United States District Court, N.D. Illinois
February 18, 2004.
SOYINI WALTON, Plaintiff,
THE BUREAUS, INC.; THE BUREAUS INVESTMENT GROUP #5, LLC; MICHAEL B. SLOTKY; JIM JANOUSEK; UNKNOWN PARTIES; ALL PRINCIPALS, OFFICERS, AGENTS, AND ASSIGNEES, TRUSTEES, UNDERWRITERS, AND UNKNOWN HOLDERS OF INTEREST; ADVANTA CORP.; and DENNIS ALTER, Defendants
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on Defendants The Bureaus Investment
Group #5 LLC's ("The Bureaus") and Advanta Bank Corporation's ("Advanta")
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5).
For the reasons set forth below, the motion is granted.
Because this is a motion to dismiss, we accept all well pleaded facts
and allegations in the complaint as true and construe all inferences in
favor of the Plaintiff. Thompson v. Illinois Dep't of Prof'l Regulation,
300 F.3d 750, 753 (7th Cir. 2002). Furthermore, because the Plaintiff is
a pro se litigant, this court will employ a more liberal standard of
review than would otherwise be used. Haines v. Kerner, 404 U.S. 519,
On May 23, 2003, Plaintiff Soyini Walton ("Walton") filed a complaint
against The Bureaus, Advanta, and other defendants. The dispute concerns
a $12,000 debt at one time owed by Walton to Advanta. Walton claims that
the debt has been paid off, an assertion that Advanta disputes. In any
event, The Bureaus purchased the debt from Advanta, which it is now
attempting to collect from Walton. Walton's complaint alleges violations
of the Fair Debt Collection Practices Act, defamation of character, and
On August 27, 2003, Walton failed to appear at a status hearing and we
dismissed her complaint for want of prosecution. On September 26, 2003,
Walton filed a motion to reinstate her case, which we granted on October
21, 2003. In September 2003 Walton delivered a copy of her motion to
reinstate to Eric Ferleger, an attorney representing The Bureaus in its
state court collection action against Walton.
At a November 12, 2003, status hearing, we informed Walton that The
Bureaus had yet to be properly served and granted The Bureaus' oral
motion to quash service of summons and the complaint. We then ordered
Walton to properly serve all defendants by December 12, 2003. By her own
account, Walton did not serve either The Bureaus or Advanta until
December 31, 2003, The Bureaus and Advanta each counter that they have
yet to be properly served. They now move to dismiss Walton's compliant
for improper service of process pursuant to Federal Rule of Civil
Under Federal Rule of Civil Procedure 12(b)(5), a complaint may be
dismissed due to "insufficiency of service of process." When a defendant
files a 12(b)(5) motion, the plaintiff assumes the burden of making a
prima facie showing that service was proper. Miles v. WTMX Radio Network,
2002 WL 31369424 (N.D. Ill. 2002). Federal Rule of Civil Procedure 4(h)
prescribes the appropriate methods for service of process upon
corporations and associations and thus governs how process should be
served on The Bureaus, a limited liability corporation ("LLC"), and
Advanta, a corporation. Rule 4(h)(1) allows for serving process on a
corporation or LLC by "delivering a copy of the summons and of the
complaint to an officer, a managing or general agent, or any other agent
authorized by law to receive service of process. . . ."
The rule also permits service of process "pursuant to the law of the
state in which fee district court is located. . . ." Id. (referencing
F.R.C.P. 4(e)(1)). Under the applicable Illinois statute:
A private corporation may be served (1) by leaving a
copy of the process with its registered agent or any
officer or agent of the corporation found anywhere in
the State; or (2) in any other manner now or hereafter
permitted by law. A private corporation may also be
notified by publication and mail in like manner and
with like effect as individuals.
735 ILCS 5/2-204.
If proper service is not made upon a defendant within 120 days of the
filing of the complaint, a court shall dismiss the complaint, without
prejudice, or "shall extend the time for service for an appropriate
period" if the plaintiff shows good cause for failing to effect proper
service. F.R.C.P. 4(m); Panaras v. Liquid Carbonic Indus. Corp.,
94 F.3d 338, 339 (7th Cir. 1996). Even if a plaintiff does not
demonstrate good cause, a court, in its discretion, may allow the
plaintiff a reasonable extension of time to effectuate service. Henderson
v. U.S., 517 U.S. 654, 662 (1996). However, a court is not permitted to
excuse service altogether, even if the defendant has actual notice of the
lawsuit. McMasters v. U.S., 260 F.3d 814, 817 (7th Cir. 2001). Pro se
litigants, such as Walton, are not excused from complying with Federal
Rule of Civil Procedure 4's requirements. Id. at 818. With these
considerations in mind, we now turn to the present motion.
By November 12, 2003, far more than 120 days had passed since Walton
originally filed her complaint and we determined that The Bureaus had not
been properly served. At that time we ordered Walton to effectuate
service on all defendants by December 12, 2003. By allowing Walton a
thirty day extension, we certainly provided her a reasonable and adequate
amount of time to properly serve defendants pursuant to Federal Rule of
Civil Procedure 4(m). However, Walton failed to comply with this
directive, as by her own admission the defendants were not served until
December 31, 2003 (according to the defendants, they have yet to be
properly served). Because Walton has not shown that she can follow the
Federal Rules of Civil Procedure, as well as the instructions of this
court, we will grant The Bureaus' and Advanta's motion to dismiss her
complaint for not serving process within the allotted time period,
See. Miles. 2002 WL 31369424 at *6-7.
Based on the foregoing analysis, The Bureaus' and Advanta's motion to
dismiss Walton's complaint is granted.
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