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ONCOLOGY THERAPEUTICS v. OLYMPIA FIELDS INTERNAL MEDICINE

May 14, 2003

ONCOLOGY THERAPEUTICS NETWORK JOINT VENTURE, L.P, PLAINTIFF,
v.
OLYMPIA FIELDS INTERNAL MEDICINE ASSOCIATES, S.C. (INC.) D/B/A HORIZON HEALTHCARE ASSOCIATES, S.C. AND OLYMPIA FIELDS EYECARE, LTD. DEFENDANTS.



The opinion of the court was delivered by: Arlander Keys, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Oncology Therapeutics Network Joint Venture, L.P. ("Oncology"), filed suit against Olympia Fields Internal Medicine Associates, S.C. d/b/a Horizon Healthcare Associates, S.C. ("OFIMA"), and Olympia Fields Eyecare, Ltd. ("Eyecare"), alleging that these Defendants ordered and received merchandise from Oncology and have refused to pay for that merchandise. Eyecare filed a Motion to Dismiss, arguing that it never ordered or received merchandise from Oncology, and denying any business affiliation with OFIMA that would justify holding Eyecare responsible for OFIMA's debts. In addition, Eyecare claims that it has never been served with a summons and the Complaint in this cases. For the reasons set forth below, the Court grants Eyecare's Motion to Dismiss.

FACTS

Oncology is a Delaware limited partnership, based in California, that manufactures and. sells pharmaceuticals used in the treatment of cancer. (Plaintiff's Memo at 1.) OFIMA is a general medical practice with its principal place of business in Illinois, at 2605 West Lincoln Highway in Olympia Fields. (OFIMA's Resp. at 2.) Eyecare is an ophthalmology medical practice with its principal place of business in Illinois, located at 2555 West Lincoln Highway in Olympia Fields. (Oncology's Statement of Facts at 2.)

Oncology claims that OFIMA and Eyecare failed to pay for pharmaceuticals ordered by and delivered to OFIMA. Oncology presents twenty-three invoices for merchandise that it has shipped, but for which it has not received payment in full, as well as seven invoices for finance charges related to the unpaid merchandise.*fn1 (Mot. Summ. J. Ex. 2.) Each of these invoices states that the customer is "Olympia Fields Internal Med.," and lists the customer's as "2605 W. Lincoln Hwy. #130" in Olympia Fields, Illinois. (Id.)

OFIMA acknowledges that it ordered merchandise from Oncology, that it accepted merchandise from Oncology, and that it received invoices from Oncology for the merchandise. (OFIMA Answer at 5, 6.) Further, OFIMA has paid $15,842.54 towards the merchandise balance. Also, OFIMA has introduced rebate vouchers for $6,829.64, which OFIMA states were issued by Oncology toward the outstanding merchandise balance. The evidence also indicates that Oncology and OFIMA attempted to resolve this dispute by agreeing to a payment plan, which, apparently, was unsuccessful.

Nevertheless, the evidence clearly demonstrates that OFIMA has never entered into a written contract with Oncology. (Reply to Statement of Add'l Uncontested Facts at 2; Jennetten Aff. at ¶ 4.) Oncology admits as much, but bases its contract claim upon the contract it has with Eyecare. Eyecare entered into a written credit contract with Oncology in March 1995. (Am. Compl. Ex. 1.) This contract stipulated that Eyecare would incur a finance charge on invoices that were more than seventy-five days past due at a rate of twelve percent per annum, and that in the event of default by Eyecare, Oncology would be entitled to reasonable attorney's fees and collection costs. (Id.) This agreement listed Eyecare's address as "2555 W. Lincoln Hwy.," and was signed by Eyecare's president, Sharon Burke. (Id.)

Eyecare concedes that it entered into a contract with Oncology, but denies ordering any goods from Oncology and denies that it and OFIMA are related business entities. OFIMA and Eyecare have each introduced affidavits that state that they have no common ownership, no common business, no common employees, and no common shareholders, directors, or officers (Jennetten Aff. at ¶ 3; Burke Aff. at ¶ 4.) Further, Sharon Burke, M.D., president of Eyecare, and signatory to the contract, is not an owner, employee, or agent of OFIMA. (Id. at ¶ 6.) Oncology has not introduced any evidence contradicting these affidavits.

DISCUSSION

A. Eyecare's Motion to Dismiss Pursuant to Rule 12(b)(5).

A Motion to Dismiss pursuant to Rule 12(b)(5) tests the sufficiency of service of process. Fed.R.Civ.P. 12(b)(5) (failure to effectuate service is basis for dismissal.) "When the sufficiency of service is challenged, plaintiff bears the burden of making a prima facie showing that service was properly effected and that personal jurisdiction exists." Trotter v. Oppenheimer & Co. Inc., No. 96 C 1238, 1997 WL 102531, at *2 (N.D.Ill. Mar. 4, 1997).

Federal Rule of Civil Procedure 4 sets forth the requirements for properly serving a defendant. Fed.R.Civ.P. 4. Rule 4(m) requires a plaintiff to serve the summons and complaint upon the defendants within 120 days after the filing of the compliant. Fed.R.Civ.P. 4(m). Under Rule 4(h)(1), service must be effected "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." Fed. F. Civ. P. 4(h)(1); see also Trotter, at *2, n. 4 (service upon a party's attorney is insufficient unless the party appointed the attorney for that specific purpose.) Plaintiff did not comply with Rule 4 with respect to Defendant Eyecare. Even though this lawsuit was filed on March 23, 2001, Oncology has never served a summons or its Complaint upon Eyecare or its designated representatives.

The Court can extend the time for service if the plaintiff shows good cause for failing to effect timely service. Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). In order for good cause to be shown, the plaintiff must demonstrate that it conducted "reasonable diligence" in attempting service. Bachenski v. Malnati, 11 F.3d 1371, 1376-77 (7th Cir. 1993).

In this case, Oncology does not advance a good cause argument*fn2. Instead, Oncology claims that Eyecare's general appearance in this matter, and subsequent failure to object, waive its objection to improper service. Hernandez v. Officer Lara, 2001 WL 629309, at *1 (N.D.Ill. May 25, 2001) ("a defendant waives the defense of improper service if he makes an appearance in the case without reserving an objection.") Oncology notes that the attorneys representing OFIMA also filed an ...


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