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Jay E. Hayden Foundation v. First Neighbor Bank, N.A.

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ARGUED MARCH 30, 2010

Before POSNER, ROVNER, and TINDER, Circuit Judges.

A foundation created by Jay Hayden, and the estates of his mother and of another woman (R. Maurine Johnson), brought this RICO suit against a bank, two law firms, and seven persons connected with either the bank or the law firms. The suit charges that the defendants (along with others not named as defendants, in particular Robert Cochonour) had formed an informal RICO enterprise that had defrauded the foundation and the estates. Without waiting to file an answer to the complaint, the defendants moved to dismiss the suit pursuant to Rule 12(b)(6), on the ground that the complaint itself showed that the plaintiffs had missed the four-year deadline governing RICO suits. Rotella v. Wood, 528 U.S. 549, 552-53 (2000); Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 156 (1987); Cancer Foundation, Inc. v. Cerberus Capital Management, LP, 559 F.3d 671, 674 (7th Cir. 2009). The district judge agreed and granted the motion. Although the statute of limitations is an affirmative defense to liability and so ordinarily must be pleaded and proved by the defendant, if it is plain from the complaint that the defense is indeed a bar to the suit dismissal is proper without further pleading. Jones v. Bock, 549 U.S. 199, 214-15 (2007); Cancer Foundation, Inc. v. Cerberus Capital Management, LP, supra, 559 F.3d at 674-75; Limestone Development Corp. v. Village of Lemont, 520 F.3d 797, 802 (7th Cir. 2008).

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