United States District Court, N.D. Illinois
April 23, 2004.
JOANNE VOOGD, Plaintiff,
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
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
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,
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.
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
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 attorneys."). Thus, Voogd cannot avoid the consequences of her
delay in serving Pavilion by claiming ignorance of Illinois rules
governing service of process.
Voogd's argument that her delay in service did not prejudice Pavilion
also fails. The burden rests with the plaintiff to demonstrate reasonable
diligence in effectuating service, and the defendant is not required to
establish that it was prejudiced by plaintiff's delay. Billerbeck v.
Caterpillar Tractor Co., 685 N.E.2d 1018, 1020 (Ill.App.4th Dist. 1997).
While lack of prejudice may be a relevant consideration in the
determination of whether a plaintiff exercised reasonable diligence, it
is but one factor in the analysis. Kreykes, 697 N.E.2d at 1021. Here, the
lack of prejudice to Pavilion is scarcely sufficient to overcome Voogd's
failure to make any efforts to serve Pavilion for well over a year.
Finally, Voogd argues that her disorder "affected her ability to follow
through on the tasks necessary to assure that Defendant was properly
served." (Pl. Resp. to Def. Mot. To Dismiss, at 7-8.) However, Voogd's
own affidavit demonstrates that her disorder had nothing to do with her failure to serve Pavilion. Voogd states, "I did not realize
that I had to take further steps to have the Sheriff serve the Defendant
New Choice Program / Pavilion Foundation. I had no knowledge that I would
have to find the Defendants' registered agent or have the Defendant
served by the Sheriff in Champaign, Illinois." (Voogd Aff, ¶ 4.) If
Voogd did not know that she was required to serve Pavilion, then her
disorder is irrelevant. It could not have played a role in preventing her
from accomplishing a task she was not aware she was required to perform.
Voogd is correct that the determination of whether a plaintiff has
exercised reasonable diligence is a fact-intensive inquiry suited to
balancing, not one in which there is a bright line. (Pl. Resp. to Def.
Mot. To Dismiss, at 7.) Here, however, one side of the scale is empty.
Voogd failed to take any efforts to serve Pavilion for over a year. Her
only excuse is that she was not aware of the applicable rules, an
irrelevant consideration under Illinois law. Thus, the court holds that
she failed to exercise reasonable diligence.
Because Voogd failed to exercise reasonable diligence, Rule 103(b)
provides that the action "may be dismissed without prejudice, with the
right to refile if the statute of limitation has not run." The ADA
incorporates Title VII's statute of limitations. 42 U.S.C. § 12117;
Kennedy v. Chemical Waste Mgmt., Inc., 79 F.3d 49, 50 (7th Cir. 1996).
Thus, an ADA plaintiff has ninety days from the receipt of the right to
sue letter from the EEOC to file suit. 42 U.S.C. § 2000e-5(f)(1). Voogd
received her right to sue letter on March 21, 2002. The statute of
limitations period expired on June 19, 2002. However, the 90-day limit on filing suit after receipt of the right to
sue letter is subject to equitable tolling in appropriate
circumstances.*fn2 For equitable tolling to apply, a plaintiff must show
(1) excusable ignorance of or non-compliance with the limitations
period, with no prejudice to defendant, or (2) affirmative misconduct of
defendant that lulled the plaintiff into inaction. Payne v. Cook County
Hospital, 719 F. Supp. 730, 732 (N.D. Ill., 1989). Voogd argues that the
first consideration entitles her to equitable tolling of the statute of
limitations. However, Voogd was not ignorant of the limitations period;
she filed her complaint in state court within ninety days of receiving
her right to sue letter from the EEOC. Rather, she was ignorant of the
requirement that she serve her complaint on Pavilion. As explained
above, ignorance of this requirement is not "excusable" under Illinois
law. Steinbrecher, 759 N.E.2d at 518; see also Harvey, 453 N.E.2d at
823. Thus, Voogd is not entitled to equitable tolling of the ADA's
statute of limitations.
For the reasons stated above, Pavilion's motion to dismiss is granted
[#11]. Case is dismissed with prejudice.