The opinion of the court was delivered by: David Coar, District Judge.
MEMORANDUM OPINION AND ORDER
Before this Court are Defendant City of Chicago's Motion to Dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and Defendant E.A.R. Towing Company's Motion to Dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and Fed.R.Civ.P. 4(m).
Factual and Procedural Background
On July 9, 2001, Plaintiff Thomas Saniat ("Plaintiff" or "Saniat") participated in two hearings before an Administrative Law Officer regarding the towing of two of his vehicles. According to the findings, decision and order of the Administrative Law Officer, the vehicles were towed pursuant to sections 9-80-110 and 9-92-030(d) of the Chicago Municipal Code. Section 9-80-110 of the code provides rules governing the towing and associated fines for abandoned vehicles. Section 9-92-030(d) of the code provides further authority for the police or the streets and sanitation department to impound abandoned vehicles. In both cases, the Administrative Law Officer found that the city had not established its burden of proof that the towing of Saniat's vehicles was authorized under the code. The Officer ordered that the city must release the vehicles to Saniat at no cost.
On July 9, 2002, Saniat filed a handwritten pro se complaint against the City of Chicago, E[nvironmental] A[uto] R[esponse] Towing, E.R. Towing, E & R Towing, and John Does number one through four. The complaint alleges that the towing of his two vehicles was a violation of his due process rights under the U.S. Constitution and the Illinois Constitution because he did not receive sufficient notice. Both of the vehicles were registered with the State, had state vehicle identification numbers, and current Illinois license plates. (Pl. Comp. ¶ 6). According to the complaint, an employee of the City ordered an immediate tow of Saniat's vehicles. (Pl. Comp. ¶ 4). The tow truck driver then removed some items and parts from one of the vehicles and "deposited those personal goods and vehicle parts on the sidewalk and street to be lost to the Plaintiff." (Pl. Comp. ¶ 5).
According to the Plaintiff's Complaint, when the vehicles were impounded, E.A.R. Towing did not follow the proper identification procedures. (Pl. Comp. ¶ 7). This made it more difficult for Plaintiff to learn the whereabouts of his vehicles. When Plaintiff learned the whereabouts of his vehicles, he discovered that many of his personal belongings had been taken from the vehicles.
The Complaint alleges that the towing of his vehicles without notice violates his rights under the Due Process Clause of the Fourteenth Amendment. Defendant City has moved to dismiss the Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant E.A.R. Towing has moved to dismiss the Complaint for two reasons: failure to state a claim pursuant to Rule 12(b)(6) and for failure to properly serve the Complaint pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
I. Dismissal Pursuant to Rule 4(m)
Rule 4 of the Federal Rules of Civil Procedure sets forth the requirements for serving the Summons upon opposing parties. The Rule establishes that service must be accomplished "within 120 days after the filing of the complaint." Fed.R.Civ.Pro. 4(m). If the Complaint is not served within that time period, the Court "shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time. . . ."
Defendant E.A.R. Towing believes that this sets up a mandatory dismissal provision if the Complaint is not served within 120 days. This is not so. By the explicit language of the rule, the Court retains discretion to "direct that service be effected within a specified time." In this case, that is exactly what occurred. The pro se Plaintiff's application to proceed without prepayment of fees was granted on August 7, 2002. The Summons was properly issued on August 8, but for reasons unknown, the U.S. Marshals Service was unable to effectuate service on Defendant E.A.R. Towing. On January 6, 2003, which was after the 120 days for service, the Court ordered the Marshals Service to effectuate service within 30 days. On January 16, 2003, Defendant E.A.R. Towing accepted service via mail.
Although service of the Summons in this case did occur outside of the 120 days allowed in Rule 4(m), the Court recognized in January that the Plaintiff was not responsible for the failure to serve this Defendant. Defendant E.A.R. Towing's Motion to Dismiss pursuant to Rule 4(m) is denied.
II. Dismissal Pursuant to Rule 12(b)(6)
Rule 12(b) of the Federal Rules of Civil Procedure allows certain defenses to be pled by motion in advance of answering the complaint. Although there are seven defenses listed in Rule 12(b), the most common, by far, is the defense numbered six ...