Dumas v. Decker, 10 C 7684

• Decision Date: 16 May 2012
• Docket Number: 10 C 7684
• Citation: Dumas v. Decker, 10 C 7684 (N.D. Ill. May 16, 2012)
• Parties: BETTY J. DUMAS and JEROME J. CASIMIR, Plaintiffs, v. CHARLES DECKER, KENNETH R. ROCHMAN, SABRE GROUP, LLC, JASON A. BAUMBACH, and OPTIMUM FINANCIAL, INC., Defendants.
• Court: U.S. District Court — Northern District of Illinois

BETTY J. DUMAS and JEROME J. CASIMIR, Plaintiffs,

v. CHARLES DECKER, KENNETH R. ROCHMAN, SABRE GROUP, LLC, JASON A. BAUMBACH,and OPTIMUM FINANCIAL, INC., Defendants.

10 C 7684

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

May 16, 2012

Judge Feinerman

MEMORANDUM OPINION AND ORDER

Plaintiffs Betty J. Dumas and Jerome J. Casimir brought this suit against Charles Decker, Kenneth R. Rochman, Sabre Group, LLC, Jason A. Baumbach, and Optimum Financial, Inc., alleging violations of 42 U.S.C. §§ 1981 and 1983, the Illinois Consumer Fraud and Deceptive Practices Act ("ICFA"), 815 ILCS 505/1 et seq., and the Uniform Deceptive Trade Practices Act ("DTPA"), 815 ILCS 510/1 et seq. Defendants moved to dismiss the case under Federal Rules of Civil Procedure 12(b)(1), 12(b)(4), and 12(b)(5). The court denied the Rule 12(b)(1) motion for reasons stated on the record during the presentment hearing. The parties then briefed the remaining issues. For the following reasons, the case is dismissed under Rules 4(m) and 12(b)(5).

On December 2, 2010, Plaintiffs submitted their complaint and filed an application for leave to proceed in forma pauperis. Docs. 1, 5. The in forma pauperis application was denied a week later because it was incomplete. Doc. 6. On January 6, 2011, Plaintiffs paid the $350 filing fee, and the complaint was deemed filed as of that date. Docs. 10, 15. On January 11,2011, Plaintiffs moved the court to order the Clerk to issue summons to Defendants. Doc. 11. The court denied that motion, stating: "[B]ecause Plaintiffs are not in forma pauperis, they are obligated to ensure that Defendants are served with summons. Plaintiffs may contact the Clerk's Office to obtain the appropriate forms." Doc. 14. Summons were issued on January 21, 2011. Doc. 16.

Nothing happened for nearly three months. On April 17, 2011, the court set a status hearing for May 11, 2011. Doc. 17. On May 9, 2011, Plaintiffs moved under Rule 4(m) to enlarge by ninety days the time for serving summons. Doc. 18. The court granted the motion, extending the time to effectuate service to July 6, 2011; in so doing, the court stated: "Plaintiffs are cautioned that merely sending Defendants the waiver of summons form does not effectuate service, and that if Defendants do not waive [service of] summons, actual service must be effectuated." Doc. 21. On July 6, 2011, Plaintiffs filed their second motion to extend the time for serving summons, this time for forty-five days. Doc. 22. The court granted the motion, extending the deadline to August 19, 2011, and expressing warning: "This is the final extension that will be granted for effectuating service." Doc. 24.

At a status hearing on August 25, 2011, Plaintiff Casimir told the court that summons had been served on all Defendants. Doc. 25. That day, Plaintiffs filed the executed returns. Docs. 26-30. The returns indicate that Plaintiff Casimir purported to serve the summonses on August 17, 2011. Ibid. The returns say that for each defendant, summons was served on Heather Ottenfeld at 120 West Madison, Suite 918, Chicago, Illinois, who is identified as "Attorney at staff at their Chicago area office" and "Attorney of Record at Chicago area office." Ibid. The returns also say that each summons was served "personally upon the defendant," and also thatcopies were left at each defendant's "dwelling house or usual place of abode with a person of suitable age and discretion then residing therein." Ibid.

Defendants somehow caught wind of this case, made their appearance, and moved to dismiss on several grounds, including under Rule 12(b)(5) for improper service. Doc. 34. Rule 12(b)(5) provides that a defendant may seek dismissal for "insufficient service of process." Fed. R. Civ. P. 12(b)(5). When a defendant challenges the sufficiency of service, the plaintiff bears the burden of demonstrating that proper service occurred. See Cardenas v. City of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011); Homer v. Jones-Bey, 415 F.3d 748, 754 (7th Cir. 2005); Falconer v. Gibsons Rest. Grp., LLC, 2011 WL 43023, at *1 (N.D. Ill. Jan. 6, 2011). In determining whether summons was personally served, the court may consider affidavits, other documentary evidence, depositions, and oral testimony. See Falconer, 2011 WL 43023, at *1; 5B Wright & Miller, Federal Practice and Procedure § 1353, at 344-45 (3d ed. 2004). Neither party requested an evidentiary hearing, so the motion will be resolved based on the parties' briefs and attached evidentiary materials.

