Williams v. Leach, 90-1594
| Decision Date | 30 July 1991 |
| Docket Number | No. 90-1594,90-1594 |
| Parties | Robert E. WILLIAMS, Plaintiff-Appellant, v. William E. LEACH, Star Number 2369, individually and in his official capacity as an Illinois State Police Officer, Officer John Doe, individually and in his official capacity as an Illinois State Police Officer, Officer James Doe, individually and in his official capacity as an Illinois State Police Officer, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gwendolyn D. Anderson, Anderson & Associates, Chicago, Ill., for plaintiff-appellant.
Bart T. Murphy, Jennifer A. Keller, Asst. Atty. Gen., Office of the Atty. Gen., Civ. Appeals Div., Chicago, Ill., for defendants-appellees.
Before FLAUM, EASTERBROOK and MANION, Circuit Judges.
Robert Williams appeals the dismissal of his civil rights and tort action against defendant William Leach, a Sergeant with the Illinois Department of State Police. The district court dismissed Williams' suit because his counsel had failed to perfect service of process on Leach within the statutorily designated time period. Also, the district court noted that by the time Williams had filed his complaint, all of the underlying causes of action were time-barred. We have reviewed the record and the law governing this case and conclude that the district court was correct in both its contentions. We therefore affirm the court's decision to dismiss Williams' case. 1
Williams' problems in litigating what strikes us to have been a meritorious claim center on the performance of his attorney. The record of the case, the pleadings, and the briefs on appeal are a catalogue of his attorney's apparent negligence and disregard for the rules of this court. Following our discussion of the merits, we necessarily address our objections to the attorney's performance and sanctions.
Since we are reviewing a dismissal by the district court, we will recite the facts as asserted in Williams' complaint. On November 27, 1986, Williams was involved in a traffic accident on a major highway outside Chicago, Illinois. Illinois state police arrived at the scene and found Williams unconscious in his car after having suffered a head trauma. Williams, accompanied by Sergeant Leach, was transferred to a nearby hospital for immediate medical attention.
In the course of investigating the accident, the police checked Williams' driving record and name against computer records and were informed of an outstanding warrant in New York (issued in 1974) for a fugitive by the name of Robert Williams. Upon receiving this information, two unnamed police officers (later defendants) went to the hospital and told Sergeant Leach about the warrant. Leach then entered the examining room and interrupted the medical treatment being administered to Williams (who was now conscious), and arrested him pursuant to the warrant. Before the medical treatment was completed and over the doctor's objections, Williams was taken to an Illinois State Police station. Several hours later, when the police discovered that they had the wrong Robert Williams, and that he was not the fugitive from New York, they released him.
Nearly two years later, on November 25, 1988, Williams filed a four-count complaint in U.S. District Court against Sergeant Leach and two unnamed State policemen. Williams sued under 42 U.S.C. Secs. 1981, 1983, and 1985 for the deprivation of his liberty without due process of law in contravention to protections guaranteed by the Fourteenth Amendment to the U.S. Constitution. Also included in his complaint were pendent state law claims for assault, battery, false arrest, and malicious prosecution.
This case was dismissed by the district court on August 16, 1989, pursuant to Leach's motion claiming that Williams had failed to satisfy service of process requirements of Fed.R.Civ.P. 4(j). 2 The district court found that Williams did not effect service of process on Leach until 151 days after filing suit, nor did he establish good cause for his delay in serving process. The court noted that Williams, in his effort to resist Leach's motion to dismiss, argued that the statute of limitations would bar his claim if Leach's Rule 4(j) motion was granted. The court, agreeing with Williams that the statute of limitations operates as a bar to his claim, added:
Although some may consider this harsh, Congress and the courts have recognized the possibility that a plaintiff's action could be time barred if the statute of limitations runs prior to the court's dismissal under 4(j). Geiger [v. Allen ], 850 F.2d at 334 [7th Cir.1988]. Such a result does not prevent the operation of Rule 4(j). 3
Williams did not appeal from this ruling dismissing his case.
One month later, on September 18, 1989, Williams filed a new complaint identical to that dismissed on August 16, 1989. This time Williams attempted to serve the complaint on Leach by mail. Leach's counsel responded to the attempted mail service of process in a letter to Williams' lawyer informing her that the attempted mail service did not comply with the requirements under Fed.R.Civ.P. 4(c)(2)(C)(ii). 4 The 120-day statutory period for service of process for the September 18, 1989 complaint expired on January 16, 1990 without Williams and his lawyer ever having attempted to perfect service of process on Leach.
