United States District Court, N.D. Illinois, Eastern Division
July 15, 2004.
HEDRICK G. HUMPHRIES, Plaintiff,
CRACKER BARREL RESTAURANT # 221, Defendant.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the Court on Defendant CBOCS West's
("Cracker Barrel") motion to dismiss pursuant to Federal Rules of
Civil Procedure 4(m), 12(b)(4), and 12(b)(5). For the reasons set
forth below, the motion is denied.
Plaintiff Hedrick Humphries ("Humphries") brings this case
pursuant to Title VII and 42 U.S.C. § 1981, alleging
discrimination on account of race and color by his former
employer, Cracker Barrel. It is unnecessary to delve into the
substantive facts of the case in order to decide the motion
before the Court. Given the nature of the motion, however, the
procedural history of the claim is critical. Humphries filed his complaint pro se on June 2, 2003. At that
time, he also sought to proceed in forma pauperis ("IFP")
pursuant to 28 U.S.C. § 1915(d) and asked the Court to appoint an
attorney for him under 28 U.S.C. § 1915(e)(1). On June 25, 2003,
we denied IFP status due to his $36,000 annual income and his
failure to specify what amount of that figure was devoted to
supporting his dependents. We also declined to appoint counsel,
in part because Humphries failed to demonstrate reasonable
attempts to obtain legal assistance.
On October 14, 2003, Humphries renewed his IFP petition,
supplying an amended application containing information about his
monthly obligations. We noted a contradiction between his stated
$1100 monthly mortgage payment and a $350 monthly car payment and
his claim elsewhere in the petition that he owned no real estate
or automobiles. These inconsistencies convinced us that Humphries
was not indigent, mandating a denial of IFP status. Additionally,
we warned Humphries that lack of candor in making representations
to a court can lead to dismissal of an entire complaint with
Around the time of the second denial, Humphries attempted to
personally serve Cracker Barrel by mailing a copy of the
complaint to the restaurant at which he worked, addressed to the
Legal Department. On November 26, Cracker Barrel moved to dismiss the complaint and notified Humphries of the motion. In
support of its motion, Cracker Barrel identified the deficiencies
in the prior attempt at service.
On December 2, Humphries filed another amended IFP application
and request for counsel, this time seeking to explain the
contradictions in the second IFP application and to demonstrate
his reasonable attempts at retaining counsel. On December 8, we
denied the renewed requests and informed Humphries to pay the
filing fee or drop his claim. On December 11, Cracker Barrel
again moved to dismiss the complaint. Since Humphries failed to
appear and had not yet paid the $150 filing fee, we took no
action. Humphries paid the filing fee on January 14, 2004, but
has yet to properly serve Cracker Barrel. Cracker Barrel
resubmitted its motion to dismiss on May 24, 2003, urging us to
dismiss the complaint for insufficiency of process, inadequate
service of process, and unreasonable delay in effecting service,
in accordance with Federal Rules of Civil Procedure 12(b)(4),
12(b)(5), and 4(m).
The Federal Rules of Civil Procedure provide that service on a
corporate defendant may be effected by delivering a copy of
summons to an officer or agent of the corporation. Fed.R. Civ.
Proc. 4(h)(1). Illinois law allows corporations to be served by
leaving a copy of the process with a registered agent or an
officer or agent of the corporation anywhere within the state.
Id.; Fed.R.Civ.Proc. 4(e)(1); 735 ILCS 5/2-204. A defendant may be personally served by any individual
over 18 years of age who is not a party to the action.
Fed.R.Civ.P. 4(c). Rule 4(m) provides a plaintiff 120 days from the
filing of the complaint to properly serve the defendant. If the
plaintiff has filed an IFP application, the 120-day period does
not begin to run until either the petition is granted or when the
plaintiff pays the requisite filing fee if the petition is
denied. See Williams-Guice v. Board of Educ., 45 F.3d 161,
165 (7th Cir. 1995); Robinson v. America's Best Contacts and
Eyeglasses, 876 F.2d 596, 598 (7th Cir. 1989). However, the time
limitation imposed by Rule 4(m) is not absolute. See Floyd v.
United States, 900 F.2d 1045, 1049 (7th Cir. 1990) (deeming
120-day allotment a "useful tool for docket management, not an
instrument of oppression"). The rule requires a court to extend
the time period for service if the plaintiff can establish good
cause for non-compliance. Fed.R.Civ.P. 4(m); Panaras v.
Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996).
Additionally, a court in its discretion may decline to dismiss
the action and extend the time period for service notwithstanding
plaintiff's inability to establish good cause, if the court
determines it is in the interest of justice to do so. Panaras,
94 F.3d at 340.
Humphries does not dispute that the 120 days for service have
come and gone. However, proper assessment of the instant motion
requires us to determine precisely when it elapsed. Cracker Barrel gives several options and
emphasizes that the initial presentation of the complaint
occurred over a year ago in June 2003. Because this case involves
IFP proceedings, we cannot agree that June is the correct
starting point. Rather, as Williams-Guice and Robinson make
clear, the filing of an IFP petition stalls the service clock
until IFP status is conferred or until a denial is followed by
payment of the filing fee.
