In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3411
HAROLD JENKINS,
Lieutenant,
Plaintiff-Appellant,
v.
VILLAGE OF MAYWOOD,
JAMES COLLIER, RALPH
CONNOR, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 1520—Matthew F. Kennelly, Judge.
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ARGUED MARCH 28, 2007—DECIDED NOVEMBER 5, 2007
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Before POSNER, ROVNER and SYKES, Circuit Judges.
ROVNER, Circuit Judge. In December 2003, Harold
Jenkins sued the Village of Maywood and several of
its employees, asserting claims under Title VII and 42
U.S.C. § 1983. On March 9, 2004, the parties filed a joint
stipulation (hereafter “Stipulation”) for voluntary dis-
missal without prejudice, pursuant to Fed. R. Civ. P.
41(a)(1)(ii). The district court prepared an order of dis-
missal on that same day, and the clerk entered the order
on the docket on March 15, 2004. On March 15, 2005,
Jenkins filed a nearly identical suit against the same
2 No. 06-3411
defendants. The defendants moved for summary judg-
ment on the section 1983 claims, arguing that they were
untimely. 1 The court granted the motion, and Jenkins
appeals. We affirm.
I.
The district court noted that section 1983 actions are
governed by the appropriate state statute of limitations
and its corresponding tolling rules. The applicable statute
of limitations in Illinois is two years. Illinois tolling rules
allow a plaintiff who voluntarily dismisses a case to
commence a new action within one year or within the
remaining period of limitation, whichever is greater. 735
ILCS 5/13-217. See also 735 ILCS 5/2-1009 (providing
that the “plaintiff may, at any time before trial or hearing
begins, upon notice to each party who has appeared or
each such party’s attorney, and upon payment of costs,
dismiss his or her action or any part thereof as to any
defendant, without prejudice, by order filed in the cause.”).
The question was whether the one year period referenced
in section 5/13-217 commenced on March 9, 2004, when the
parties filed the joint Stipulation to dismiss, or on March
15, 2004, when the clerk entered the court’s order of
dismissal on the docket. The district court noted that,
under Illinois law, “an order issued pursuant to section
5/2-1009 is not effective, for purposes of section 5/13-217,
until the clerk has entered the order into the docket.”
Jenkins v. Village of Maywood, et al., No. 05 C 1520 (N.D.
Ill. August 16, 2006). However, under the Federal Rules
of Civil Procedure, no order is needed to effect a volun-
1
On July 18, 2005, the district court dismissed the Title VII
claim as untimely and Jenkins does not appeal that dismissal.
Only the section 1983 claims are before us.
No. 06-3411 3
tary dismissal. Rather, Rule 41(a) provides, in relevant
part, that “an action may be dismissed by the plaintiff
without order of court . . . by filing a stipulation of dis-
missal signed by all parties who have appeared in the
action.” “Filing,” the district court held, occurred when the
Stipulation was delivered into the actual custody of the
proper officer. The court found that there was no need for
a clerk’s entry on the docket in order for the filing to
take effect. Under Rule 41(a), the dismissal was there-
fore effective immediately upon the filing of the joint
Stipulation of dismissal, on March 9, 2004. The district
court accordingly found that Jenkins had one year from
March 9, 2004 in which to refile his suit. Because he
failed to meet that deadline, the court found the second
action untimely and granted the defendants’ motion for
summary judgment. On appeal, Jenkins argues that the
second complaint was timely because it was filed one year
to the day after the voluntary dismissal was entered of
record.
II.
“Because no federal statute of limitations governs,
federal courts routinely measure the timeliness of fed-
eral civil rights suits by state law.” Hardin v. Straub, 490
U.S. 536, 538 (1989). See also Wilson v. Garcia, 471 U.S.
261, 266-76 (1985) (because section 1983 does not contain
an express statute of limitations, federal courts use the
forum state’s statute of limitations for personal injury
claims); Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir.
