Opinion
01 C 50097
February 8, 2002.
MEMORANDUM OPINION AND ORDER
Plaintiff, Richard Reifsteck, has filed a four-count complaint alleging a claim under the Americans with Disabilities Act, 42 U.S.C. § 12101-12213, and a state law claim for retaliatory discharge against defendant, The Goodyear Tire and Rubber Company, incorrectly identified as "The Kelly-Springfield Tire Corporation and Goodyear Tire and Rubber." Jurisdiction and venue are proper based on 42 U.S.C. § 12117 (a), 2000e-5(f)(3), and 28 U.S.C. § 1367, 1391. Defendant has filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(2), (4) and (5), although the court considers it only under Rule 12(b)(5) for insufficient service of process.
Defendant claims that plaintiff failed to timely serve defendant with a copy of the complaint in that its registered agent, CT Corporation System ("CT System"), received only the summons without the complaint attached. However, plaintiff has attached to his response a signed return of service from the Cook County Sheriff's Office ("Sheriff") certifying that service of the summons and complaint was made on CT System. (Pl. Reap., Exh. 2). The Seventh Circuit has held that a valid, signed return of service constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence. O'Brien v. R.J. O'Brien Assocs., 998 F.2d 1394, 1398 (7th Cir. 1993) (quoting Hicklin v. Edwards, 226 F.2d 410, 414 (8th Cir. 1955)). In this case, defendant has submitted an affidavit from Linda Werner, the employee of CT System who, according to the Sheriff's return of service, was the individual who accepted the service. In her affidavit, Werner states that a review of CT System's business records reveals that the complaint was not attached to the summons when the summons was originally served. She has also included a letter contemporaneously sent to defense counsel upon receipt of service, which specifically notes the complaint was not attached. (Def. Resp., Exh. A). On the other hand, plaintiff's counsel has submitted an affidavit from his secretary, who avers that she specifically recalls sending a copy of the summons and complaint to the Sheriff for service on CT System. (Pl. Resp., Exh. 1). Thus, what the court has in this case is a battle of affidavits: plaintiff says the complain was attached, while defendant says it was not. Under these circumstances, the court finds that defendant has not submitted "strong and convincing evidence" to rebut the presumption of valid service created by the return of service.O'Brien, 998 F.2d at 1398; see also Margaretten Co. v. Porterfield, No. 90 C 729, 1991 WL 159827, at *3 n. 1 (N.D. Ill. Aug. 9, 1991) (noting that courts routinely decide issues relating to service of process based solely on the affidavits and other documents submitted by the parties).
Alternatively, even assuming the complaint was not attached to the summons, and thus that service was not properly effected, the court would still be inclined to find that good cause exists for failure to properly effect service. See Fed.R.Civ.P. 4(m); Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340-41 (7th Cir. 1996). Determining whether good cause exists in a particular case is a decision left to the sound discretion of the trial court. Bachenski v. Malnati, 11 F.3d 1371, 1376 (7th Cir. 1993). In this case, plaintiff utilized the services of the Sheriff to ensure that service was properly effected. Plaintiff received the return of service from the Sheriff indicating that service had been accomplished on April 6, 2001, well within the 120-day limit of Rule 4(m). (Pl. Resp., Exh. 2). Not until defendant raised the alleged defect after the 120 days had lapsed did anything seem awry. (Pl. Resp., p. 4). Because of the return of service by the Sheriff, plaintiff reasonably abstained from further investigation, and was entitled to rely on it in the absence of information to the contrary. See Benjamin v. Grosnick, 999 F.2d 590, 592 (1st Cir. 1993) (finding good cause when blame for error rested entirely with deputy sheriff and sworn representations in the return of service amounted to reasonable belief by plaintiff that defendant had been served), cert. denied sub nom. 510 U.S. 1112 (1994). In fact, it seems likely that the fault, if any, lies with the Sheriff. Reasonable diligence by the plaintiff is therefore evident in this case. See Bachenski, 11 F.3d at 1376-77.
Defendant correctly notes that under Rule 4, Monday, July 23, 2001 was the last day on which plaintiff could timely effect service. (Def. Resp., p. 2 n. 2).
For the reasons stated above, defendant's motion to dismiss without prejudice is denied.