Jacque Hollander v. JAMES BROWN and BROWN ENTERPRISES , INCORPORATED

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3176
J ACQUE H OLLANDER ,
Plaintiff-Appellant,
v.
J AMES B ROWN and B ROWN E NTERPRISES ,
I NCORPORATED ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 57—Sidney I. Schenkier, Magistrate Judge.
____________
A RGUED F EBRUARY 23, 2006—DECIDED A UGUST 9, 2006
____________
Before EASTERBROOK , R IPPLE and W OOD , Circuit Judges.
R IPPLE , Circuit Judge. Jacque Hollander appeals the
dismissal, on statute of limitations grounds, of a personal
injury action that she brought against James Brown and
Brown Enterprises for an alleged 1988 incident of sexual
assault. Ms. Hollander submits that the limitations period
should not have begun until 2003, when she was informed
by her physicians that the 1988 sexual assault had caused
her to suffer from a condition known as Graves’ disease. For
the reasons set forth in this opinion, we affirm the judgment
of the district court.

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2 No. 05-3176
I
BACKGROUND
A. Facts
The complaint alleges the following facts; we must accept
them as true in reviewing a Rule 12(b)(6) dismissal. See
Moranski v. Gen. Motors Corp., 433 F.3d 537, 539 (7th Cir.
2005).
In the late 1980s, James Brown Enterprises, Inc. (“Brown
Enterprises”), hired the plaintiff, Ms. Hollander, as a public
relations assistant. Some time in April 1988, there was a
meeting between Mr. Brown and Ms. Hollander at the
offices of Brown Enterprises in Augusta, Georgia. As the
meeting was wrapping up, Mr. Brown invited Ms. Hol-
lander to take a ride with him to see a car that he was
having customized. Ms. Hollander agreed, and the two
drove to a nearby car dealership.
On the way back from the dealership, Mr. Brown alleg-
edly began driving erratically and exited the highway
onto a deserted piece of land in South Carolina. There,
according to Ms. Hollander’s complaint, he proceeded to
beat, rape and psychologically torture her over the course of
several hours. Mr. Brown then returned Ms. Hollander to
Augusta and threatened to have her killed if she told
anyone what had happened.
Ms. Hollander alleges that, some twelve years later, she
was diagnosed with a condition known as Graves’ disease,
an auto-immune deficiency that affects the thyroid gland
and causes low energy, depression and mood swings. Three
years later, in 2003, Ms. Hollander was informed by a
physician that the cause of her Graves’ disease was the rape
and torture allegedly perpetrated by Mr. Brown in 1988.

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No. 05-3176 3
1 It is, of course, “irregular” to dismiss a claim as untimely under
Rule 12(b)(6). United States v. N. Trust Co., 372 F.3d 886, 888 (7th
Cir. 2004). Under Federal Rule of Civil Procedure 8, a complaint
need not anticipate or overcome affirmative defenses such as the
statute of limitations. See Xechem, Inc. v. Bristol-Myers Squibb Co.,
372 F.3d 899, 901 (7th Cir. 2004). As a result, a federal complaint
does not fail to state a claim simply because it omits facts that
would defeat a statute of limitations defense. However, as the
district court observed, dismissal under Rule 12(b)(6) on the basis
of a limitations defense may be appropriate when the plaintiff
effectively pleads herself out of court by alleging facts that are
sufficient to establish the defense. See United States v. Lewis, 411
F.3d 838, 842 (7th Cir. 2005). The district court concluded that this
was such a case.
B. District Court Proceedings
On January 5, 2005, invoking the district court’s diversity
jurisdiction, Ms. Hollander brought this action against
Mr. Brown and Brown Enterprises in the Northern District
of Illinois. Counts I through III asserted claims against
Mr. Brown for false imprisonment, intentional infliction
of emotional distress, sexual assault and battery. Count IV
alleged negligence against both Mr. Brown and Brown
Enterprises. Count V claimed that Brown Enterprises
was vicariously liable for Mr. Brown’s actions under the
doctrine of respondeat superior.
On February 16, 2005, Mr. Brown and Brown Enterprises
joined in filing a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). The district court granted the
motion, holding that Ms. Hollander’s action was barred by
the two-year statute of limitations that governs tort claims
for personal injury in Illinois. 1 See 735 ILCS 5/13-202. Under
that statute, the two-year limitations period begins when the
“cause of action accrued.” Id. In determining the accrual

