Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KNESS v. GRIMM

March 13, 1991

THOMAS T. KNESS, Plaintiff,
v.
CHARLENE E. GRIMM, SCHMITT INVESTIGATIONS AND SECURITY SERVICES, INC., JAMES W. CONWAY, BARRY H. LLOYD, DOROTHY BOUGNEIT-FEIL, CITY OF KENOSHA, WISCONSIN, GREG HEINREICH, and EMPLOYERS INSURANCE OF WAUSAU, Defendants



The opinion of the court was delivered by: MORAN

 JAMES B. MORAN, CHIEF UNITED STATES DISTRICT JUDGE

 Alleging that several employees of the City of Kenosha, Wisconsin ("City") conspired with Charlene Grimm ("Grimm"), a private process server, to harass him at his place of employment, thereby causing him to lose his job, plaintiff Thomas Kness ("Kness") brings this action pursuant to 42 U.S.C. §§ 1983 and 1985 charging that the purpose of the conspiracy was to retaliate against Kness for previously filing civil rights suits against the City and its employees. Grimm and Schmitt Investigations & Security Services, Inc. ("Schmitt") have filed this pre-answer motion to dismiss the complaint on grounds that the action is barred by the applicable statute of limitations. Defendants Greg Heinreich ("Heinreich") and Employers Insurance of Wausau ("E.I.O.W.") joined in that motion and also filed motions to change venue and to dismiss for failure to state any cause of action against them. The remaining defendants, James Conway, Barry Lloyd, Dorothy Bougneit-Feil, and the City, pleaded the statute of limitations as an affirmative defense in their answer to the complaint, and on March 5, 1991, on oral motion, they joined in the present motion to dismiss. *fn1" For the reasons stated below, the motions are granted, and Kness's claim is dismissed as to all defendants.

 BACKGROUND

 Although the facts are in dispute, when considering a motion to dismiss, we must accept the plaintiff's allegations as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). Furthermore, pro se complaints are to be liberally construed, and pro se civil rights complaints may be dismissed only "if it is beyond doubt that there is no set of facts under which the plaintiff could obtain relief." Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 378 (7th Cir. 1988). The following narration of facts, therefore, reflects Kness's version of events.

 As a resident of Kenosha, Kness had a series of disputes with the City beginning in 1983. *fn2" On August 3, 1987, Grimm, an employee of defendant Schmitt, served a summons and complaint, brought by the City, on Kness at Great Lakes Naval Base in Illinois, where Kness was employed. The complaint alleged that Kness had violated a city ordinance by maintaining his lawn at an excessive height. *fn3" Kness claims that Grimm told Kness's supervisors about the continuing legal battles between Kness and the City. Kness's supervisors then told him to end his disputes with the City, pay his fines, and comply with the City ordinances or else he would lose his job. Refusing to give in, Kness continued to pursue his claims against the City and challenge the grass-cutting citation. On March 10, 1988, Kness resigned from his job after months of harassment from his employer.

 Kness filed the present action on July 13, 1990, and all of the defendants now assert that the claim is barred by the applicable statute of limitations. *fn4" They contend simply that the applicable statute of limitations for 42 U.S.C. §§ 1983 and 1985 actions brought in Illinois is two years. Because Kness claims to have been harassed on August 3, 1987, and lost his job on March 10, 1988, the defendants argue, a complaint not filed until July 10, 1990, is time-barred.

 Kness contests both the validity of the motions and the proffered limitations period. First, Kness challenges the sufficiency of his own service of process on Heinreich and E.I.O.W. Kness also contends that because Grimm and Schmitt did not file an answer within the twenty-day period following service, their motion to dismiss is not timely. Additionally, he asserts that the statute of limitations is an affirmative defense to be raised in an answer, not in a pre-answer motion. Finally, Kness argues for the application of a five-year statute of limitations for 42 U.S.C. §§ 1983 and 1985 claims brought in Illinois.

 DISCUSSION

 A. Sufficiency of Process

 A plaintiff is authorized to serve a summons and complaint upon a defendant by mail. Fed. R. Civ. P. 4(c)(2)(C)(ii). Along with the summons and complaint, the plaintiff is to include an acknowledgment and return envelope so that the party being served may notify the plaintiff that he has received the mailing. Id. If the party served fails to return the acknowledgment to the plaintiff within twenty days, the plaintiff is directed to obtain personal service on that party and recover costs. Fed. R. Civ. P. 4(c)(2)(C)(ii), 4(c)(2)(D).

 Heinreich and E.I.O.W. were served by mail but did not return the acknowledgment form to Kness, but Kness did not at that time attempt to obtain personal service. Subsequently, Heinreich and E.I.O.W. filed a series of pre-answer motions, none of which challenge the sufficiency of service of process, and now Kness, the party responsible for obtaining service, is in the unusual position of arguing that service is insufficient, the court lacks personal jurisdiction over the defendants, and consequently that these motions are not properly before the court. For support, Kness relies on Worrell v. B.F. Goodrich Co., 845 F.2d 840 (9th Cir. 1988), cert. denied, 491 U.S. 907, 109 S. Ct. 3191, 105 L. Ed. 2d 699 (1989). Kness's argument is untenable.

 While it is true that service of process on Heinreich and E.I.O.W. was never technically completed, that deficiency does not automatically mean that they are not proper parties. Rule 12(h)(1) of the Federal Rules of Civil Procedure makes clear that insufficiency of service of process is a waivable defense. A party who makes a rule 12(b) motion without including this defense cannot later raise that issue. Fed. R. Civ. P. 12(g). When Heinreich and E.I.O.W. filed their September 7, 1990, motions without consolidating a sufficiency of service of process challenge, service of process ceased to be an issue in this case, and certainly cannot now be raised by Kness. Insufficiency of service of process is a weapon of the defendant, and Kness has cited no authority suggesting that it is available to a plaintiff. Indeed, were we to accept Kness's argument, we would not simply ignore Heinreich's and E.I.O.W.'s motions; rather, we would dismiss Kness's complaint as to these two defendants. See Fed. R. Civ. P. 4(j).

 Kness's reliance on Worrell is misplaced. The issue in that case was whether the twenty-day period for responding to a complaint commences upon receipt of the summons and complaint in the mail or upon return of the acknowledgment. Although the court observed that "service is not deemed complete until the signed acknowledgment is timely returned," 845 F.2d at 842, nothing in that case implies that the plaintiff responsible for obtaining service can challenge the sufficiency of service when the party served has waived this defense. The insufficiency, we note, was not due to the defendants' carelessness but instead to Kness's failure to pursue personal service when the acknowledgment had not been returned within twenty days. Kness's recourse for Heinreich's and E.I.O.W.'s uncooperativeness was compensation for the cost of procuring ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.