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). ...