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4 No. 05-3176
2 The parties do not contend in this appeal that any other
(continued...)
date of Ms. Hollander’s claim, the district court began by
noting two basic principles of Illinois law: (1) that a cause of
action accrues at the time a plaintiff’s interests are invaded;
and (2) that, under the “discovery rule,” a plaintiff also must
know, or be on reasonable notice, that her interests have
been invaded before the limitations period begins to run.
R.21 at 4.
In rejecting Ms. Hollander’s claim that the discovery rule
should extend the statute of limitations in this case, the
court distinguished between the late realization of one’s
injury from the late realization of the extent of that injury. In
the district court’s view, Ms. Hollander’s allegations
described a sudden, traumatic injury that was, or should
have been, obvious to her at the moment it occurred. The
court therefore ruled that her discovery of the full extent of
her injury, some fifteen years later, did not provide a basis
for extending the statute of limitations.
The court also rejected Ms. Hollander’s claim that the
statute of limitations should have been tolled because she
feared retaliation from Mr. Brown.
II
DISCUSSION
A.
We first address whether the district court erred in
concluding that Ms. Hollander’s action was time-barred.
Under the familiar rule of Erie Railroad Co. v. Tompkins, 304
U.S. 64 (1938), we apply Illinois 2 substantive law to resolve

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No. 05-3176 5
2 (...continued)
state’s law should govern the dispute.
this question. See Guaranty Trust v. York, 326 U.S. 99, 110
(1945) (holding that statutes of limitations are considered
substantive matters for purposes of the Erie doctrine).
Further, as a consequence of our obligation under Erie, we
shall not anticipate changes to state law in the absence of
concrete evidence that the state court would adopt that
position today. See Birchler v. Gehl Co., 88 F.3d 518, 521 (7th
Cir. 1996). Indeed, we have warned litigants that those who
seek to base their claims on an innovation in state law
would be well-advised to file their claims in state court. See
id.; Shaw v. Republic Drill Corp., 810 F.2d 149, 150 (7th Cir.
1987) (per curiam).
Under the Illinois Code of Civil Procedure, the statute of
limitations for personal injury claims requires that an action
be commenced within two years of the date on which the
cause of action accrued. See 735 ILCS 5/13-202. As a general
rule, a cause of action for personal injury accrues when the
plaintiff suffers the injury. To alleviate the harshness that
would flow from literal application of this general principle,
Illinois courts also recognize a “discovery rule.” See, e.g.,
Parks v. Kownacki, 737 N.E.2d 287, 294 (Ill. 2000). The effect
of the discovery rule “is to postpone the commencement of
the relevant statute of limitations until the injured plaintiff
knows or reasonably should know that he has been injured
and that his injury was wrongfully caused.” Golla v. Gen.
Motors Corp., 657 N.E.2d 894, 898 (Ill. 1995).
In determining when a plaintiff reasonably should have
discovered her injury, Illinois courts distinguish between
injuries caused by sudden, traumatic events and those that
have a late or “insidious” onset. See Hauk v. Reyes, 616

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6 No. 05-3176
N.E.2d 358, 360 (Ill. App. Ct. 1993). For limitations purposes,
a “sudden, traumatic event” is one that, because of its force
or violence, permits the law to presume that the event
immediately placed the plaintiff on notice of her injury and
a right of action. See Golla, 657 N.E.2d at 899. When a
plaintiff suffers this type of injury, her cause of action
accrues on the date of the traumatic event, and the limita-
tions period does not begin anew simply because a latent
condition later may arise from the same occurrence. See id.
The rationale is that “the nature and circumstances sur-
rounding the traumatic event are such that the injured party
is thereby put on notice that actionable conduct might
be involved.” Id.
In insidious onset cases, by contrast, the nature of the
event does not permit the plaintiff to learn of her injury, or
of the causal link between the defendant’s conduct and her
injury, until some time after the event. For example, a
plaintiff who has been exposed unknowingly to asbestos
may not discover until years later that she now has cancer
and that the exposure was its cause. See, e.g., Nolan v.
Johns-Manville Asbestos, 421 N.E.2d 864, 866 (Ill. 1981). In
such situations, the discovery rule starts the statute of
limitations from the date when the plaintiff discovers, or
reasonably could discover, both her injury and the causal
connection between her injury and the tortious conduct. See
id. at 868.
Ms. Hollander submits that her injuries from the 1988
sexual battery were not sudden, but rather “slow and
cumulative.” Appellant’s Br. at 10. The thrust of Ms.
Hollander’s argument is that the psychological trauma of
the rape made discovery of her full injury a slow and
lengthy process. Notably, Ms. Hollander does not contend
either that she repressed memories of her encounter with

