Hinkle v. Henderson

• Decision Date: 02 February 1998
• Docket Number: No. 97-1820,97-1820
• Citation: 135 F.3d 521
• Parties: Tomra HINKLE, a minor, by Patricia Hinkle, her mother and next friend, and Patricia Hinkle and Thomas Hinkle, individually, Plaintiffs-Appellants, v. William HENDERSON, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 521

135 F.3d 521

Tomra HINKLE, a minor, by Patricia Hinkle, her mother and next friend, and Patricia Hinkle and Thomas Hinkle, individually, Plaintiffs-Appellants, v. William HENDERSON, M.D., Defendant-Appellee.

No. 97-1820.

United States Court of Appeals Seventh Circuit.

Argued Nov. 6, 1997.

Decided Feb. 2, 1998.

Lance Wittry (argued), Indianapolis, In, for Plaintiffs-Appellants.

Richard E. Stites (argued), Livingston, Barger, Brandt & Schroeder, Bloomington, IL, for Defendant-Appellee.

Before CUMMINGS, MANION and EVANS, Circuit Judges.

MANION, Circuit Judge.

When Tomra Hinkle was born prematurely she was blind; she has since experienced other physical and mental problems. On her behalf her mother sued, among others, the obstetrician whose alleged malpractice (during the labor and delivery) caused these problems. In her previous appeal we reversed the district court's determination that the Illinois eight-year statute of repose had expired, but on remand directed the court to consider the alternative defense of whether the plaintiff exercised reasonable diligence in obtaining service of process over eight years after the injury occurred. The district court again dismissed the suit, and this time we affirm.

I.

Tomra Hinkle's mother sued her obstetrician in state court after Tomra was born blind in January 1984; Tomra suffered from other developmental problems as well. But Mrs. Hinkle waited until January 1992, exactly eight years later, to sue on behalf of her daughter. She then waited another eight months before voluntarily dismissing her suit in September 1992. With a new lawyer she re-filed her case 11 months later in federal court, which had diversity jurisdiction over her claim. The district court dismissed the new suit after finding Illinois' eight-year medical malpractice statute of repose had run on her claim. But Illinois' "savings statute" allows a plaintiff an additional year to re-file a case if she voluntarily dismisses her original suit. We reversed the district court's dismissal, see Hinkle v. Henderson, 85 F.3d 298 (7th Cir.1996) (Hinkle I), though we remanded so that the court could consider defendant Henderson's alternative ground for dismissal--the "plaintiffs failed to exercise reasonable diligence to obtain service in the first action under [Illinois Supreme Court] Rule 103(b) and the Illinois cases that have established the appropriate standard for reasonable diligence." 85 F.3d at 306. ¹

On remand, the district court again dismissed the suit after finding that Hinkle had indeed delayed too long in effecting service of process. In so doing, the court rejected the recommendation of the magistrate judge that Hinkle's suit be dismissed without prejudice; ² the court concluded that Illinois law compelled dismissal with prejudice. Our task on appeal is to determine whether Hinkle is correct that the Illinois Supreme Court would not approve of the district court's dismissal in this case, or, at the very least, would not approve of dismissal with prejudice. See Todd v. Societe BIC, S.A., 9 F.3d 1216, 1221 (7th Cir.1993) (en banc) ("When acting under the diversity jurisdiction, a federal court must attempt to decide the case as the highest court of the state supplying the law would do.").

II.

As we stated in Hinkle I, the Illinois savings statute "affords plaintiffs a second chance to have their case heard on the merits when their first suit is dismissed for some procedural defect." 85 F.3d at 302. But as we also noted then,

[P]laintiff waited until the very last day of the eight-year repose period to file suit, then took no action in the circuit court for eight months, failing even to attempt service on defendant, received a voluntary dismissal, and finally waited just short of one year to refile the case in district court, at long last serving defendant more than nine years after the alleged acts of negligence. Unaware that plaintiff filed suit in circuit court, defendant's ability to predict liability was undoubtedly compromised.

Id. at 303.

Thus, the problem with Tomra Hinkle's federal court case relates to her initial state court suit against Dr. Henderson (originally, there were other defendants, but they have been voluntarily dismissed by Hinkle). While the federal suit technically was filed within the one-year time period allowed by Illinois' savings statute, Hinkle's initial state suit lay pending in an Illinois court for eight months before her attorney voluntarily dismissed it. In that time, she never served Dr. Henderson with the complaint.

