The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Catherine Fahy has sued defendants under 42 U.S.C. §
("section") 1983, alleging that defendants deprived Dale Fahy of
his constitutional rights while he was in their custody.
Defendant Smith has filed a motion to dismiss under Federal Rule
of Civil Procedure ("Rule") 12(b)(5). For the reasons set forth
below, the motion is denied. Discussion
The facts of this case are set forth in our Memorandum Opinion
and Order dated May 6, 2004 (denying motions to dismiss of
defendants Eisenberg and Page). We also provided a brief history
of the proceedings before this Court, which we repeat here to the
extent they pertain to Smith's motion to dismiss.
Plaintiff filed her complaint on September 28, 2001. The case
was up for a status hearing on May 21, 2003, and plaintiff failed
to appear. We rescheduled the status hearing for June 4, 2003,
and warned that if plaintiff failed to appear then, the case
would be dismissed for want of prosecution. Plaintiff failed to
appear on June 4 and we dismissed the case. On June 16, 2003,
plaintiff moved to vacate the dismissal order. We granted
plaintiff's motion and the case was reinstated on July 29, 2003.
Plaintiff's attorneys withdrew from the case in October 2003.
At a status hearing on November 12, 2003, attended by plaintiff's
new counsel, we set a discovery schedule and gave plaintiff
additional time to serve any unserved defendants, including
Smith. Smith was served on December 22, 2003.
Smith has filed a motion to dismiss for insufficiency of
process. He argues for dismissal on the grounds that plaintiff
did not satisfy the requirements of Rule 4(m) (neither the "good
cause" requirement nor the "excusable neglect" requirement") to
warrant an extension of time to effect service. He also asserts
that the delay in serving him has caused him prejudice.
Rule 4(m)'s 120-day time period for service is not an absolute.
Under certain circumstances, a court may allow service to be made
beyond that time frame. See Fed.R.Civ.P.4(m) (stating that if
service is not made within 120 days after the filing of the
complaint, the court may direct that service be effected within a specified time). If good cause for
an extension of time to effect service is shown, then Rule 4(m)
requires a court to grant the extension. See Fed.R.Civ.P.
4(m) (use of word "shall" means court must extend time). Even if
good cause is not shown, a court has discretion to grant an
extension of time beyond the 120-day period provided for in
Rule 4(m). See Fed.R.Civ.P. 4, Advisory Committee Notes, 1993
Amendments, Subdivision (m) (new subdivision (m) "explicitly
provides that the court shall allow additional time if there is
good cause" and "authorizes the court to relieve a plaintiff of
the consequences of an application of this subdivision even if
there is not good cause shown"). See also Davis v. National R.R.
Passenger Corp., 1997 WL 527287, at *2 n. 2 (N.D.Ill. Aug. 19
1997) (citing Panaras v. Liquid Carbonic Indus. Corp.,
94 F.3d 338, 341 (7th Cir. 1996) for proposition that under Rule 4(m),
courts have discretion to enlarge the 120-day period even if no
good cause is shown).
Smith has not provided us with any means, such as transcripts
of proceedings before us and Magistrate Judge Nolan, by which we
could engage in a close re-examination of the circumstances that
led to our November 2003 decision to grant plaintiff an extension
of time to serve Smith.*fn1 At the time this matter was
before us that November, plaintiff's original counsel had
withdrawn from the case and plaintiff's new (and present) counsel
suggested that an attempt to locate Smith to effect service had
been made by former counsel.*fn2 Discovery had not yet
begun. Moreover, the statute of limitations may have affected
plaintiff's ability to refile against unserved defendants. We
were satisfied at that time that a limited extension of time in
which to serve Smith (and other unserved defendants) was reasonable and we granted it.*fn3 See Fed.
R. Civ. P. 4, Advisory Committee Notes, 1993 Amendments,
Subdivision (m) ("[r]elief may be justified . . . if the
applicable statute of limitations would bar the refiled action,
or if the defendant is evading service. . . ."). Plaintiff served
Smith within that time period.*fn4
Smith also argues that he has been prejudiced in his defense
because of the delay in service. He says that his opportunity to
investigate and question potential witnesses has been lost, in
part because witnesses' memories have faded, and that his own
ability to recall the events surrounding Fahy's death has
diminished. (Mot. to Dismiss at 7.) Plaintiff responds that any
delay does not prejudice Smith, especially because he is a
medical doctor. She says that it is customary for medical
institutions to maintain medical records for at least seven
years. She also says that under Illinois' discovery rule,
malpractice actions against physicians can be brought up to four
years after the negligent act. These facts, she says, alert
physicians to the fact that suits can be brought many years after
a particular event. (Response at 6.)
Without commenting on plaintiff's specific arguments, we do not
find that Smith has established any prejudice from the delay in
service of process. Cf. Coleman v. Milwaukee Bd. of School
Dirs., 290 F.3d 932, 934 (7th Cir. 2002) (late service allowed
in part because defendant does not show any actual harm to its
ability to defend suit as a consequence of the delay in service).
He does not argue that any records have been lost or that specific
witnesses are unavailable.*fn5 He says only in general terms
that memories have faded, but this alone does not establish that
Smith's ability to defend himself has been compromised because of
the late service. Id.*fn6 Given the circumstances under
which we granted plaintiff an extension of time in which to serve
Smith and Smith's failure at this time to provide evidence of any
actual harm due to the delayed service, we deny Smith's motion to
For the reasons stated above, defendant's motion to ...