Sullivan v. Mitchell

151 F.R.D. 331, 1993 WL 433972
CourtDistrict Court, N.D. Illinois
DecidedOctober 21, 1993
DocketNo. 84 C 9773
StatusPublished
Cited by7 cases

This text of 151 F.R.D. 331 (Sullivan v. Mitchell) 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
Sullivan v. Mitchell, 151 F.R.D. 331, 1993 WL 433972 (N.D. Ill. 1993).

Opinion

MEMORANDUM OPINION AND ORDER

LINDBERG, District Judge.

In August of 1989, defendant moved to dismiss this action pursuant to Rule 4(j) of the Federal Rules of Civil Procedure. Rule 4(j) requires an action to be dismissed without prejudice where service is not made upon defendant within 120 days of the filing of the complaint, unless good cause can be shown for the delay in service. FRCP 4(j). On March 29, 1990, Senior Judge James B. Parsons denied defendant’s Rule 4(j) motion to dismiss. On August 20, 1991 the district court granted summary judgment for plaintiff in the amount of $116,141.71. Defendant appealed.

The Seventh Circuit reversed and remanded1 for further findings on the issue of whether plaintiff could demonstrate “good cause” for the four and a half year delay in service. 983 F.2d 1073 (1992). The Seventh Circuit held that the district court erred by not placing the burden of proving good cause upon plaintiff, the party required to effect timely service. Although evasion of service can constitute good cause, the Seventh Circuit determined that the district court appeared to improperly shift the burden to defendant to prove he was not evading service rather than requiring plaintiff to prove good cause through evidence of defendant’s evasion.

Federal Rule of Civil Procedure 4(j) provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

FRCP 4(j).

The district court must exercise its discretion in making a good cause determination. Floyd v. United States, 900 F.2d 1045, 1047 (7th Cir.1990). Dismissal is mandated by Rule 4(j) unless plaintiff can show good cause for the failure to serve defendant within the 120 day period. Tso v. Delaney, 969 F.2d 373, 375 (7th Cir.1992).

Plaintiff must show reasonable and diligent efforts at effecting service to support a finding of good cause.2 Quann v. White-[333]*333gate-Edgewater, 112 F.R.D. 649, 659 (D.Md.1986) . A plaintiff makes reasonable efforts if he proceeds in a manner reasonably calculated to effect service within 120 days. United States v. Fields, 703 F.Supp. 749, 751 (N.D.Ill.1989). “[H]alf-hearted efforts to serve a defendant will not excuse a plaintiff from adhering to the 120-day deadline.” Geiger v. Allen, 850 F.2d 330, 333 (7th Cir.1988).

Rule 4(j) does not define good cause. Evasion of service is the only example of good cause for a delay in service offered by the legislative history of Rule 4(j). 1982 U.S.C.C.A.N. 4434, 4446 n. 25. While evasion constitutes good cause for a delay in service, the Seventh Circuit has held that evasion cannot be inferred by repeated, though faulty attempts at service of process. Mid-Continent Wood Products, Inc, v. Harris, 936 F.2d 297, 303 (7th Cir.1991). One method of proving evasion is by presenting evidence that defendant either refused to accept his mail or refused to acknowledge service after receipt of the summons and complaint in the mail. Mid-Continent at 303, discussing Nikwei v. Ross School of Aviation, Inc., 822 F.2d 939, 942 (10th Cir.1987) and Benage v. Gibraltar Building & Loan Assoc., Inc., 115 F.R.D. 20, 21 (D.Conn.1987); See Prather v. Raymond Construction Co., Inc., 570 F.Supp. 278, 282 (N.D.Ga.1983) (evasion found where defendant concedes he received the summons and complaint but refused to return the acknowledgment).

If service of process cannot be made within 120 days, plaintiff can move under Federal Rule of Civil Procedure 6(b) to enlarge the time within which to serve defendant. Geiger, 850 F.2d at 333 n. 5.; Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3rd Cir.1987). If a Rule 6(b) extension is re-quested before the time period expires, the court has the discretion to extend the time period for cause shown. If an extension is requested after the expiration of the time period, an extension may be granted where the failure to act was the result of excusable neglect. FRCP 6(b). Some courts have considered not filing for an extension of time to be evidence of a lack of diligence. See Coleman v. Greyhound Lines, Inc., 100 F.R.D. 476, 478 (N.D.Ill.1984).

Here, the facts fail to show that plaintiff made reasonable and diligent efforts at effecting service within the 120 day period. On November 15, 1984, approximately six days after the complaint was filed, plaintiff attempted to serve defendant by certified mail. Three weeks later, the post office returned the certified mail marked “unclaimed.” Within 20 days of the date of mailing (FRCP 4(c)(2)(C)(ii)), plaintiffs counsel was aware that mail service was unsuccessful. Plaintiff then had approximately 94 days remaining in the 120 day period to personally serve defendant. Instead of hiring a process server, plaintiff again attempted to serve defendant by regular mail, which was unsuccessful.

Plaintiff gave no thought to personal service until a few days before the expiration of the 120 day period. On March 6,1985, plaintiff moved for the appointment of a special process server, which the district court granted. It is unclear whether the special process server actually tried to serve defendant before the 120 days expired. Because few, if any, actual attempts at personal service were made during this period, plaintiff can point to no evidence of evasion in the first 120 days. Plaintiff further failed to move for a Rule 6(b) extension of time to enlarge the period for service either prior or subsequent to the 120 day period.3 [334]*334Plaintiff argues that defendant’s failure to deny receiving the summons and complaint by regular mail is evidence of evasion. Unlike the circumstances constituting evasion in Prather, defendant has not admitted to receiving the summons and complaint in the mail and then refusing to return the acknowledgment. Other than mere speculation, plaintiff has no proof that defendant refused to accept his mail or acknowledge mail service during this period.

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Bluebook (online)
151 F.R.D. 331, 1993 WL 433972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-mitchell-ilnd-1993.