Opinion
Case No. 02 C 4619
September 2, 2003
ORDER
On June 28, 2002, plaintiff Joe Littleton filed a four count complaint against defendants Carlos Ortega and the City of Blue Island ("the City"). The first two counts allege false arrest and malicious prosecution in violation of 42 U.S.C. § 1983 against Ortega, an officer of the City of Blue Island Police Department. The third and fourth counts are Illinois state common law claims of false arrest and malicious prosecution against both Ortega and his employer, the City, under a theory of respondeat superior. On February 18, 2003, the City filed a motion to dismiss, asserting that the federal counts against Ortega in Counts I and II should be dismissed under Fed.R.Civ.P. 12(b) (5) because Littleton has failed to effectuate service of process on Ortega pursuant to Fed.R.Civ.P. 4(m), and that the court should therefore decline to exercise supplemental jurisdiction over the pendant state claims in Counts III and IV, dismissing those counts for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b) (1).
Background
Littleton alleges in his complaint that on July 2, 2001, when he was attending a baseball game in
Blue Island with his five-year old grandson, a minor altercation occurred between himself and Ortega concerning whether Littleton could watch the game from behind the field's backstop. Littleton alleges that after he and his grandson left the game, Ortega stopped him, threatened him, and had him arrested, detained and prosecuted for disorderly conduct. Littleton was found not guilty of disorderly conduct on July 25, 2001, and proceeded to file this four-count suit against Ortega and the City on June 28, 2002.
On October 26, 2002, 120 days after Littleton filed his complaint, he (or more accurately, his lawyer) had not yet served either defendant with the summons or complaint. Six weeks later, on December 5, 2002, Littleton orally requested and received a twenty-one day extension to effectuate service of process. Littleton then waited until December 26, 2002, the last day of the extension period, to have the summons issued for both defendants. Littleton managed to serve the City, but to this date, Ortega has not been served. On February 18, 2003, the City filed its motion to dismiss the complaint.
Analysis
Under Fed.R.Civ.P. 4(m), "If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court . . . 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 court shall extend the time for service for an appropriate period." If the district court finds that plaintiff has "good cause" for his failure to effectuate process within the time established by Rule 4(m), the district court must allow the plaintiff additional time to effectuate service of process. Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996) ("[W]here good cause is shown, the court shall extend the time for service, and the inquiry is ended."). "Good cause means a valid reason for delay. . . ." Coleman v. Milwaukee Bd of Sch. Directors, 290 F.3d 932, 934 (7th Cir. 2002) (citations omitted). Rule 4(m) (previously Rule 4(j)) does not define "good cause," and the legislative history provides only one example of good cause: when service is delayed because the defendant is attempting to evade service. Geiger v. Allen, 850 F.2d 330, 333 (7th Cir. 1988). Although what is good cause is unclear, what is not good cause is quite clear. "[S]imple attorney neglect, without the presence of substantial extenuating factors such as sudden illness or natural disaster, cannot constitute the sole basis for a 'good cause' determination." Floyd v. U.S., 900 F.2d 1045, 1047 (7th Cir. 1990). In any event, it is the plaintiff who bears the burden of showing good cause. Geiger, 850 F.2d at 333; see also Sullivan v. Mitchell, 151 F.R.D. 331, 332-33 (N.D. Ill. 1993) ("Plaintiff must show reasonable and diligent efforts at effecting service to support a finding of good cause. A plaintiff makes reasonable effort if he proceeds in a manner reasonably calculated to effect service within 120 days."). Littleton does not satisfy that burden.
The burden of serving an individual is not particularly onerous. Serving Ortega pursuant to Fed.R.Civ.P. 4(e) requires either personal delivery, delivery to defendant's dwelling (with process being left with some resident of suitable age and discretion), or delivery to defendant's designated agent or service pursuant to Illinois state law.
Although the plaintiff has not alleged that Ortega is evading service (the plaintiff alleges no reason at all for his failure to serve Ortega), if plaintiff were to do so, the Seventh Circuit cautions that evasion may not be inferred from "repeated, though faulty, attempts at service of process[.]" Mid-Continent Wood Products, Inc. v. Harris, 936 F.2d 297, 303 (7th Cir. 1991) (italics omitted).
In opposing the motion to dismiss, Littleton asserts that his attempts to serve Ortega to date, while fruitless, have been "diligent." (Pl. resp. ¶ 5.) However, he offers no more than this self-serving conclusion as evidence of diligence, and his actions belie any inference of diligence. During the original 120-day period, Littleton did not even have a summons issued, let alone attempt to serve the defendants. What is more, Littleton has already asked for and received one extension to make service on Ortega — though he did not bother to make that request until six weeks after his original 120 days expired. Littleton then waited until the last day of the allotted twenty-one day extension period to have the summons issued. Diligent counsel would not have left himself without any margin for error, in case the summons could not be issued and served in the same twenty-four hour period. Moreover, although Littleton never served Ortega, he failed even to seek another extension until faced with the City's motion to dismiss; at that point, he raised the issue in his opposition brief, rather than through a properly noticed motion. In doing so, he provided no explanation for the delay. The court thus does not even know what efforts, if any, he has made to serve Ortega. The court therefore finds no good cause for the delay.
Absent good cause, the court has the discretion to dismiss without prejudice or grant an additional extension of time. Fed.R.Civ.P. 4(m). Here, Littleton's only argument in asking the court to grant an extension is that his claim should be heard on the merits. He makes no arguments that Ortega has been evading service, or that his claims will be time-barred if the court dismisses them without prejudice. See Advisory Committee Note to Fed.R.Civ.P. 4(m). Because Littleton has neither established good cause for failing to serve Ortega nor otherwise persuaded the court to exercise its discretion to grant an additional extension of time, the court dismisses the federal claims in Counts I and II without prejudice. That leaves only the state law claims in Counts III and IV against the City and Ortega. The court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367 over either of these claims, and therefore dismisses them without prejudice as well.
The state law claims against Ortega, like the federal claims, could also be dismissed for failure to serve him in accordance with Rule 4(m).
Littleton can still file Counts III and IV in state court. Illinois' two year statute of limitations for false arrest and malicious prosecution claims, 735 ILCS 5/13-202, was tolled when plaintiff filed his complaint in federal court. 28 U.S.C. § 1367(d).