United States District Court, N.D. Illinois, Eastern Division
July 8, 2004.
LUCY GIALLANZA, Plaintiff,
INTERCONTINENTAL HOTELS GROUP, INC. and HOLIDAY INN SELECT, Defendants.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Lucy Giallanza, filed suit against Defendants,
Intercontinental Hotels Group, Inc. and Holiday Inn Select,
alleging age discrimination. Presently before the Court is
Defendants' Motion to Dismiss for lack of proper service.
On November, 6, 2003, Giallanza filed a Complaint with this
Court, giving her until March 5, 2004 (120 days), to properly
serve the Defendants pursuant to Fed.R.Civ.P. 4. On December
1, 2003, Giallanza served Defendants' registered agents with a
one-page "Alias Summons in a Civil Case" but not with a copy of
the Complaint. On December 18, 2003, Defendants' counsel informed
Giallanza, in a letter, about the lack of proper service and that
Defendants were willing to waive service if properly served with
a Waiver of Service of Summons ("Waiver") form. Giallanza alleges
that the letter led her to believe that Defendants had received
her Complaint and that the defects in the service process laid
Giallanza missed the first status conference on January 21,
2004, but attended the subsequent February 25, 2004 status
conference, while Defendants were present for both. At the February 25, 2004 status conference, Giallanza was again informed
of the improper service; so Giallanza delivered a Waiver form on
March 2, 2004, to Defendants' counsel, though not Defendants'
registered agent, and without a proper date or the Complaint.
Even though the 120-day deadline passed on March 5, 2004,
Defendants contacted Giallanza on March 10, 2004, regarding the
improper service. Giallanza responded on March 24, 2004, via
electronic mail, with a Waiver form, which again was improper
pursuant to Fed.R.Civ.P. 4, though this time with a proper
date, but still did not include the Complaint.
Service on a corporation is valid when it complies with
Fed.R.Civ.P. 4(h), which states that service shall be effected:
(1) in a judicial district of the United States in
the manner prescribed for individuals by subdivision
(e)(1), or by delivering a copy of the summons and of
the complaint to an officer, a managing or general
agent, or any agent authorized by appointment or by
law to receive service of process. . . .
Additionally, Rule 4(e)(1) allows service to be effected
"pursuant to the law of the state in which the district is
located. . . ." Fed.R.Civ.P. 4(e)(1). Pursuant to Illinois
law, service may be perfected on a private corporation "by
leaving a copy of the process with its registered agent or any
officer or agent found anywhere in the State. . . ." 735 ILCS
Both the Federal Rules of Civil Procedure and Illinois law
allow a plaintiff to have defendant waive service. Fed.R. Civ.
P. 4(d); 735 ILCS 5/2-213. Under both of these waiver provisions,
the plaintiff is required to inform the defendant of the
consequences of compliance and the failure to comply with the
request and include an extra copy of the notice and request as
well as prepaid means of compliance in writing. Fed.R.Civ.P.
4(d); 735 ILCS 5/2-213. In the instant case, Giallanza served only a one-page "Alias
Summons in a Civil Case," but not the Complaint, to Defendants'
registered agent. Giallanza further tried to serve the Waiver
form to Defendants' counsel rather than their registered agent
twice, once being by electronic mail. This service did not comply
with Rule 4(h) or 735 ILCS 5/2-204 because Giallanza failed to
demonstrate that a copy of the Complaint and summons were served
upon an officer, a managing or general agent, or any agent
authorized by appointment or by law to receive service of
process. In addition, a mailing, especially an electronic
mailing, does not constitute "delivery" as required by Rule 4.
See Miles v. WTMX Radio Network, 2002 WL 1359398 (N.D. Ill.
June 20, 2002); Dunmars v. City of Chicago, 22 F. Supp.2d 777,
781 (N.D. Ill. 1998) (Dunmars).
