United States District Court, N.D. Illinois, Eastern Division
October 19, 2005.
MANUEL CHICO, Plaintiff,
OFFICER DAN MILLER, Oak Law Police Department; OFFICER J. RILEY, Alsip Police Department; OFFICER E. CASEY, Alsip Police Department; and VILLAGE OF ALSIP, a Municipal Corporation, Defendants.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on two motions. The first,
filed by Plaintiff Manuel Chico, seeks to alter or amend our
August 31, 2005, dismissal of Count III of his complaint pursuant
to Fed.R.Civ.Proc. 59(e). The second, filed by Defendant Dan
Miller, requests that we dismiss Counts I, II, IV, V, VI and VII,
pursuant to Fed.R.Civ.Proc. 12(b)(5) and 12(b)(6). For the
reasons set forth below, Chico's motion is denied and Miller's
motion is granted. BACKGROUND
According to the allegations of the complaint, which we must
accept as true at this stage of the proceedings, Chico went into
a White Hen Pantry convenience store on May 27, 2003. When he
returned to his car, a man had parked his car behind Chico's,
blocking him from leaving the parking lot. The man showed a
badge, refused to move his car, and allegedly struck Chico in the
face with an unidentified object. Chico fell to the ground and
While Chico was unconscious, Defendants J. Riley and E. Casey,
officers of the Alsip Police Department, arrived. After he
awakened, they drove him home. At a hospital visit the following
day, Chico learned that he had a broken jaw. He was hospitalized
for approximately 10 days to treat his injury. Following his
release, Chico went to the Alsip Police Department to file a
report against the unidentified man. According to Chico, Officers
Riley and Casey deliberately withheld the identity of the alleged
assailant from him.
In early June 2003, Chico filed a claim with the Illinois
Attorney General's office for damages under the Crime Victim's
Compensation Act. On June 9, 2004, during an Illinois Court of
Claims hearing, Chico learned that the unidentified man at the
White Hen Pantry was Miller, who is a police officer in nearby
Oak Lawn, not Alsip. Approximately 10 months later, on April 6, 2005, Chico filed a
seven-count civil rights complaint in the Circuit Court of Cook
County against Miller, Riley, Casey, and the Village of Alsip.
The complaint alleges that the latter three defendants conspired
to conceal the identity of Miller, thereby depriving Chico of
access to the courts. Chico also asserts six counts against
Miller. Four allege claims of false imprisonment and battery
under state law; the remaining two seek redress for
constitutional violations under 42 U.S.C. § 1983.
Relying on the federal question jurisdiction arising out of the
§ 1983 claims, Alsip removed the case to federal court. Riley,
Casey, and Alsip filed a motion to dismiss the conspiracy count,
which we granted. Chico now asks that we alter or amend our
dismissal of the conspiracy count pursuant to Fed.R.Civ.Proc.
When the case was removed, Miller had not yet been served. On
August 2, 2005, three days before the 120-day period for service
was to expire, Chico's attorney left a copy of the complaint and
a summons issuing from our court with a woman sitting behind a
glass partition at the Oak Lawn police station. According to the
return of service form that he executed the following day, he
left the documents to be served at the Oak Lawn Police Department
at 9446 S. Raymond with an Officer Everrit "per instructions."
Miller now moves to dismiss the complaint as to him on the
grounds that this manner of service is insufficient. As an
alternative ground, he argues that the complaint should be dismissed for failure to state a claim
because the applicable statutes of limitation have expired.
A. Motion to Alter or Amend Judgment
Fed.R.Civ.Proc. 59(e) permits parties to file, within 10
days of the entry of a judgment, a motion to alter or amend the
judgment. Relief under Rule 59(e) is difficult to obtain. Kerr
v. WGN Contl. Broadcasting Co., 229 F. Supp. 2d 880, 883 (N.D.
Ill. 2002). Typically, a court only grants such a request only
where there is newly discovered evidence, an intervening change
in law, or a manifest error of law or fact. Cosgrove v.
Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998); Kerr,
229 F. Supp. 2d at 883. Rule 59(e) cannot be used to introduce legal
theories that the movant could have addressed during the prior
proceedings. Russel v. Delco Remy Div. of Gen. Motors Corp.,
51 F.3d 746, 749 (7th Cir. 1995). The decision to grant or deny a
Rule 59(e) motion "is entrusted to the sound judgment of the
district court." Matter of Prince, 85 F.3d 314, 324 (7th Cir.
