, and therefore did not have the
opportunity to raise their affirmative defenses
under Rule 8(c). There is, moreover, no
requirement under Rule 12 to affirmatively raise
the statute of limitations defense by motion.
Serrano, 764 F.2d at 49 (citation omitted).
Likewise in Buckley v. Fitzsimmons, 20 F.3d 789,
793 (7th Cir. 1994), we held that an affirmative

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defense pleaded in the first response, five years
after the complaint, had not been waived.
Citing for support Venters v. City of Delphi,
123 F.3d 956 (7th Cir. 1997), Perry contends that
"the statute of limitations is an affirmative
defense which is waived if not pled." Perry
mischaracterizes that case. Venters, in accord
with the rules and cases cited above, states that
Rule 8(c) "requires a defendant to plead a
statute of limitations defense and any other
affirmative defense in his answer to the
complaint." Id. at 967. Thus, that case does not
hold that a defendant waives a defense by failing
to plead it before filing the response.
Motions under Rule 12(b) serve to clarify a
plaintiff’s complaint by forcing the defendant,
under penalty of dismissal, to state in plain and
concise terms a claim under which relief could be
granted. Fed. R. Civ. P. 12. Allowing the
defendant to file these motions before the answer
helps the defendant to understand the complaint
clearly before filing a response. Requiring the
defendant to plead all affirmative defenses
before the complaint has been clarified would
defeat the purpose of the pleading rules. No
cases hold that this is the rule.
Perry had more than two years to work on
drafting a coherent and facially valid complaint.
Until he did so, Sullivan was not required to
answer. Therefore, we hold that Sullivan did not
waive his statute of limitations defense by
waiting to file it until after the 12(b)(6)
motions had run their course. As Judge Gottschall
rightly indicated, Perry’s claim that he has been
prejudiced because Sullivan did not have Perry’s
case dismissed more quickly is frivolous. Even if
this argument made sense, Perry cited no
authority for this proposition and devoted less
than one sentence in the brief to it. Therefore,
it is deemed waived. See United States v.
Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991).
Finally, Perry contends that the threat
allegedly made to him by Sullivan constitutes a
continuing harm because it infringed his right to
travel and associate. As a continuing harm, it is
not subject to the statute of limitations
defenses, he argues. Arguments raised for the
first time on appeal are routinely deemed waived.
See, e.g., Hoeller v. Eaton Corp., 149 F.3d 621,
625 (7th Cir. 1998). Perry attempts to evade this
rule by arguing that in Rule 12(b)(6) scenarios,
plaintiffs are allowed to argue new facts and
theories on appeal so long as they are consistent
with the complaint. See Dawson v. General Motors
Corp., 977 F.2d 369, 372 (7th Cir. 1992).
However, Perry’s complaint was dismissed as time

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barred, not for failure to state a claim, and he
does not benefit from the liberal pleading rules
allowed under Rule 12. Allowing him to
recharacterize his complaint as a continuing harm
would not alter the fact that he knew of his
alleged injury in August 1994 and should have
filed his complaint by August 1996.
III. Conclusion
Because Perry failed to file his complaint
within two years, it was barred by the statute of
limitations, a defense that Sullivan did not
waive by waiting to assert until he filed his
response. The decision of the district court is
Affirmed.
/1 Flush with the taste of victory, the litigious
Perry filed another suit challenging the Illinois
state vehicle abandonment statute, but saw his
winning streak cut short by his total lack of
standing. See Perry v. Village of Arlington
Heights, 977 F.Supp. 896 (N.D. Ill. 1997).
Undeterred by the bitter taste of defeat, Perry
filed an amended complaint in an attempt to
establish standing, but this too was dismissed
for lack of standing. See Perry v. Village of
Arlington Heights, 180 F.R.D. 334 (N.D. Ill.
1998). We affirmed the dismissals at 186 F.3d 826
(7th Cir. 1999). Cf. Perry v. Pogemiller, 16 F.3d
138 (7th Cir. 1993) (imposing sanctions on Rixson
Perry for frivolous appeal).

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