The instant case falls into the latter category. In such a
situation, Local Rule 3.3(e) specifies that the clerk of the
court shall notify the petitioner of the amount of the fee that
is due. The petitioner then has 15 days to pay the fee or face
sanctions, including dismissal of the action. The docket does not
reflect that Humphries was ever given this notice, and as he paid
the fee about one month after we denied his petition the final
time, we do not find sanctions appropriate in this case. Under
the applicable case law, then, the 120-day period began on
January 12, the date that Humphries paid his filing fee.*fn1
Even using that much-later date, Humphries is still beyond the
120 days permitted by the rule, as he has yet to formally serve
on Cracker Barrel. Therefore, dismissal of this action is
appropriate under Rules 12(b)(4), 12(b)(5), and 4(m) unless Humphries can establish good cause for his non-compliance or
point to factors supporting an extension of the period for
service, which is in our discretion to grant.*fn2
1. Good Cause
A plaintiff must be excused from the 120-day time requirement
if he can demonstrate that he has good cause for the
non-compliance. Fed.R.Civ.P. 4(m); Panaras, 94 F.3d at 340.
No exact definition for good cause exists, but a plaintiff must
at least show reasonable diligence in effecting proper service.
Bachenski v. Malnati, 11 F.3d 1371, 1377 (7th Cir. 1993).
Additionally, while a litigant's pro se status cannot be the
sole factor in assessing whether good cause exists for
non-compliance with Rule 4(m), it is a relevant consideration.
See Garrett v. Miller, 2003 U.S. Dist. LEXIS 5248, *8 (N.D.
Ill. Apr. 1, 2003). Difficulties in obtaining and retaining
counsel can also contribute to a finding of good cause. Agostin
v. American Airlines, Inc., 2003 U.S. Dist. LEXIS 10947, *15-16
(N.D. Ill. Jan. 2, 2003).
As evidence of reasonable diligence, Humphries points to his
attempt at service by mailing the complaint. While an attempt at
service via certified mail may represent reasonable efforts by a pro se plaintiff to serve his opponent,
it is not enough to establish good cause. See Drwiega v.
Infrared Testing, Inc., 2003 U.S. Dist. LEXIS 15017, *4 (N.D.
Ill. Aug. 27, 2003). Moreover, in light of his failure to cure
the defective service after Cracker Barrel specified its
shortcomings, Humphries cannot successfully argue reasonable
diligence. See Robbins v. Brady, 1993 U.S. Dist. LEXIS 7601,
*9 (C.D. Ill. May 26, 1993). Humphries also offers his difficulty
in obtaining legal counsel as reason for a finding of good cause,
but he fails to provide any pertinent facts or dates that could
support his contentions. Accordingly, we find that Humphries has
not established good cause for failure to comply with Rule 4(m).
2. Discretionary Extensions of Time
A plaintiff's inability to establish good cause for
non-compliance with Rule 4(m) does not end our inquiry. We must
also assess whether it is in the interest of fairness and justice
to grant a discretionary extension of time to complete proper
service. Panaras, 94 F.3d at 341. Relevant factors in
determining whether it is appropriate to grant additional time to
effect service include whether the defendant has evaded service
or concealed a defect in attempted service, eventual service,
prejudice to the defendant, actual notice of the lawsuit, whether
the statute of limitations on the action has expired, previous
reasonable attempts at service, and a plaintiff's pro se
status. Troxell v. Fedders, 160 F.3d 381, 383 (7th Cir. 1998); Panaras, 94 F.3d
at 341; Drwiega, 2003 U.S. Dist. LEXIS 15017, at *9.
Here, Cracker Barrel has not evaded service or concealed
defects in service it planned to protest. Nor has Humphries
properly served them. Though Cracker Barrel is somewhat
prejudiced by the passage of time in this case, it is not
overwhelming, and it could have easily addressed that concern by
waiving service. The balance of factors weigh in favor of a brief
extension of time for Humphries. First, during the time at issue,
Humphries was proceeding without the benefit of counsel. While
this does not exempt him from compliance with the rules of
procedure, it requires us to be more lenient in our response to
his slip-ups. See Garrett, 2003 U.S. Dist. LEXIS 5248, at *8.
Second, it is clear that if we grant the motion to dismiss, the
statute of limitations will bar Humphries from refiling his Title
VII claims against Cracker Barrel. See Williams-Guice, 45
F.3d at 165. The Seventh Circuit has stressed that an expired
statute of limitations weighs heavily in support of an extension
of time, especially when the statutory period is extremely short.
See Panaras, 94 F.3d at 341. Third, Humphries did attempt to
serve Cracker Barrel. Fourth, Cracker Barrel does not dispute
that it received actual notice of the lawsuit, and its actions in
seeking dismissal indicate its awareness. Fifth, at the time
Cracker Barrel filed the instant motion, the 120-day period had
elapsed less than two weeks before. Finally, Humphries is now
represented by trained counsel, and we trust that proper service will follow
in short order in this case.
In sum, although Humphries has not sufficiently established
good cause for failing to serve Cracker Barrel, the circumstances
of this case weigh in favor or a discretionary extension of time.
Accordingly, we will extend the time for service until Friday,
July 30. Failure to effectuate proper service by that date will
result in dismissal.
Based on the foregoing, Cracker Barrel's motion to dismiss is
denied. Humphries must properly effect service by July 30, 2004.
Failure to do so will result in dismissal of the complaint and