B. Motion to Dismiss Pursuant to Fed.R.Civ.Proc. 12(b)(5)
For federal cases with Illinois defendants such as Miller, Rule
4(e) allows service to be made in one of three ways. First, a
defendant can be personally given a copy of the complaint and
summons. Fed.R.Civ.Proc. 4(e)(2); 735 ILCS 5/2-203(a)(1). Second, the copies can be left at the defendant's
abode with a person of suitable age and discretion.
Fed.R.Civ.Proc. 4(e)(2).*fn1 Third, if the defendant has an agent who
is authorized by the defendant or by operation of law to receive
service of process on the defendant's behalf, the complaint and
summons can be personally given to that agent. Id. An agency of
this kind does not typically arise through implication and is
"intended to cover the situation where an individual actually
appoints an agent for that purpose." Schultz v. Schultz,
436 F.2d 635, 637 (7th Cir. 1971).
When a defendant challenges sufficiency of service, the burden
is on the plaintiff to affirmatively demonstrate otherwise.
Robinson, 223 F.3d at 453. The consequence of insufficient
service within the requisite time period*fn2 is dismissal,
usually without prejudice. Fed.R.Civ.Proc. 4(m). C. Motion to Dismiss Pursuant to Fed.R.Civ.Proc. 12(b)(6)
When considering a 12(b)(6) motion to dismiss, a court
evaluates the legal sufficiency of a plaintiff's complaint, not
the merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th
Cir. 1990). We must accept all well-pleaded allegations as true
and will not dismiss a case for failure to state a claim unless
the plaintiff cannot prove any facts sufficient to support his
claim. Conley, 355 U.S. at 45-46. All inferences are to be
drawn in a light most favorable to the plaintiff. Jackson v.
E.J. Branch Corp., 176 F.3d 971, 978 (7th Cir. 1999). To survive
a motion to dismiss, a plaintiff need only provide a "short and
plain statement" under Rule 8(a)(2); the particulars of the claim
are not required. Midwest Gas Servs. v. Ind. Gas. Co.,
317 F.3d 703, 710 (7th Cir. 2002). Nonetheless, to withstand a motion to
dismiss, a complaint must allege facts that set forth the
essential elements of the cause of action. Doherty v. City of
Chicago, 75 F.3d 318, 326 (7th Cir. 1996).
With all of these principles in mind, we consider the parties'
A. Motion to Alter or Amend Judgment
Before looking to the merits of Chico's motion, we must
consider the threshold question of whether it was timely filed.
Alsip asserts that the motion was not filed within the strict
10-day period set out by the rule. According to Alsip, September
15 was 11 days after we entered judgment, thus making Chico's motion
filed that day untimely. Our decision, though dated August 31,
was not docketed until September 1. That is the day that the Rule
59(e) clock begins to run. See Laborers' Pension Fund v. A & C
Environmental, 301 F.3d 768, 775 n. 5 (7th Cir. 2002). For
deadlines of 11 days or fewer, Saturdays, Sundays, and holidays
(such as the Labor Day holiday that fell on September 5, 2005)
are not included in the calculation of time. Fed.R.Civ.Proc.
6(a). When we apply all of these rules, it is apparent that Chico
had until September 16 to file his Rule 59(e) motion. Because he
filed one day before that, his motion is timely, and we will
consider its merits.
The judgment that Chico seeks to amend or alter is a portion of
our decision on the earlier motion to dismiss for failure to
state a claim. That motion, filed by Riley, Casey, and the
Village of Alsip, was founded on the argument that Chico had not
stated a cognizable claim for conspiracy to deprive him of his
access to the courts, since the remainder of the allegations of
his complaint negated the idea that he was prevented from seeking
redress for his injury in court. One of Chico's responses to this
position was that the argument should not prevail because the
delay caused by Riley and Casey would enable Miller to assert a
potential statute of limitations defense if he appeared in this
case.*fn3 We agreed that the failure of Riley and Casey to
provide Chico with Miller's name and departmental affiliation did not prevent him
from filing a timely civil suit. Because knowledge of Miller's
name was not a mandatory predicate to the filing of a civil
complaint, we concluded that any delay in this case stemmed from
Chico's actions, not Riley and Casey's. In addition, we noted
that Chico waited almost a year to file once he did find out the
details about Miller. Thus, there was no injury to Chico's due
process rights that arose from the alleged agreement between
Riley, Casey, and Alsip, so no viable claim for conspiracy was
available to Chico.
