Opinion
No. 99-1330
May 1, 2000.
REPORT AND RECOMMENDATION
This cause is before the Court on Defendant's Motion to Dismiss Complaint.
On October 25, 1999, Plaintiff filed the above-captioned case alleging that Defendant discriminated against her based upon her race and sex.
Specifically, Plaintiff alleges that Defendant gave her an inaccurate and unfair job evaluation, denied her a bonus, denied her the opportunity to attend job related seminars and conferences, and did not allow her to participate in her case load selection because she is black and because she is a woman.
In response, Defendant filed a motion to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(4) and (5). Therein, Defendant argues that the only notification which it received of this law suit is when Plaintiff, on November 3, 1999, sent a copy of the charges, the Court's October 25, 1999 docket entry, and a Rule 16 notice to the Peoria County, Illinois, State's Attorney's Office ("the State's Attorney") by certified mail. Defendant asserts that this service is insufficient under Rule 4.
Moreover, Defendant contends that actual notice of this suit does not remedy Plaintiff's failure to comply with Rule 4. Because Plaintiff has failed to effect proper service on it within 120 days after filing her Complaint as required by Rule 4(m), Defendant asks the Court to dismiss her Complaint or to quash the process for insufficient service of process.
Plaintiff argues that while her discrimination charge was pending before the EEOC, the State's Attorney's Office indicated to the EEOC that it was representing Defendant against Plaintiff's discrimination charge. Thus, Plaintiff asserts that by serving the State's Attorney, she effected service on Defendant's agent. Accordingly, Plaintiff asks the Court to allow her case to go forward.
Federal Rule of Civil Procedure 4 sets forth the requirements and procedures for service of process. Rule 4(c) requires a plaintiff to serve each defendant with a summons and a copy of the complaint. Rule 4(m) requires a plaintiff to do so within 120 days after the filing of the complaint. Rule 4(j) provides that "[s]ervice upon a state, municipal corporation, or other governmental organization subject to suit shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant." Finally, Rule 4(d) establishes a procedure allowing a party to waive service of process.
In the instant case, Plaintiff has not complied with Rule 4's dictates. Plaintiff incorrectly served Defendant's counsel by certified mail. Because Defendant is a governmental organization, Plaintiff must either comply with Rule 4(j) or obtain waiver of service from Defendant pursuant to Rule 4(d). Plaintiff has presented no evidence that Defendant waived service pursuant to Rule 4(d). See Robinson v. Turner, 886 F. Supp. 1460, 1462 (S.D.Ind. 1995) (holding that the plaintiff bears the burden of establishing sufficiency of process); see also Saez Rivera v. Nissan Mfg. Co., 788 F.2d 819, 821 n. 2 (1st Cir. 1986) (same). Likewise, Plaintiff has presented no evidence that she complied with Rule 4(j).
In addition, it is unclear whether Plaintiff served a summons upon the State's Attorney or just a copy of her Complaint.
On the other hand, Defendant's counsel (i.e., the State's Attorney) has submitted an uncontroverted affidavit that he is not Defendant's chief executive officer, nor is he an authorized agent of Defendant. See Jones v. Jones, 217 F.2d 239, 242 (7th Cir. 1954) (considering affidavits submitted by both parties in deciding whether service was proper); see also Grantham v. Challenge-Cook Bros., Inc., 420 F.2d 1182, 1186 (7th Cir. 1969) (considering affidavit submitted to support defendant's motion to quash service). Because neither Rule 4(j) nor 735 ILCS 5/2-211 provides for service by certified mail, the Court believes that Plaintiff has failed to effect proper service of process upon Defendant in this case.
Nevertheless, Plaintiff's failure to effect proper service of process does not automatically result in the dismissal of her suit as Defendant requests. Rule 4(m) allows the district court to dismiss a complaint if proper service of process has not been made within 120 days after the filing of the complaint or to extend the time within which the plaintiff may effect proper service of process. If the plaintiff can show good cause for the failure to effect service of process, then the district court must extend the time for service for an appropriate period. As the United States Court of Appeals for the Seventh Circuit has explained,
[w]hen considering a process defect like the one involved in this case, a district court must first inquire whether a plaintiff has established good cause for failing to effect timely service. If good cause is shown, the court shall extend the time for service for an appropriate period. In other words, where good cause is shown, the court has no choice but to extend the time for service, and the inquiry is ended. 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. Thus, absent a showing of good cause, a district court must still consider whether a permissive extension of time is warranted.Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 341 (7th Cir. 1996) (internal citations omitted).