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No. 05-3176 7
Mr. Brown or that she was unaware of the fact that she had
been sexually assaulted until she was diagnosed with
Graves’ disease. Additionally, Ms. Hollander does not
appear to be arguing that she ever was unaware of the false
imprisonment and intentional infliction of emotional
distress that she allegedly suffered at the hands of Mr.
Brown.
It may well be that Ms. Hollander, like many victims of
traumatic injury, only gradually came to understand the full
extent of the injuries that the rape caused. However, Illinois,
whose law we are obliged to apply under the Erie doctrine,
see Erie R.R. Co., 304 U.S. at 78, has made it clear that this
circumstance does not justify the application of the discov-
ery rule. In Clay v. Kuhl, 727 N.E.2d 217, 221 (Ill. 2000), the
Supreme Court of Illinois was asked to apply the discovery
rule and save an otherwise time-barred claim brought by
a woman who had been abused sexually as a child. The
plaintiff had alleged that the abuse began when she
was nine years old and continued until she was fifteen or
sixteen. She reached the age of majority in 1982, but did not
bring suit until 1996, when she was nearly thirty-two years
old. In urging the court to delay the running of the limita-
tions period, she contended that her injuries were latent and
did not manifest themselves fully until years after the abuse
had occurred. The court rejected this argument and held
that “[t]here is no requirement that a plaintiff must know
the full extent of his or her injuries before suit must be
brought under the applicable statute of limitations.” Id. at
222.
In the case before us, the allegations of the complaint
make clear that Ms. Hollander knew she had suffered at
least some injuries at the time of the incident in 1988. For
instance, she alleged that she did not consent to the sexual

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8 No. 05-3176
intercourse with Mr. Brown, see R.1 at 6, and that she was
aware at the time of the incident that she was falsely
imprisoned, see id. at 5. Because Illinois law presumes a
resulting injury from unwanted touching and unlawful
restraint, see Doe By & Through Doe v. Montessori Sch. of Lake
Forest, 678 N.E.2d 1082, 1089 (Ill. App. Ct. 1997), these
allegations make clear that she could have filed suit within
the limitations period. Indeed, Ms. Hollander does not
contend that those immediate injuries were not actionable,
only that the development of the full injury occurred slowly.
In the words of the Supreme Court of Illinois, she is “not a
plaintiff who failed to discover any injury, but a plaintiff
who failed to discover the full extent of her injuries before
the statute of limitations expired.” Golla, 657 N.E.2d at 901
(emphasis in original). This type of plaintiff cannot benefit
from the Illinois discovery rule.
B.
In the alternative, Ms. Hollander asserts that Illinois’
doctrine of equitable estoppel should bar Mr. Brown from
taking advantage of her delay in filing suit. She explains
that she postponed her action for fear of retaliation by Mr.
Brown who, she alleges, threatened to kill her if she told
anyone of the incident.
Like the statute of limitations itself, rules that are
an “integral part of the statute of limitations,” such as
tolling and equitable estoppel, are treated as substantive for
purposes of the Erie doctrine. See Walker v. Armco Steel Corp.,
446 U.S. 740, 751-53 (1980); Wade v. Danek Med., Inc., 182
F.3d 281, 289 (4th Cir. 1999) (holding that “in any case in
which a state statute of limitations applies . . . the state’s
accompanying rule regarding equitable tolling should also

