Opinion
Cause No. 1:01-CV-330.
January 30, 2002
ORDER
This matter is before the Court on the pro se Plaintiff's motion for an extension of time with which to serve the Defendants. The Plaintiff filed her Complaint on September 11, 2001. On January 11, 2002, the Clerk noted that the Plaintiff had not timely issued or served process, and that failure to act by January 28, 2002, would bring this matter to the Court's attention. (Docket No. 2.) On January 29, 2002, the Plaintiff filed this late motion for an extension of time.
The Plaintiff is admonished that in the future she must comply the deadlines set by the Court.
Under Fed.R.Civ.P. 4(m), the Court must first inquire whether a plaintiff has established good cause for failing to effect timely service. If good cause is shown, "the court has no choice but to extend the time for service, and the inquiry is ended." Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996) (citing Petrucelli v. Bohringer Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995)). If, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time. Fed.R.Civ.P. 4(m); Panaras, 94 F.3d at 340. The burden of showing good cause is on the Plaintiff. Panaras, 94 F.3d at 340.
Fed.R.Civ.P. 4(m) provides: "If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the courts hall extend the time for service for an appropriate period."
Here, the Plaintiff has failed to establish good cause for her failure to serve the defendants within the 120-day period. Although no precise test exists for determining when good cause exists, a plaintiff's efforts to serve a defendant must "at the very least . . . [be] accompanied by some showing of reasonable diligence." Bachenski v. Malnati, 11 F.3d 1371, 1377 (7th Cir. 1993) (quoting Tso v. Delaney, 969 F.2d 373, 377 (7th Cir. 1992)). Of course, on this limited record, no diligence, or even what efforts have been made to secure service, have been shown. Moreover, while several circumstances may constitute good cause, the Plaintiff has met none of them. For example, the Defendants have presumably not evaded service, see Geiger v. Allen, 850 F.2d 330, 333 (7th Cir. 1988) (holding that good cause is established when defendant evades service), nor have their addresses been unknown. See MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097-98 (3d Cir. 1995) (a plaintiff with an incorrect address who needs to locate the correct address warrants an extension of time). Indeed, the Plaintiff has long known the address for defendant Lutheran Hospital, and presumably had the resources to locate defendant Thomas Groves, at his workplace, if nowhere else.
Instead, the Plaintiff's sole reason for her delay in serving the Defendants is her inability to secure counsel. However, on this record, this is insufficient to establish good cause for failing to serve the Defendants within the 120 days specified by Fed.R.Civ.P. 4(m). Indeed, the Plaintiff has not even related to us what diligent efforts she has made to secure counsel. Therefore, the Plaintiff has not shown good cause such that we must grant the extension of time.
Nevertheless, this Court must next "clearly consider" whether, absent good cause, a "permissive extension of time [is] warranted under the facts of this case." Panaras, 94 F.3d at 341. Having carefully considered the facts in this case, the Court will exercise its discretion to grant an extension of time for the Plaintiff to serve the Defendants.
The Advisory Committee Notes to Rule 4(m) give some examples of factors for district courts to consider in exercising their discretion, including whether the applicable statute of limitations would bar the refiled action. Fed.R.Civ.P. 4(m), Advisory Committee Note, 1993 Amendments.
Here, if forced to refile her complaint, the Plaintiff's claim would likely be barred by the statute of limitations under 42 U.S.C. § 2000e-5(f)(1), which requires the filing of Title VII claims within 90 days of receipt of a Notice of Right to Sue letter from the EEOC. See Panaras, 94 F.3d at 341 (noting that the 90-day statute of limitations is an "extremely short one"); Rockett v. Martin Transport, Ltd., 2000 WL 816785, *2-3 (N.D.Ill. June 22, 2000).
Finally, we note that the Plaintiff's pro se status entitles her to a "certain degree of leniency so as [her] case is justly resolved on its merits rather than on the basis of procedural technicalities to the extent possible." Poulakis v. Amtrak, 139 F.R.D. 107, 109 (N.D.Ill. 1991); see c.f. Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). In recognition of this principle, numerous courts within this circuit have interpreted Rule 4(m)'s requirement of "good cause" liberally in cases where pro se litigants have made good faith efforts to comply with the Rule's dictates. See, e.g., Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 557 (7th Cir. 1996) (pro se plaintiff making diligent effort to follow the rules of process not dismissed) Campbell v. Illinois Department of Corrections, 907 F. Supp. 1173, 1177 (N.D.Ill. 1995); Poulakis, 139 F.R.D. at 109; Patterson v. Brady, 131 F.R.D. 679 (S.D.Ind. 1990); Walker v. Takata, 1993 WL 225353 (N.D.Ill. June 22, 1993); Calderon v. True, 1993 WL 413970 (N.D.Ill. Oct. 15, 1993). As the United States Court of Appeals for the Seventh Circuit has observed, "Congress intended Rule [4(m)] to be a useful tool for docket management, not an instrument of oppression." Floyd v. United States, 900 F.2d 1045, 1049 (7th Cir. 1990) (quoting United States v. Ayer, 857 F.2d 881, 885-86 (1st Cir. 1988)).
Nevertheless, the Defendants are still entitled to know they have been sued in federal court whether the Plaintiff has secured counsel or not, and she is to immediately undertake to serve them. Therefore, the Plaintiff shall have until April1, 2002, to serve the Defendants with process. Failure to do so without a further showing of good cause will result in the dismissal of the Plaintiff's claims against the Defendants. SO ORDERED.