A suit that is filed but not served has no legal impact because Illinois' (as in most jurisdictions) rules of civil procedure require service of process; otherwise the defendant typically is unaware that he has been sued. In Illinois service "is the sole legally sufficient means of alerting defendants to the pendency of a civil suit," and prompt service is required so that a defendant may "investigate, prepare and litigate the issues raised." O'Connell v. St. Francis Hospital, 112 Ill.2d 273, 97 Ill.Dec. 449, 453, 492 N.E.2d 1322, 1326 (1986). The adage "justice delayed is justice denied" is appropriately used to criticize unnecessarily protracted court proceedings. It certainly applies here; the Illinois Supreme Court has even enacted a rule declaring that suits not served with "reasonable diligence" may (and in some cases must) be dismissed by Illinois courts. Illinois Supreme Court Rule 103(b) provides:

If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court's own motion.

There is no dispute that Hinkle did not serve Henderson during the eight months her suit lay pending in Illinois state court. Hinkle does not claim that she could not find Henderson to serve him (even then, service by publication would have been available under Illinois law, 705 ILCS 405/216). Since 1967, Henderson has maintained an office in Bloomington, Illinois, and he also is listed in the phone book. Hinkle does not excuse her failure to serve; her new attorney seems to suggest that Hinkle's original legal team simply dropped the ball. Whatever the reason for the failure to serve, the issue now is whether that failure dooms her complaint in federal court.

The Illinois Supreme Court has had numerous occasions to apply Rule 103(b)'s "reasonable diligence" standard. See Womick v. Jackson County Nursing Home, 137 Ill.2d 371, 148 Ill.Dec. 719, 561 N.E.2d 25 (1990) (collecting cases). In nearly each instance, the court has instructed that the standard is a fact-intensive inquiry suited to balancing, not bright lines. Among others, weighed in the balance are these factors: (1) the length of time used to obtain service of process; (2) the activities of the plaintiff; (3) plaintiff's knowledge of the defendant's location; (4) the ease with which the defendant's whereabouts could have been ascertained; (5) special circumstances which would affect plaintiff's rights; (6) actual service on the defendant. Id., 148 Ill.Dec. at 721, 561 N.E.2d at 27. We already have noted that Hinkle did little to effect service on Henderson--in fact, she did nothing--and that she knew where he could be served. And this is not a case where there was a mere delay in "actual service"; to the contrary, Hinkle had not obtained service upon Henderson before dismissing her suit. Furthermore, she has pointed to no "special circumstances" that might have affected her efforts, or more appropriately, lack thereof.

The only remaining factor to consider is the length of time used to obtain service of process. Here, Hinkle's former attorney filed her initial suit on the last possible day under the statute of repose, let it sit in state court for eight months before voluntarily dismissing it (without effecting service), then new counsel took 11 months before refiling her complaint in federal court and serving it shortly thereafter. As the Illinois Supreme Court has stated, "[w]here a plaintiff (1) fails to exercise due diligence, particularly where his failure continues long after the expiration of the statute of limitations; (2) takes a voluntary dismissal ...; and (3) refiles his action ..., even though promptly effecting service on his refiled complaint, justice is truly and unnecessarily delayed." O'Connell, 97 Ill.Dec. at 453, 492 N.E.2d at 1326. This sequence describes the procedural history of Hinkle's case, which is why we have no difficulty concluding that the Illinois Supreme Court would approve of a dismissal here. Indeed, since O'Connell, Illinois' appellate courts routinely have dismissed cases involving delays equal to (or shorter than) Hinkle's. See, e.g., Sinn v. Elmhurst, 243 Ill.App.3d 787, 184 Ill.Dec. 56, 59, 612 N.E.2d 932, 935 (finding dismissal appropriate where eight months elapsed between date complaint was filed and process was served), appeal denied, 152 Ill.2d 580, 190 Ill.Dec. 911, 622 N.E.2d 1228 (1993); Paglis v. Black, 178 Ill.App.3d 1062, 128 Ill.Dec. 186, 187-88, 534 N.E.2d 206, 207-08 (dismissal appropriate where plaintiffs filed suit just before statute of limitations expired and then waited another five-and-a-half months before attempting service), appeal denied, 126 Ill.2d 561, 133 Ill.Dec. 670, 541 N.E.2d 1108 (1989); Penrod v. Sears, Roebuck & Co., 150 Ill.App.3d 125, 103 Ill.Dec. 346, 349, 501 N.E.2d 367, 369 (1986) (finding lack of reasonable diligence because plaintiff delayed seven months in obtaining issuance of summons for purposes of serving defendant).

These cases speak loud and clear--Illinois courts look...