You're viewing Docket Item 26 from the case England et al v. Feldman et al. View the full docket and case details.

Download this document:

Monday, 15 March, 2010 02:36:16 PM
Clerk, U.S. District Court, ILCD








Case No. 09-cv-4017


O P I N I O N and O R D E R

Before the Court are the Motion to Dismiss filed by Defendants, Kenneth S.

Feldman and Feldman Law Group (Doc. 16), the Report and Recommendation

issued by Magistrate Judge John A. Gorman (Doc. 21), the Objection thereto (Doc.

22) and the Motion for Leave to File a Reply filed by Defendants (Doc. 25). For the

reasons set forth below, the Motion to Dismiss is DENIED, the Report and

Recommendation is ACCEPTED, and the Motion for Leave is DENIED.1


A district court reviews de novo any portion of a Magistrate Judge's Report

and Recommendation to which “specific written objection has been made.”

FED.R.CIV.PRO. 72(b). “The district judge may accept, reject, or modify the

recommended decision, receive further evidence, or recommit the matter to the

magistrate judge with instructions.” Id. However, the Court emphasizes that Rule

1 Local Rule 7.1(B)(3) provides that no reply to a response is permitted. Defendants
have had ample opportunity to argue their position without resort to a reply brief.

72(b) contemplates “specific, written objections to the proposed findings and

recommendations [of the magistrate judge].” Id. (emphasis added).


Defendants moved to dismiss the Complaint for lack of timely service.

Magistrate Judge Gorman recommended that the Motion to Dismiss be denied.

Judge Gorman found that while Plaintiffs exhibited dilatory conduct and did not

show “good cause” for the extension of the time to serve Defendants, Plaintiffs

nonetheless should be granted the opportunity to properly serve Defendants.

Neither party has objected to the facts as laid out by Judge Gorman. In brief,

Plaintiffs filed a Complaint on March 13, 2009. On March 16, 2009, Plaintiffs sent,

by certified mail, a Notice of Lawsuit and Waiver of Service. The Notice and Waiver

were facially defective because, in part, they listed the incorrect Court where the

action was pending. The mail was returned to Plaintiffs. Plaintiffs resent the

Notice and Waiver by regular mail on March 27, 2009 and followed up with a letter

dated April 30, 2009. Defendants did not return the waiver. On July 27, 2009,

Plaintiffs filed a Motion pointing out that Defendants have failed to return the

waivers and seeking an extension of time to “personally serve” Defendants. On July

29, 2009, Judge Gorman denied that Motion and indicated that “[a] court order is

not needed to obtain personal service following failure to return waivers.” On

August 10, 2009, Plaintiffs acquired summons for Defendants. Summons were

returned on September 3, 2009. There is no dispute that Plaintiff failed to timely

serve process.


On September 11, 2009, Defendants filed a Motion to Dismiss. Defendants

argued that Plaintiffs had failed to serve them within the 120 days provided by Rule

4(m). As noted above, Judge Gorman recommended that the Motion to Dismiss be

denied and that this Court exercise discretion and allow Plaintiffs to properly serve

Defendants. Defendants have objected to the Report and Recommendation only to

the extent that Judge Gorman recommended that Plaintiffs be allowed to effect

formal service of process. This Court will conduct a de novo review of this sole



Federal Rule of Civil Procedure 12(b)(5) provides for the filing of a motion

challenging sufficiency of process. Once Defendant has challenged service of

process, Plaintiff bears the burden on proving that service was proper. See Claus v.

Mize, 317 F.3d 725, 727 (7th Cir. 2003).

Service of process is governed by Rule 4. The Rule provides, among other

things, that the summons and Complaint must be served upon Defendants (unless

service is waived) in one of the ways specified in the Rule; and, that it must be

served within 120 days of the filing of a Complaint. In this case, service must be

accomplished by a person who is at least 18 years old by either following state law

on service, by personally serving the individual Defendant, and by delivering a copy

of the summons and Complaint to an agent of the corporate (or partnership)

Defendant. FED.R.CIV.PRO. 4(c)(2), 4(e), and 4(h)(1)(B). Service can be waived by

Defendants if Plaintiffs comply with the provisions of Rule 4(d) by, in part, notifying

Defendants of the lawsuit in writing, providing a copy of the Complaint and waiver


forms, informing Defendants of the consequences of waiving, and giving Defendants

a reasonable opportunity to return the waiver. Rule 4(l) finally provides that proof

of service must be made to the Court unless service is waived.

There is no dispute that: Plaintiffs made no attempt to personally serve

Defendants within the time limits set forth by Rule 4(m); Plaintiffs failed to comply

with the requirements of Rule 4(d) because the waivers of service were facially

defective; and, Plaintiffs further have failed to show the “good cause” that would

mandate an extension of time to properly serve defendant. The only question is

whether Plaintiffs should nonetheless be permitted to serve Defendants.

This Court may, at its discretion, extend the time period for service even

without a showing of good cause. Henderson v. United States, 517 U.S. 654, 662-662

(1996); United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008); Troxell v. Fedders

of North America, Inc., 160 F.3d 381, 382-3 (7th Cir. 1998). An abuse of discretion

occurs if this Court’s decision is “arbitrary or unreasonable.” Troxell, 160 F.3d at

383. Defendants argue that this Court should not exercise discretion because of the

“dubious manner” in which Plaintiffs counsel obtained summons from the Clerk’s

office after the 120 days for service had elapsed and after Judge Gorman had denied

Plaintiffs’ Motion for Extension of time. Defendants further argue that granting

Plaintiffs the opportunity to serve Defendants would send “the unfortunate message

that plaintiffs may ignore the rules and procedures of this Court without risk of

adverse consequences.”

As to the first argument, that Plaintiffs’ counsel acted improperly, it is clear

that Plaintiffs failed to comply with Rule 4. However, as officers of the Court, this


Court assumes, without evidence to the contrary, that Counsel acted in accordance

with the code of conduct to which all attorneys should adhere. As to the second

argument, while the Federal Rules of Civil Procedure are not mere suggestions,

violations of those rules lead to various sanctions and do not uniformly lead to

dismissal of a Complaint.

Defendants (or at least the individual Defendant) were informed of this

lawsuit by the, albeit defective, waivers and notice of lawsuits that were mailed on

March 27, 2010, 14 days after the Complaint was filed. Plaintiffs followed-up with

a letter a month later. The only prejudice that Defendants point to is the general

prejudice that all defendants suffer in having to defend against a lawsuit. This is

not a situation, as in Craig v. Southern Illinois Riverboat/Casino Cruises, Inc., 2009

WL 2567905 (S.D.Ill. 2009), where a previous incarnation of the lawsuit had

reached the summary judgment stage. Dismissal would only lead to further delay

in resolution of this matter. See FED.R.CIV.PRO. 1 (stating that the Rules “should

be construed and administered to secure the just, speedy, and inexpensive

determination of every action and proceeding”). Therefore, notwithstanding sloppy

lawyering on the part of Plaintiffs’ attorneys, this Court, in its discretion, grants

Plaintiffs the opportunity to properly serve Defendants.



For the foregoing reasons, the Motion to Dismiss (Doc. 16) is DENIED, the

Report and Recommendation (Doc. 21) is ACCEPTED, and the Motion for Leave is

DENIED. Plaintiffs shall obtain alias summonses and serve Defendants in

accordance with Rule 4 by March 26, 2010.

s/ Joe B. McDade


Senior United States District Judge

Entered this 15th day of March, 2010