Monday, 15 March, 2010 02:36:16 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
COREY ENGLAND and MIDWEST
KENNETH S. FELDMAN and
FELDMAN LAW GROUP,
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
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
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
JOE BILLY MCDADE
Senior United States District Judge
Entered this 15th day of March, 2010