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No. 05-3176 9
3 The Illinois cases appear, at times, to use “equitable estoppel”
interchangeably with the related principle of equitable tolling. See
Smith v. City of Chicago Heights, 951 F.2d 834, 839 n.5 (7th Cir.
1992) (recognizing the overlap in Illinois law). The cases of this
court have distinguished equitable tolling as a rule that “permits
a plaintiff to sue after the statute of limitations has expired if
through no fault or lack of diligence on his part he was unable to
sue before, even though the defendant took no active steps
to prevent him from suing.” Singletary v. Cont’l Ill. Nat’l Bank &
Trust Co. of Chicago, 9 F.3d 1236, 1241 (7th Cir. 1993). The Su-
preme Court of Illinois, by contrast, defines equitable tolling as
a rule that, like equitable estoppel, works to suspend the limita-
tions period when “the defendant has actively misled the
plaintiff, or if the plaintiff has been prevented from asserting his
or her rights in some extraordinary way.” Clay v. Kuhl, 727 N.E.2d
217, 221 (Ill. 2000).
apply”). Thus, in addressing Ms. Hollander’s equitable
estoppel contention, we look to Illinois law for the applica-
ble rule of decision. See, e.g., Singletary v. Cont’l Ill. Nat’l Bank
& Trust Co. of Chicago, 9 F.3d 1236, 1241 (7th Cir. 1993)
(applying state principles of equitable estoppel in a diversity
action).
In Illinois, the doctrine of equitable estoppel suspends the
running of the statute of limitations during any period in
which the defendant took certain active steps to prevent the
plaintiff from suing. 3 The Illinois courts apply this doctrine
most typically in situations where the defendant has
“lulled” the plaintiff into delaying suit, either by promising
not to plead a limitations defense or by concealing evidence
that the plaintiff needed to determine the existence of her
claim. See, e.g., Swann & Weiskopf, Ltd. v. Meed Assocs., Inc.,
711 N.E.2d 395, 401 (Ill. App. Ct. 1999); Beynon Bldg. Corp. v.
Nat’l Guardian Life Ins. Co., 455 N.E.2d 246, 252 (Ill. App. Ct.

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10 No. 05-3176
1983) (“Although there is ordinarily no duty to apprise an
adversary of his rights, one cannot justly or equitably lull
his adversary into a false sense of security, causing him to
subject his claim to the bar of the statute, and then plead the
very delay caused by his course of conduct.”). Some Illinois
cases also appear to recognize equitable estoppel in a
broader sense as a doctrine that “prevents a party from
taking advantage of his own wrongdoing.” Neaterour v. Holt,
544 N.E.2d 846, 851-52 (Ill. 1989). As one Illinois appellate
court has stated: “The test is whether, considering all the
circumstances of the case, conscience and honest dealing
require that the defendant be estopped.” Franke v. Geyer, 568
N.E.2d 931, 934 (Ill. App. Ct. 1991).
Most recently, however, the Supreme Court of Illinois has
indicated that equitable estoppel is available only when the
d e f e n d a n t h a s u s e d m i s r e p r e s e n t a t i o n s o r
concealment—rather than threats of reprisal—to prevent the
plaintiff from suing. In Parks v. Kownacki, 737 N.E.2d 287 (Ill.
2000), a former parishioner brought an action claiming that
a parish priest had sexually abused her when she was a
minor. She did not file her complaint until twenty-two years
after she had reached the age of majority, and the defen-
dants pleaded the statute of limitations as a defense. In
response, the plaintiff contended that, because the priest
had threatened her and her family with violent retribution
if she were to sue, equitable estoppel should preclude the
defendants from invoking the statute of limitations. Reject-
ing this contention, the court held that the “[p]laintiff clearly
has not pleaded the elements of equitable estoppel.” Id. at
296. Continuing, the court reasoned:
She does not allege that any defendant misrepresented
or concealed any material fact. She alleges only that
defendants asked plaintiff to forgive them and to refrain

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No. 05-3176 11
from suing them. In fact, at oral argument plaintiff
admitted that she could not demonstrate a misrepresen-
tation or concealment. Without the misrepresentation or
concealment of a material fact, equitable estoppel does
not apply.
Id.
The statements of the Supreme Court of Illinois in Parks
control this case. We express no view, of course, on whether
Parks announced the correct approach or on whether it
applied the doctrine of equitable estoppel correctly to the
facts before it. It suffices that Ms. Hollander’s theory of
equitable estoppel is materially identical to the one asserted
by the plaintiff in Parks. Like the Parks plaintiff, Ms. Hol-
lander claims that a threat of violence, rather than a misrep-
resentation, prevented her from filing suit. As Ms. Hol-
lander concedes in her appellate brief, this claim does not
conform to the equitable estoppel paradigm established by
the Illinois case law. She submits, nevertheless, that in
resolving her motion to dismiss we must assume that Mr.
Brown was lying when he threatened to kill her, and that his
statement therefore was technically a misrepresentation. The
court in Parks was unwilling to make that assumption.
Consistent with our obligations under Erie, neither may we.
Conclusion
For the foregoing reasons, the judgment of the dis-
trict court is affirmed.
A FFIRMED

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12 No. 05-3176
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-9-06

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