On January 26, 1990 Leach once again filed a Rule 4(j) motion to dismiss Williams' complaint which was granted by the district court on February 21, 1990. The court found that Williams had failed to satisfy the legal requirements for mailing service of process and thus he failed to serve Leach within the statutorily designated time period. Leach's motion also noted that the statutes of limitations on Williams' underlying counts had expired. The court agreed, and dismissed the case with prejudice. This appeal stems exclusively from the February 21, 1990 dismissal of the second filing of Williams' case.
Our review of a district court's dismissal is de novo. Rockford Mutual Insurance Co. v. Amerisure Insurance Co., 925 F.2d 193 (7th Cir.1991). As stated earlier, Fed.R.Civ.P. 4(j) compels a plaintiff to serve the complaint upon the defendant within 120 days after filing of the complaint or his case will be dismissed by the court unless the plaintiff can show good cause for any noncompliance. Counsel for Williams attempted to serve Sergeant Leach a copy of the September 18, 1989 complaint via the mail. Federal Rule of Civil Procedure 4(c)(2)(C)(ii) contains specific requirements for successfully executing service of process by the mail. It reads in pertinent part:
A summons and complaint may be served upon a defendant....--
* * * * * *
by mailing a copy of the summons and of the complaint (by first-class mail, postage pre-paid) to the person to be served, together with two copies of a notice and acknowledgment of service ... and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this subdivision of the rule is received by the sender within 20 days after date of mailing, service of such summons and complaint shall be made under subparagraph (A) [personal service] or (B) [service by a U.S. marshall or court appointee] in the manner prescribed by subdivision (d)(1) or (d)(3).
The parties do not dispute that at the time of the case's dismissal, the statutory 120 day period to serve process had expired. The district court, in its brief order, noted that Williams admitted to "technical defections" from the requirements under Fed.R.Civ.P. 4(c)(2)(C)(ii) for service of process by mail. Evidence in the record reveals that counsel for Williams failed to provide Sergeant Leach with the required notice and acknowledgment of service forms and the required postage paid, self-addressed envelope in which to return the forms. Leach's counsel, the state attorney general, alerted Williams' counsel early on to these deficiencies. At no time prior to the expiration of the statutory 120 day period or before the case's dismissal did Williams' counsel attempt to remedy the deficiencies in the service.
In Geiger v. Allen, 850 F.2d 330, 332 n. 3 (7th Cir.1988), this court stated that "[t]he rule in this and other circuits is that service by mail is not complete until an acknowledgment is filed with the court." (citing Del Raine v. Carlson, 826 F.2d 698, 705 (7th Cir.1987)); Green v. Humphrey Elevator & Truck Co., 816 F.2d 877 (3d Cir.1987)). Case law from other circuits holds that the requirements of Rule 4(c)(2)(C)(ii) are to be strictly complied with. See Gulley v. Mayo Foundation, 886 F.2d 161, 165-166 (8th Cir.1989); Young v. Mount Hawley Ins. Co., 864 F.2d 81, 82-83 (8th Cir.1988), cert. denied, --- U.S. ----, 110 S.Ct. 281, 107 L.Ed.2d 261 (1989); Norlock v. City of Garland, 768 F.2d 654, 657 (5th Cir.1985).
Williams failed to provide Leach the essential and required items under the rules which permit Leach to acknowledge receipt of the summons and complaint in a legally recognizable way. Given the inadequate manner in which service of process was executed and the fact that no acknowledgment to the suit was ever filed, dismissal of this case is not only permitted, but required by the applicable law. Williams also failed to observe the corollary to Rule 4(c)(2)(C)(ii) service by mail instruction where he
neglected to attempt personal service on Leach when no acknowledgment was received 20 days after service of process was mailed. For all the foregoing reasons coupled with the fact that Williams never advanced a "good cause" for the deficiencies and delays in service of process, we affirm the district court's decision to dismiss Williams' case.
The district court in its February 21, 1990 order, issued alternative grounds for its dismissal of Williams' claim. It said: "As set forth in the ...
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