When Hawkotte then filed a motion to be dismissed from Bachenski's Complaint under Rule 4(j), Bachenski's counsel responded by showing that they had made repeated efforts to mail summonses to Hawkotte at several different addresses--each of those efforts having been returned by the postal authorities marked "unclaimed." No showing was made as to why Bachenski's counsel continued to resort to the mails, rather than employing a professional process server to bring Hawkotte into the case, or relatedly as to why Bachenski and his counsel had been unable to do what Malnati's counsel had shown to be possible (by his obtaining service on Hawkotte shortly after Malnati's Third Party Complaint had been filed against Hawkotte).
Where service on a defendant has not been accomplished within the 120-day period established by Rule 4(j), that Rule mandates dismissal of that defendant absent a showing of good cause ( Tso v. Delaney, 969 F.2d 373, 375-77 (7th Cir. 1992) is only one of the most recent of a passel of decisions from our Court of Appeals so holding). And of course the burden of showing good cause rested squarely on Bachenski's shoulders (again Tso and Williams v. Leach, 938 F.2d 769, 771-72 (7th Cir. 1991) are among a host of cases addressing the problem in those terms). Based on what had been said (and not said) to this Court by Bachenski's counsel in an attempted explanation of the failure to obtain service on Hawkotte, this Court ruled on February 19, 1992 that no such good cause had been shown, and it therefore granted Hawkotte's motion for dismissal.
Bachenski's lawyers then moved for reconsideration, coupling that motion with the tender of a proposed Second Amended Complaint ("SAC") naming Hawkotte. Counsel for Hawkotte opposed both those efforts, asserting the statute of limitations as the basis for resisting the filing of the SAC. This Court's already-referred-to March 31, 1992 memorandum opinion and order then rejected both of Bachenski's motions.
At that point, then, Hawkotte was out of Bachenski's case--but Flash Cab was not. Flash Cab then moved for a summary judgment decreeing its dismissal as well, invoking established Illinois doctrine
under which (1) any with-prejudice dismissal of a principal or an agent mandates the dismissal of the party--whether agent or principal--that has a respondeat superior relationship with the first-dismissed party and (2) a dismissal on statute of limitations grounds is considered a dismissal on the merits for that purpose ( Towns v. Yellow Cab Co., 73 Ill. 2d 113, 124-25, 382 N.E.2d 1217, 1221-22, 22 Ill. Dec. 519 (1978); Martin v. Yellow Cab Co., 208 Ill. App. 3d 572, 574-75, 567 N.E.2d 461, 463-64, 153 Ill. Dec. 503 (1st Dist. 1990) (a case startlingly parallel to this one); Stroud v. News Group Chicago, Inc., 215 Ill. App. 3d 1006, 1010-11, 576 N.E.2d 152, 155-56, 159 Ill. Dec. 483 (1st Dist. 1991) (same)). That left this Court with no choice other than to grant Flash Cab's motion to be dismissed out of the case, and this Court did so in an oral ruling.
Now Bachenski's counsel urges that Bachenski "should be granted a new trial [sic] as to the defendant John Hawkotte" (Motion ) and "should be granted a new trial [sic] as to defendant [sic] Flash Cab Company" (Motion ). But the unfortunate consequences of the interaction of Rule 4(j) and the Towns-Martin-Stroud doctrine were caused not by this Court but by the failure of Bachenski's counsel to avoid being wrecked on the shoals despite the clear warnings of those rules of law--just as the unfavorable jury verdict against Malnati was caused not by this Court but by the nonpersuasiveness of Bachenski's counsel in urging Malnati's negligence. At least since Link v. Wabash R.R., 370 U.S. 626, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962) the rule of law in federal courts has been that the consequences of a lawyer's handling of a case are to be borne by the client--as Link, id. at 633-34 put it succinctly:
Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.
Bachenski had his day in court against Malnati, and he cannot complain that the factfinder jury saw things differently than he would have liked. And although Bachenski did not enjoy the same kind of day in court against either Flash Cab or Hawkotte, that result was occasioned by the inexorable operation of well-established rules of law. Bachenski's post-trial motion is denied in its entirety.
Milton I. Shadur
Senior United States District Judge
Date: January 5, 1993