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United States District Court, N.D. Illinois, Eastern Division

June 18, 2004.

CATHERINE FAHY, individually and as special administrator for the Estate of DALE FAHY, deceased, Plaintiff,
JAMES PAGE, warden at Stateville Correctional Facility, BARBARA MILLER and JOSEPH SMITH, medical directors at Stateville Correctional Facility, STEVEN EISENBERG, director of psychology and or psychiatry at Stateville Correctional Facility, AMAR CHAWLA, doctor at Stateville Correctional Facility and JOHN DOE, correctional officer at Stateville Correctional Facility, Defendants.

The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge


Plaintiff Catherine Fahy has sued defendants under 42 U.S.C. ยง ("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 dismiss.


  For the reasons stated above, defendant's motion to dismiss is denied.

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