Poulakis v. Amtrak

139 F.R.D. 107, 1991 U.S. Dist. LEXIS 10385, 1991 WL 202636
CourtDistrict Court, N.D. Illinois
DecidedJuly 25, 1991
DocketNo. 90 C 6921
StatusPublished
Cited by10 cases

This text of 139 F.R.D. 107 (Poulakis v. Amtrak) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Poulakis v. Amtrak, 139 F.R.D. 107, 1991 U.S. Dist. LEXIS 10385, 1991 WL 202636 (N.D. Ill. 1991).

Opinion

MEMORANDUM AND ORDER

MORAN, Chief Judge.

On May 29, 1991, this court concluded that plaintiff Pete Poulakis had demonstrated good cause for his failure to serve defendant Amtrak within the 120-day time period set forth by Fed.R.Civ.P. 4(j). Defendant has filed a motion for reconsideration of that ruling, which we deny. Plaintiff has filed additional documentation in further support of his motion for appointment of counsel, a motion on which, for the reasons set forth below, we cannot yet rule.

Amtrak’s Motion for Reconsideration

In response to this court’s request that plaintiff file a written explanation of why he failed to properly serve defendant within the 120-day time period, plaintiff submitted a letter in which he explained that he had been informed by an employee of the clerk’s office that a return receipt would serve as proof of service by United States mail. When plaintiff received the return receipt, he asserted, he believed that he had done all that was necessary to effect service of process. In light of this letter, we concluded that plaintiff had demonstrated a certain degree of diligence in traveling to this courthouse to inquire in person as to the requirements for service of process. Given this and his claimed reliance on the information provided by the clerk’s office, whether misunderstood or erroneous, we concluded that we could not characterize his failure to properly serve defendant as the result of either inadvertence or half-heartedness.

Defendant has moved that this court reconsider its ruling in light of a reply memorandum that defendant filed the next day or, in the alternative, that this court conduct an evidentiary hearing on the allegations on which it relied in that ruling. Although this court had not requested that such a reply be filed, we have considered defendant’s arguments and, for the following reasons, find them to be without merit.

Defendant first contends that plaintiff has failed to present any “evidence” of good cause because his response to this court’s request was “only an unsworn letter.” The letter submitted by plaintiff was in compliance with this court’s order, which directed him to file only a “written explanation” for his failure. This court will not fault plaintiff for such compliance.

Defendant next contends that plaintiff’s explanation in essence pleads ignorance as his excuse. We decline to accept this characterization. Plaintiff represented to this court that he elected service-by-mail in light of what he had been told by the U.S. Marshal regarding the requirement of a court order as a prerequisite to service by that method, and that in light of what he had been told by an employee of the clerk of this court, he believed that a return receipt would suffice as proof of service. Rather than demonstrating that plaintiff attempted to serve defendant despite an acknowledged ignorance of the requirements for doing so, plaintiff’s explanation has demonstrated to this court’s satisfaction that he sought to learn of the appropriate method for service of process and believed that he had done so. As another court within the Seventh Circuit has noted, “[ojther courts have found good cause to exist when the failure of a pro se litigant to effect service was attributable to the Clerk____” Patterson v. Brady, 131 F.R.D. 679, 684 & n. 7 (S.D.Ind.1990).1

[109]*109Defendant further contends that this court should have ignored as hearsay plaintiffs assertion that as to what he allegedly was told by the clerk’s office regarding the sufficiency of a return receipt as proof of service. This court did not consider the purported statement for its truth because, quite obviously, it was not a true statement. Because the purported statement was made in plaintiff’s presence, however, this court considered it as a non-hearsay verbal act relevant to the issue of whether plaintiff acted diligently in light of what he perceived his obligations to be with regard to serving defendant. See United States v. Norwood, 798 F.2d 1094, 1097, n. 4 (7th Cir.), cert. denied, 479 U.S. 1011, 107 S.Ct. 656, 93 L.Ed.2d 711 (1986) (out-of-court statement offered to establish its effect upon listener, rather than its truth, does not differ from any other out-of-court event about which witness might testify); Donohoe v. Consolidated Operating & Production Corp., 736 F.Supp. 845, 859 (N.D.Ill.1990) (where out-of-court statements are offered only as related to listener’s state of mind, declarant’s veracity is irrelevant and rationale for excluding hearsay becomes inapposite); cf. MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1141 (7th Cir.1983) (administrative order offered for the non-hearsay purpose of demonstrating defendant’s professed good faith and the full regulatory environment in which defendant operated was not erroneously admitted).

Equally relevant to this court’s assessment is the fact that, despite its heated litigation of this procedural issue, defendant has at no time represented that it was in any way prejudiced by plaintiff’s failure to comply with Rule 4(j). While acknowledging that a lack of prejudice to the defendant, standing alone, cannot serve as an adequate basis for a “good cause” determination, the Seventh Circuit has joined with the First Circuit in holding that such prejudice, or its absence, may be taken into account: “[Wjhen a plaintiff has offered an explanation for noncompliance with the rule which could support a finding of ‘good cause,’ the absence of prejudice to the defendant is a factor that ought to be considered in assessing whether the explanation offered justifies relief.” Floyd v. United States, 900 F.2d 1045, 1049 (7th Cir.1990). Defendant’s failure, even at the point at which it has filed a motion for reconsideration, to allege any sort of prejudice, further supports this court’s conclusion.

Finally, while hot individually dis-positive, we take further note of plaintiff’s pro se status, which in this court’s opinion entitles him to a certain degree of leniency so as to ensure that his case is justly resolved on its merits rather than on the basis of procedural technicalities to the extent possible. See Patterson, 131 F.R.D. at 683.2 Despite the technical requirements of Rule 4(j), several courts have afforded pro se litigants the same leniency in that context as well. See Id., citing Bowers v. Buchanan, 110 F.R.D. 405 (S.D.W.Va.1986), and Ray v. Mayfield, No. 85-C-9186, slip op., 1987 WL 13589 (N.D.Ill. June 30,1987). We do the same in [110]*110the instant case. Rule 4(j) was intended “ ‘to be a useful tool for docket management, not an instrument of oppression.’ ” Floyd, 900 F.2d at 1049, quoting United States v. Ayer, 857 F.2d 881, 885-86 (1st Cir.1988).

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Bluebook (online)
139 F.R.D. 107, 1991 U.S. Dist. LEXIS 10385, 1991 WL 202636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poulakis-v-amtrak-ilnd-1991.