In the instant case, the Court does not believe that good cause exists for Plaintiff's failure to effect timely service of process. The United States Supreme Court has "never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel." McNeil v. United States, 508 U.S. 106, 113 (1993). Likewise, the Seventh Circuit has made it clear that "[i]gnorance of the law can be no excuse for a failure to perfect service of process." Lewellen v. Morley, 909 F.2d 1073, 1077 (7th Cir. 1990). "Consistent with these observations, a number of courts have specifically held that a pro se litigant's ignorance of the 120-day time limit does not establish good cause under Rule 4[(m)]." Marozsan v. United States, 849 F. Supp. 617, 648 (N.D. Ind. 1994) (collecting cases).
In fact, Plaintiff has offered no reason(s) whatsoever.
The Court agrees with the reasoning of the cases cited inMarozsan and finds that Plaintiff has failed to establish good cause. Therefore, an automatic extension of time for the Plaintiff to effect service of process is not required. First, Rule 4(j) is clear as to whom a plaintiff suing a state or governmental organization must serve. McNeil, 508 U.S. at 113. "Failure to read a rule is the antithesis of good cause. Ignorance may be an explanation but is not an excuse." Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996). Second, a finding of good cause by the Court in the instant case would effectively eviscerate Rule 4(j) because every pro se litigant could claim ignorance, thereby automatically excusing his failure to timely serve the defendant. See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (opining that "[t]o hold that a pro se litigant's ignorance of Rule 4[(m)] excuses his compliance with the rule would automatically excuse his failure to serve his defendants timely."); see also Townsel v. County of Contra Costa, California, 820 F.2d 319, 320 (9th Cir. 1987) (stating that "to hold that complete ignorance of Rule 4[(m)] constitutes good cause for untimely service would allow the good cause exception to swallow the rule."). Therefore, the Court finds that Plaintiff has failed to establish good cause for failing to timely effect service in compliance with Rule 4(j).
However, the Court does recommend to the district court that it exercise its discretion to extend the time within which Plaintiff may make proper service. In this Court's opinion, Plaintiff made a "reasonably diligent" effort to serve Defendant. Bachenski v. Malnati, 11 F.3d 1371, 1377 (7th Cir. 1993), quoting Tso v. Delaney, 969 F.2d 373, 375 (7th Cir. 1992). Plaintiff had a copy of a letter from the State's Attorney's Office to the EEOC in which the State's Attorney's Office indicated that it was representing Defendant against Plaintiff's discrimination charge. Thus, it was reasonable for Plaintiff to believe that she could serve Defendant's counsel, especially given the fact that she is proceeding pro se.
Furthermore, Plaintiff will, in all likelihood, be unable to maintain her claim if the district court does not so exercise its discretion because she is now outside of the time period for filing a discrimination cause of action. 42 U.S.C. § 2000e-5(f)(1);EEOC v. Harvey L. Walner Assoc., 91 F.3d 963, 968 (7th Cir. 1996). In making this recommendation, the Court is cognizant of the fact that "[t]he running of the statute of limitations does not require that a district court extend the time for service of process under the new rule." Panaras, 94 F.3d at 341. Nevertheless, the Court believes that under the unique facts involved in this case, the district court should exercise its discretion to extend the time within which Plaintiff may effect proper service of process.
Wherefore, the Court RECOMMENDS that Defendant's Motion to Dismiss Complaint (d/e 6) be DENIED and that the district court exercise its discretion pursuant to Federal Rule of Civil Procedure 4(m) to extend the time for Plaintiff to effect proper service of process on Defendant to an appropriate time.
The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to file a timely objection will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). See also Local Rule 72.2.
ENTER: May 1, 2000
FOR THE COURT:
(Signature on File with Clerk) BYRON G. CUDMORE UNITED STATES MAGISTRATE JUDGE