2001) (same). In Illinois, the statute of limitations for
personal injury actions is two years, and so section 1983
actions litigated in federal courts in Illinois are subject
to that two year period of limitations. Johnson, 272 F.3d
at 521; 735 ILCS 5/13-202. “In virtually all statutes of
limitations the chronological length of the limitation period
4 No. 06-3411
is interrelated with provisions regarding tolling, revival,
and questions of application.” Hardin, 490 U.S. at 539
(quoting Johnson v. Railway Express Agency, Inc., 421 U.S.
454, 464 (1975)). Federal courts using state limita-
tions periods thus apply the state’s “coordinate tolling
rules” as well. Hardin, 490 U.S. at 539.
The Illinois tolling rule at issue here provides that if
an action is voluntarily dismissed by the plaintiff, “then,
whether or not the time limitation for bringing such action
expires during the pendency of such action, the
plaintiff . . . may commence a new action within one year
or within the remaining period of limitation, whichever
is greater, . . . after the action is voluntarily dismissed
by the plaintiff[.]” 735 ILCS 5/13-217. On March 9, 2004,
the parties filed a Stipulation, signed by the lawyers
for each side, that specified in its entirety:
It is hereby stipulated by and between Plaintiff,
HAROLD JENKINS, and Defendants, VILLAGE OF
MAYWOOD, MAYOR RALPH CONNOR, VILLAGE
MANAGER DENNIS SPARKS, CHIEF OF POLICE
JAMES COLLIER, COMMANDER DONALD
MOBLEY, and LIEUTENANT JOSE MAZARIEGOS,
that this action shall be dismissed without prejudice,
pursuant to Federal Rule 41(a)(1), with each party
to bear their own costs and fees.
R.51, Ex. 4. As we noted, Rule 41(a)(1) specifies that a
plaintiff may dismiss an action without an order of court
by filing a stipulation of dismissal signed by all parties
who have appeared in the action. The filing date stamped
on the Stipulation is March 9, 2004. The Stipulation is
also stamped with the notation “DOCKETED MAR 15
2004.” On March 9, 2004, the district court issued an
“Order of Dismissal,” which was docketed on March 15,
2004. That Order purported to dismiss the case without
prejudice pursuant to Rule 41. As the district court it-
No. 06-3411 5
self noted, the Order was superfluous because under
Rule 41(a), the dismissal was effective immediately upon
the filing of the Stipulation, which occurred on March 9,
2004. Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d
1073, 1078 (7th Cir. 1987) (a Rule 41(a) “dismissal termi-
nates the case all by itself.”); McCall-Bey v. Franzen, 777
F.2d 1178, 1185 (7th Cir. 1985) (a Rule 41(a) voluntary
dismissal takes effect the date the stipulation is filed in
court). The plaintiff refiled the action on March 15, 2005,
missing the one year deadline by six days.
Jenkins argues that under Illinois law, an action is not
dismissed until the court enters an order and that order
is “entered of record.” In this case, the district court’s
order was entered on the docket on March 15, 2004. If
March 15, 2004 is the date the dismissal became effective,
Jenkins argues, then the refiled action was timely. If the
case had been dismissed under 735 ILCS 5/2-1009, Jenkins
might be correct. See Swisher v. Duffy, 512 N.E.2d 1207,
1210 (Ill. 1987) (where no written judgment order is
required, a judgment is effective for the purposes of 735
ILCS 5/13-217 when it is entered of record). But the
case was in federal court, not state court, and the Federal
Rules of Civil Procedure apply in federal court. Fed. R. Civ.
P. 1 (“These rules govern the procedure in the United
States district courts in all suits of a civil nature[.]”).
Although we borrow the statute of limitations and coordi-
nate tolling rules from Illinois, federal procedural rules
govern the determination of when the action was volun-
tarily dismissed. Contrary to Jenkins’ claims, a rule
governing dismissal is not a coordinate tolling rule. The
one year tolling period set by the 735 ILCS 5/13-217 began
on March 9, 2004, when, according to Federal Rule of
Civil Procedure 41(a), the action was dismissed. The case
refiled on March 15, 2005 was therefore untimely and
the district court was correct to grant summary judg-
ment in favor of the defendants.
AFFIRMED.
6 No. 06-3411
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-5-07