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VOOGD v. PAVILION FOUNDATION

April 23, 2004.

JOANNE VOOGD, Plaintiff,
v.
PAVILION FOUNDATION, Defendant



The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Joanne Voogd ("Voogd"), initially filed this action against defendant, Pavilion Foundation ("Pavilion"), in the Circuit Court of Cook County, Illinois, alleging that Pavilion wrongfully discharged her in retaliation for having requested accommodations for an alleged disability in violation of the Americans With Disabilities Act, 42 U.S.C. § 12101 et. seq. ("ADA"). Pavilion subsequently removed the case to this court. Before the court is Pavilion's Motion to Dismiss the action pursuant to Illinois Supreme Court Rule 103(b) because of Voogd's failure to diligently serve Pavilion. For the reasons stated below, the court grants the motion.

PROCEDURAL HISTORY

  Voogd was dismissed from her employment with Pavilion on December 19, 2000. On June 18, 2001, she filed a charge of discrimination with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission ("EEOC"), alleging that she was discharged because of her disability — she alleged that she had Attention Deficit / Hyperactivity Disorder — and in retaliation for having requested accommodations for that disability. The EEOC issued a right to sue letter on March 21, 2002. Following advice she received in a phone call to the EEOC, Voogd filed a complaint for disability discrimination and retaliatory discharge in the Circuit Court of Cook County on June 5, 2002 (the "state action"). Voogd never served nor attempted to serve summons or the complaint on Pavilion.

  After speaking with an attorney, Voogd filed a complaint in federal district court on January 2, 2003 (Case No. 03 C 25) (the "federal action"). That complaint paralleled the allegations set forth in the state action. Voogd moved to proceed in forma pauperis and the motion was granted on February 12, 2003. As a result, the U.S. Marshal was directed to serve Pavilion with summons and complaint and did so on February 24, 2003.

  Pavilion filed a motion to dismiss the federal action because the pleadings demonstrated that Voogd did not file suit within ninety days of receiving the EEOC's right to sue letter. After Pavilion filed the motion to dismiss, Voogd, who was proceeding pro se, telephoned Pavilion's counsel and informed counsel of the previously filed and still pending state action. This was Pavilion's first notice of the state action. On April 10, 2003, Pavilion removed the state action to federal district court (Case No. 03 C 2465). On April 24, the court found the federal action and the state action related.

  On May 14, 2003, this court denied Pavilion's motion to dismiss the federal action, holding that Pavilion waived any right to object to personal jurisdiction with respect to the state action by failing to file a responsive pleading within 20 days of removal, as required under Rule 81(c) of the Federal Rules of Civil Procedure. On July 21, 2003, the court granted Pavilion's motion to reconsider and vacated the May 14, 2003, order. The court agreed with Pavilion that "because defendant was never served with the complaint and summons [in the state action], defendant's removal of the case did not waive its right to assert lack of personal jurisdiction." The court nevertheless declined to dismiss the state action for lack of timely service, holding that 28 U.S.C. § 1448 provided Voogd with 120 days from the date of removal to ensure proper service on Pavilion. Because the state action survived the motion to dismiss, the court dismissed the federal action as superfluous.

  On August 7, 2003, Pavilion's counsel agreed to accept service. On September 3, 2003, Pavilion filed the instant motion to dismiss.

  DISCUSSION

  Pavilion contends that Voogd's complaint should be dismissed pursuant to Illinois Rule 103(b) because Voogd failed to exercise reasonable diligence to obtain service on Pavilion from June 5, 2002, when she originally filed the state action, until August 7, 2003, when Pavilion's counsel agreed to accept service. Pavilion also contends that the facts do not warrant equitable tolling of the statute of limitations either to defeat the motion to dismiss or to revive the previously dismissed federal action.

  The Seventh Circuit has held that a suit initially filed in state court and subsequently removed to federal court may be dismissed pursuant to state procedural rules regarding delays in service of process. Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122-23 (7th Cir. 2001); see also Allen v. Ferguson, 791 F.2d 611, 616 n.8 (7th Cir. 1986)("[I]n determining the validity of service prior to removal, a federal court must apply the law of the state under which the service was made . . ."). Thus, the court applies Illinois law to determine whether Voogd's case must be dismissed because of her delay in obtaining service on Pavilion. Illinois Supreme Court Rule 103(b) provides, "If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant, the action as to that defendant may be dismissed without prejudice, with the right to refile if the statute of limitation has not run." The rule does not state a specific time limitation within which the defendant must be served. However, the rule "has an essential purpose in promoting the expeditious handling of suits by giving trial courts wide discretion to dismiss when service is not effected with reasonable diligence." Kreykes Elec., Inc. v. Malk and Harris, 697 N.E.2d 885, 888 (Ill.App. 1st Dist. 1998). Rule 103(b) is not rooted in a subjective test of the plaintiff's intent but rather upon an objective evaluation of reasonable diligence in obtaining service of process. Marks v. Reuben H. Donnelly, 636 N.E.2d 825, 829 (Ill.App. 1st Dist. 1994).

  In Segal v. Sacco, the Illinois Supreme Court delineated a seven-factor test for determining whether a plaintiff exercised reasonable diligence in serving a defendant. The factors are (1) the length of time used to obtain service of process; (2) the activities of the plaintiff; (3) the plaintiffs knowledge of the defendant's location; (4) the ease with which the defendant's whereabouts could have been ascertained; (5) actual knowledge on the part of the defendant of the pendency of the action; (6) special circumstances which would affect the plaintiffs efforts; and (7) actual service on the defendant. 555 N.E.2d 719, 720 (1990).

  Voogd filed her suit in state court on June 5, 2002, Pavilion accepted service through its counsel on August 7, 2003. Voogd does not dispute that she made no effort to serve Pavilion during the intervening fourteen months.*fn1 She contends, however, that her delay was inadvertent, resulted in no prejudice to defendants and that under her unique circumstances she exercised reasonable diligence.

  First, Voogd argues that, because of her pro se status, "she did not understand what was required of her to effect service." (Pl. Resp, to Def. Mot. To Dismiss, at 4; see also Voogd Affidavit ¶ 4.) However, under Illinois law, "pro se litigants are presumed to have full knowledge of applicable court rules and procedures." Steinbrecher v. Steinbrecher, 759 N.E.2d 509, 518 (Ill. 2001); see also Harvey v. Carponelli, 453 N.E.2d 820, 823 (Ill.App. 1st Dist. 1983)("This court will not apply a more lenient procedural standard to pro se litigants than is generally allowed ...


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