Furthermore, Giallanza did not perfect service in accordance
with either Fed.R.Civ.P. 4(d) or 735 ILCS 5/2-213 because she
failed to include a copy of the Complaint and initially sent the
wrong date to respond.
Under Rule 4(m), service of the complaint and summons is to be
made within 120 days after the filing of the complaint. In this
case, Giallanza filed her Complaint on November 6, 2003; the
120-day period expired as of March 5, 2004. If the 120-day time
period is not met, the court "shall dismiss the action without
prejudice . . . or direct that service be effected within a
specified time; provided that if the plaintiff shows good cause
for the failure, the court shall extend the time for service for
an appropriate period." Fed.R.Civ.P. 4(m). Furthermore, if the
plaintiff cannot show good cause for the defect in service, the
court still has the discretion to direct that service be effected
within a specified time. See Panaras v. Liquid Carbonic Indus.,
Inc., 94 F.3d 338, 340-41 (7th Cir. 1996) (Panaras). "Good cause" is not defined but, rather, left to the discretion
of the Court. See Fed.R.Civ.P. 4(m). Despite repeated
failures to properly serve Defendants, Giallanza claims "good
cause." Giallanza's conduct evidences, at best, excusable neglect
and, at worst, professional incompetence, neither of which rises
to the level of "good cause" for the purposes of Fed.R.Civ.P.
4(m). As such, Giallanza does not establish "good cause" under
While Giallanza has not established "good cause" to excuse her
improper service, the Court has the discretion to extend the
period of time to effect proper service. See Panaras, 94 F.3d
at 340-41. Clarifying when such discretion is warranted, the
Federal Rules note "[r]elief may be justified, for example, if
the applicable statute of limitations would bar the refiled
action." See Fed.R.Civ.P. 4(m), Advisory Committee Note,
1993 Amendments. In the present case, dismissing the suit, even
without prejudice, would result in the statute of limitations'
barring a refiled action. Granting an extension in this
particular circumstance is clearly contemplated by the rule.
Defendants contend that granting a time extension to obtain
proper service would prejudice them. Defendants also note that
they did not evade service or conceal any defect in service and
that they were in steady communication with Giallanza regarding
the question of improper service. Regarding service, the notion
of prejudice deals with the adequacy of notice to a party. "[T]he
core function of service is to supply notice of the pendency of a
legal action, in a manner and at a time that affords the
defendant a fair opportunity to answer the complaint and present
defenses and objections." See Henderson v. United States,
517 U.S. 654, 671 (1996).
Presently, even though service was improper, Defendants had
notice of the impending legal action. Defendants attended two
status conferences and were in steady contact with Giallanza,
even repeatedly offering to waive service provided they were
properly served with a Waiver form. As such, there is no evidence of "significant" prejudice to the
Defendants. Of course, neither should this ruling permitting the
extension of time for service be construed as waiving the right
to service; as the Seventh Circuit has noted, "the rule does not
abolish a defendant's right to proper service of process." See
Troxell v. Fedders of North America, Inc., 160 F.3d 381, 383
(7th Cir. 1998). Moreover, dismissal without prejudice, and the
resulting running of the statute of limitations, is contrary to
the fact that "we recognize that courts generally prefer to
resolve disputes on their merits instead of procedural
technicalities." See Fidelity & Deposit Co. v. Ramco Indus.,
1996 WL 392164 at *3 (N.D. Ill. July 11, 1996).
While no "good cause" has been demonstrated by Giallanza, the
Court finds that an extension of time to effect service is proper
in the present case. Case law allows the extension of time for
service even if there was no "good cause" for Giallanza's missing
the deadline. See Panaras, 94 F.3d at 341. Giallanza may serve
the summons and Complaint upon Defendants in any manner which
otherwise complies with Rule 4 of the Federal Rules of Civil
Procedure within thirty (30) days of the date of this Order.
Plaintiff's failure to effect proper service within that time
period will result in the dismissal of her Complaint.
For the foregoing reasons, Defendants' Motion to Dismiss is
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