Cardenas v. City of Chicago

• Decision Date: 20 July 2011
• Docket Number: No. 10–3301.,10–3301.
• Citation: 646 F.3d 1001,80 Fed.R.Serv.3d 22
• Parties: Maria CARDENAS, et al., Plaintiffs–Appellants,v.CITY OF CHICAGO, a municipal corporation, and Alejandro Gallegos, a Chicago Police Officer, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

646 F.3d 1001

80 Fed.R.Serv.3d 22

Maria CARDENAS, et al., Plaintiffs–Appellants,

v.CITY OF CHICAGO, a municipal corporation, and Alejandro Gallegos, a Chicago Police Officer, Defendants–Appellees.

No. 10–3301.

United States Court of Appeals, Seventh Circuit.

Argued June 8, 2011.Decided July 20, 2011.

John C. Ambrose, Attorney, Bradley M. Cosgrove (argued), Christopher J. Goril, Ambrose & Associates, Chicago, IL, for Plaintiffs–Appellants.Jennifer Erickson Baak (argued), Attorney, City of Chicago Law Department, Mara S. Georges, Attorney, Office of the Corporation Counsel, Appeals Division, Chicago, IL, for Defendants–Appellees.

Before POSNER, KANNE, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge.

Chicago police officer Alejandro Gallegos led a team of officers in executing a search warrant at the apartment of Maria Cardenas, Evanhido Cardenas, and Natalia Barron (the “Plaintiffs”). The officers entered the apartment, without knocking and announcing their presence, and then handcuffed and harshly handled the residents. The residents subsequently sued the City of Chicago and Officer Gallegos, bringing three state-law and two federal claims based on the allegedly unlawful search. They did not properly serve Officer Gallegos with process, however, and he moved to dismiss the complaint against him more than 360 days after service was due. The district court granted his motion to dismiss, finding that the single attempt at service was inadequate, that no good cause for the failure was shown, and that an extension was not warranted by the circumstances. It then dismissed the City, as the City could not be held liable under Illinois law without the officer's presence in the suit. We affirm.

I. Background

Officer Gallegos obtained a search warrant for the residence of Maria Cardenas, Evanhido Cardenas, and Natalia Barron, authorizing officers to search the apartment for a wanted individual, narcotics, money, and drug paraphernalia. The team of officers, led by Officer Gallegos, entered the apartment on December 14, 2007, without knocking or announcing their presence. The warrant did not authorize this procedure. According to the complaint, each of the Plaintiffs was in the residence, threatened with firearms, and restrained against his or her will. The Plaintiffs allege that the officers searched recklessly, destroying some belongings and damaging the apartment itself. The officers left empty-handed, having found no person or object described in the warrant.

Believing the officers' conduct violated their rights, the Plaintiffs sued Officer Gallegos and the City of Chicago in state court on April 22, 2008, alleging unlawful execution of a search warrant, assault, battery, and a federal count of unlawful search and seizure. The Plaintiffs attempted to serve both defendants on May 9, 2008, through the Cook County Sheriff. The Sheriff successfully served the City, but Officer Gallegos's summons—which the Plaintiffs had directed to the Chicago Police Department (“CPD”) Headquarters, care of the Superintendent—was returned unserved on May 12, 2008.

The City removed the case to federal court on June 2, 2008.¹ The removal notice stated that Officer Gallegos had not yet been served. Counsel for the Plaintiffs then called CPD on June 19, 2008, and asked how to properly serve a CPD officer. Counsel undertook no further service-related effort until November 12, 2008, when he sent a letter to the City's counsel requesting that the City waive service for Officer Gallegos or that it at least provide Officer Gallegos's current address. The two counsel spoke on December 17, 2008, and they dispute the contents of the telephone conversation: the City alleges that it described how the CPD Office of Legal Affairs facilitates the service of an officer, but Plaintiffs' counsel claims that no mention of insufficient service was made. They agree, however, that the City indicated it lacked the authority to waive service on Officer Gallegos's behalf and that it withheld his address due to policies regarding officer safety and privacy.

The City and Officer Gallegos jointly moved to dismiss the suit on September 28, 2009.² They first argued that, because Officer Gallegos had never been served, the complaint against him must be dismissed under Rule 12(b)(5). The motion noted that the CPD's Office of Legal Affairs was the appropriate entity to facilitate personal service on Officer Gallegos. They then argued that the complaint against the City must be dismissed under Rule 12(b)(6) because the state's Tort Immunity Act would not support municipal liability resulting from an officer's act where the officer himself was not liable.