In his Rule 59(e) motion,*fn4 Chico contends that our
ruling should not stand for two reasons. First, he argues that it
encourages police officers to unlawfully withhold information
about their fellow officers. Second, he contends that Illinois
does not require that a conspiracy needs to be successful before
it can be actionable.
Neither of these arguments advances newly discovered evidence,
an intervening change in law, or a manifest error of law or fact.
Cosgrove, 150 F.3d at 732; Kerr, 229 F. Supp. 2d at 883. Rather, they present theories that were or
should have been presented in the course of the briefing on the
earlier motion. Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th
Cir. 1996). To the extent that they were presented, we have
considered and rejected them. To the extent that they were not,
Chico has had his bite at this apple, and Rule 59(e) will not
afford him another. Russel v. Delco Remy Div. of Gen. Motors
Corp., 51 F.3d 746, 749 (7th Cir. 1995). Accordingly, his motion
to alter or amend our August 31, 2005, order is denied.
Even if Chico's arguments could fit within the types allowed by
Rule 59(e), they are without merit. Chico's claim that the ruling
of this court will encourage other officers to withhold
information from future plaintiffs is baseless. What the officers
did here was not sufficient to keep Chico from filing suit at any
point, so the benefit that Chico perceives is illusory. Thus,
there is no incentive for officers to behave in this manner, as
the potential for a suit being filed is in no way lessened by
such conduct. Our ruling simply does not establish the "no harm,
no foul" rule that Chico insists is inequitable.
With regard to the second argument, it is unclear precisely
what Chico means by the statement that a conspiracy need not be
successful to be actionable; the case he cites in support of it
says nothing to that effect. Rather, it states that a valid claim
of civil conspiracy must include both an agreement and a tortious
act. McClure v. Owens Corning Fiberglass Corp., 720 N.E. 2d 242, 258 (Ill. 1999).
Chico fails to acknowledge the importance of the word "tortious"
in this statement; an act does not become tortious until it works
injury upon another. See Reuben H. Donnelley Corp. v. Brauer,
655 N.E.2d 1162, 1173 (Ill.App.Ct. 1995). The delay in filing
suit that gave rise to the potential statute of limitations
problem was the result of Chico's actions, so any injury to Chico
did not result from the actions of Riley and Casey. Consequently,
their actions were by definition not tortious. Thus, this
argument also does not provide a meritorious basis to undo our
B. Motion to Dismiss Counts I, II, IV, V, VI, and VII
Miller's motion to dismiss is made pursuant to both
Fed.R.Civ.Proc. 12(b)(5) and 12(b)(6). Because the service issue
pertains to the viability of all of the claims against Miller, we
address it first.
In considering a challenge to sufficiency of service, we must
undertake a three-step inquiry. First, we must determine whether
Chico served Miller in accordance with the tenets of Rule 4(e)
before the 120-day period for service expired. Fed.R.Civ.Proc.
4(m). If he did not, we must next inquire whether he had good
cause for the failure to act in a timely manner. Id.; Panaras
v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340-41 (7th Cir.
1996). If no good cause exists, we must finally consider whether we should, given the facts of this case, grant Chico an extension
of time to effect service on Miller. Panaras, 94 F.3d at 341.
With respect to the first issue, it is clear that there was no
personal service nor abode service of Miller, so the only other
possibility under Rule 4(e) is delivery of the summons and
complaint to an agent authorized by appointment or by law to
receive service on Miller's behalf. Chico claims that the
requisite relationship is established here because his counsel's
law clerk spoke to an unidentified person at the police
department who told him the department would accept the complaint
and summons on behalf of Miller. Chico's counsel states that he
delivered the summons and complaint to an unidentified woman
behind a glass window at the police department. However, beyond
the statement of the unidentified participant in the phone call
with his law clerk, Chico's counsel identifies nothing to support
a conclusion that Miller authorized anyone at the department to
accept service on his behalf. An authorized agency does not arise
through implication, rather it is intended to involve only
actual, explicit authorization. See Schultz v. Schultz,
436 F.2d 635, 637 (7th Cir. 1971); see also James v. City of
Jersey City, D'Agosta, Anlin & Does, 187 F.R.D. 512, 516 (D.N.J.