It is beyond dispute that service was improper in at least two respects. First, Casimir served the summonses. Because Casimir is a plaintiff, this violated Rule 4(c)(2), which states: "Any person who is at least 18 years old and not a party may serve a summons and complaint." Fed. R. Civ. P. 4(c)(2) (emphasis added); see Constien v. United States, 628 F.3d 1207, 1213-15 (10th Cir. 2010); Gharb v. Rockwell Automation, 2011 WL 5373989, at *3 (N.D. Ill. Nov. 4, 2011). Second, Defendants were not served by the means permitted by Rule 4(e) (for the individual defendants) or Rule 4(h) (for the entity defendants). Plaintiffs do not argue otherwise, so it suffices to say that the record evidence conclusively shows—contrary to the sworn returns of service—that the individual defendants did not dwell at the place of service, that the entitydefendants were not located at the place of service, and that Ottenfeld was not authorized to accept service on behalf of any of the defendants. Doc. 34-2 (declarations of Heather Ottenfeld and the three individual defendants); see Hu v. Schurman, 2009 WL 2382234, at *2 (C.D. Ill. July 29, 2009) (granting 12(b)(5) motion where defendant averred that he was not properly served and where return of service suffered from "inconsistencies").

Rule 4(m) provides:

If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). The court twice extended the time for service under Rule 4(m). Docs. 21, 24. The extensions were for 135 days—longer than the initial 120-day period—and the second order warned that the second extension was final. Plaintiffs' failure to properly effectuate service by the date set forth in the second order warrants dismissal of all five defendants, and thus of this suit. See Cardenas, 646 F.3d at 1005-07; Troxell v. Fedders of N. Am., Inc., 160 F.3d 381 (7th Cir. 1998); Falconer v. Gibsons Rest. Grp., LLC, 2011 WL 833613, at *3-4 (N.D. Ill. Mar. 4, 2011).

Plaintiffs oppose this result not by arguing that service was proper, but by requesting a third extension to serve summons. When presented with an extension request under Rule 4(m), "a district court must first inquire whether a plaintiff has established good cause for failing to effect timely service. If good cause is shown, the court shall extend the time for service for an appropriate period." Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). "If, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time." Ibid.

Plaintiffs say they had good cause for failing to effect timely service. With respect to the Rule 4(c)(2) violation, Plaintiffs claim that they mistakenly interpreted the court's orders extending the time for service to have authorized Casimir to serve the summonses himself. Doc. 44 at 6. Plaintiffs do not support this claim with an affidavit or other evidence; the claim is implausible in any event, as the extension orders cannot conceivably be interpreted to override Rule 4(c)(2) and authorize Casimir to effectuate service himself. Plaintiffs also maintain that Defendants "ha[ve] a pattern of hiding their identity and list a P.O. Box for the address of 'Sabre Group' in Carbondale, and offices for Sabre in Chicago and Carbondale Illinois are listed as 'S.I. Security', its very confusing as to who they are." Id. at 8. Plaintiffs provide no evidence to support their charge that Defendants were attempting to hide their identities or addresses. Indeed, a search conducted on the Illinois Secretary of State's website (www.cyberdriveillinois.com) reveals a street address and registered agent for both entity defendants. Had Plaintiffs conducted that search, which takes a couple of minutes at most, they could have obtained Optimum's and Sabre's business addresses—and also the addresses of Baumbach and Rochman, two of the individual defendants, who are listed as registered agents of Optimum and Sabre, respectively. Given the circumstances, Plaintiffs have not shown the "good cause" necessary for a mandatory third extension under Rule 4(m). See Rose v. U.S. Postal Serv., 352 F. App'x 82, 84 (7th Cir. 2009) (holding under comparable circumstances that the pro se plaintiff failed to establish good cause under Rule 4(m), reasoning that "neither a party's pro se status nor his inexperience as a litigant excuse him from complying with the requirements of Rule 4(m)"); Stone v. Chi. Inv. Grp., LLC, 2011 WL 6841817, at *6 (N.D. Ill. Dec. 29, 2011) ("Typically, to constitute good cause for the extension of the service period under Rule 4(m), theplaintiff must show a valid reason for delay, such as the defendant's evading service.") (internal quotation marks omitted).

Because there is no good cause, the court must decide as a discretionary matter whether to dismiss the case or grant a further extension. See Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002). Some factors that guide the court's discretion include: "(1) whether the expiration of a statute of limitations during the...