The Plaintiffs opposed the motions, claiming that their attempt to serve Officer Gallegos through the Superintendent was sufficient and that the City counsel's stated settlement intentions led them to believe further service attempts were unnecessary. While the motions to dismiss were pending, the Plaintiffs obtained an alias summons for Officer Gallegos on October 14, 2009. Their counsel served the summons through CPD's Office of Legal Affairs on November 9, 2009, approximately 525 days after the suit was removed.

The district court granted the joint motion to dismiss. It first determined that the Plaintiffs had not properly served Officer Gallegos within the 120–day limit established by Rule 4(m). It also determined that the Plaintiffs lacked good cause for the failed service and declined to grant a discretionary extension. The district court then determined that, without Officer Gallegos in the suit, liability would not lie against the City. It dismissed the Plaintiffs' suit with prejudice on February 15, 2010. The district court subsequently denied the Plaintiffs' motion to alter or amend the judgment, in which they argued that the court had not considered all of the appropriate factors in its extension decision.

II. Analysis

The Plaintiffs now appeal the dismissal of their suit, presenting two issues for our review. First, they contend that the district court erred in granting Officer Gallegos's motion to dismiss pursuant to Rule 12(b)(5). They argue that they successfully served Officer Gallegos within the allotted time and that—if we find they did not—the district court erred in denying them an extension during which they could perfect service. Second, they contend that if we conclude the district court erred in its service of process determinations, we must reverse its grant of the City's motion to dismiss pursuant to Rule 12(b)(6) and reinstate their claims against the City. We do not reach and express no opinion on their second issue, as it is clearly conditioned upon our determination regarding their first issue.

After commencing a federal suit, the plaintiff must ensure that each defendant receives a summons and a copy of the complaint against it. Fed.R.Civ.P. 4(b), (c)(1). Unless the plaintiff can demonstrate good cause for being unable to do so, she must accomplish this service of process within 120 days of filing to avoid possible dismissal of the suit. Fed.R.Civ.P. 4(m). The same 120–day period applies where suits are removed to federal court from state court, except that the period commences upon the date of removal. See Fed.R.Civ.P. 81(c)(1); Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122–23 (7th Cir.2001); Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th Cir.2010). These service requirements provide notice to parties, see Henderson v. United States, 517 U.S. 654, 672, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996), encourage parties and their counsel to diligently pursue their cases, see Geiger v. Allen, 850 F.2d 330, 331 (7th Cir.1988), and trigger a district court's ability to exercise jurisdiction over a defendant, see United States v. Ligas, 549 F.3d 497, 500 (7th Cir.2008).

A defendant may enforce the service of process requirements through a pretrial motion to dismiss. Fed.R.Civ.P. 12(b)(5). The plaintiff bears the burden to demonstrate that the district court has jurisdiction over each defendant through effective service. See Homer v. Jones–Bey, 415 F.3d 748, 754 (7th Cir.2005). If, on its own or on the defendant's motion, the district court finds that the plaintiff has not met that burden and lacks good cause for not perfecting service, the district court must either dismiss the suit or specify a time within which the plaintiff must serve the defendant. Fed.R.Civ.P. 4(m). As the text of the rule indicates, the decision of whether to dismiss or extend the period for service is inherently discretionary, Ligas, 549 F.3d at 501, and we will review the district court's judgment only for abuse of that discretion. Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir.2002); Kurka v. Iowa Cnty., Iowa, 628 F.3d 953, 957 (8th Cir.2010).

A. Insufficient Service of Process

The Plaintiffs first argue that the district court erred in its consideration of their initial attempt to serve Officer Gallegos. They contend that they had properly served Officer Gallegos on May 9, 2008, and that we should reinstate their claims accordingly. We review de novo the district court's determination regarding the sufficiency of the Plaintiffs' service of process. See uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 423–24 (7th Cir.2010); Williams v. Leach, 938 F.2d 769, 771 (7th Cir.1991).

The Plaintiffs' contention that they properly served Officer Gallegos within 120 days as required by Rule 4(m) lacks merit. Their asserted belief that they properly served Officer Gallegos on May 9, 2008—as well as their incredible claim that “[i]t was only upon being served with Defendant's Motion to Dismiss” that they realized that their attempt was “supposedly deficient”—is flatly belied by (1) the return of the summons three days later marked as not served, (2) their post-removal inquiry regarding the proper means of service, and (3) their request for the city to waive service on Officer Gallegos's...