1999) (concluding that Jersey City Police Department agreed to
accept service on behalf of defendant officer was not enough to
satisfy Fed.R.Civ.Proc. 4(e)); Cheek v. Doe, 110 F.R.D. 420,
421-22 (N.D. Ill. 1986) (leaving copy of complaint at IRS office did not adequately serve defendant IRS agent). Chico has
not advanced any support for a conclusion that Miller had an
agent authorized to accept service on his behalf, so his
counsel's actions at the police station were without legal
As an alternative, Chico contends that Miller's eventual
appearance in this suit should be sufficient to indicate that he
was properly served. While it is true that the underlying purpose
of service is to notify a defendant of the need to appear to
answer a plaintiff's allegations, it is well established that
actual notice of a lawsuit alone is not an acceptable substitute
for properly effected service. Robinson Engr. Co. v. Pension
Plan & Trust, 223 F.3d 445, 453 (7th Cir. 2000. The seriousness
of receiving a summons to appear in court and the consequences
attendant to a failure to appear mandate that a plaintiff execute
proper service before a defendant is brought into a litigation.
Troxell v. Fedders of North Am., 160 F.3d 381, 382 (7th Cir.
1998). The burden is on Chico to show that his manner of service
was legally sufficient, and he has not advanced an adequate basis
for a conclusion that Miller appointed the Oak Lawn police
department to receive service on his behalf, nor has he offered
any authority that the department was authorized by law to accept
service. Thus, we must conclude that Miller has not been served.
Because we have concluded that Miller has not been served
within the 120 days allowed by Rule 4, we must look whether he
had good cause for his failure. Panaras, 94 F.3d at 341. In light of the way this case unfolded, it is
apparent that the failure to timely serve was more the result of
a lack of diligence than any other reason. Good cause means a
justifiable reason for delay, usually something outside the
plaintiff's control like a defendant who evades service. Coleman
v. Milwaukee Board of School Dir., 290 F.3d 932, 934 (7th Cir.
2002). Here, Chico's counsel has offered no reason for his
failure to effect proper service beyond his belief resulting from
the phone conversation described above and his usual practice of
serving police officers at their stations. That is not enough to
convince us that he was justified in failing to ascertain and
fulfill his obligations under Rule 4.
Although we conclude that Chico does not have good cause for
failing to comply with the 120-day time frame, we must still
consider whether we think it appropriate to extend the period for
service. Panaras, 94 F.3d at 341. In this case, we think that
Chico has had ample time in which to effect service. The case was
pending in this court for two and a half months with no
appearance of anyone on behalf of Miller, and the two-year
statute of limitations expired on May 27, 2005, during those two
and a half months. Chico's counsel should have been aware that he
was hazarding serious consequences by letting the matter go until
the last minute, and then relying on spotty information to carry
out a task that he knew had significant legal ramifications. He
has made no other attempts at service. He halfheartedly contends
that other attempts would have been futile because Miller was overseas for part of the two
and a half years, but Miller returned to Illinois on April 9,
2005, only three short days after this case was filed. Such a
short time of unavailability does not absolve Chico of his
obligation to properly serve Miller, and there is no evidence
that he made any attempt to reach Miller while he was gone. Chico
had ample time to do more than casually drop off a copy of the
process with someone who, as far as he knew, only works at the
same place as Miller, but he did not. This does anything but cast
him in the favorable light necessary to justify an exercise of
our discretion in his favor. As a result, we do not find an
adequate reason to allow Chico more time to accomplish what he
should have done months ago.
Normally, a dismissal for insufficiency of service is without
prejudice, pursuant to Rule 4(m), allowing the plaintiff to
refile a complaint and restart the time for its service. However,
in this case, the statute of limitations period for any of the
counts has expired.*fn5 Accordingly, any refiling would be
futile, so we dismiss the complaint and the case with prejudice. In light of this outcome, we need
not consider the merits of Miller's 12(b)(6) motion.
Based on the foregoing analysis, Chico's Rule 59(e) motion is
denied and Miller's motion to dismiss pursuant to Rule 12(b)(5)
is granted. The case and complaint are dismissed with prejudice.
© 1992-2005 VersusLaw Inc.