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Burgess v. City of Alton

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


June 4, 2007

BESSIE MAE BURGESS AND HOSIE BURGESS, INDIVIDUALLY, AND ON BEHALF OF THEIR SON, HOSIE BURGESS, JR., PLAINTIFFS,
v.
THE CITY OF ALTON, DONALD E. SANDRIDGE, CHRIS SULLIVAN, ROGER WEST, JASON SIMMONS, GARY CRANMER, AND TIMOTHY BOTTERBUSH, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.

The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM and ORDER

I. Introduction

Pending before the Court is Defendant Tim Botterbush's motion to dismiss for failure of service (Doc. 23). Specifically, Botterbush moves the Court to strike the Return of Service (Doc. 15) and dismiss Plaintiffs's First Amended Complaint for improper service. Plaintiffs oppose the motion arguing that they twice requested Defendant Botterbush to waive service by counsel and that on January 21, 2007, Botterbush was served with the summons and complaint (Doc. 26). Based on the following, the Court denies Botterbush's motion.

II. Analysis

Rule 4(m) of the Federal Rule of Civil Procedure provides in part: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant 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....

Even if good cause for an extension does not exist, the Court has discretion to grant an extension. Henderson v. United States, 517 U.S. 654, 662 (1996); Panaras v. Liquid Carbonic Industries Corp., 94 F.3d 338, 340-41 (7th Cir. 1996). While service was not effected within the 120-day period as provided under Rule 4(m) and Plaintiffs have not demonstrated/argued good cause for granting an extension of the 120-day period, the Court finds that sufficient reason exists to grant a discretionary extension of time. Here, the record reflects that Botterbush had actual notice of the lawsuit through the copy of the summons and complaint left with his part-time housekeeper on December 22, 2006 (Doc. 15) and that he was served with the summons and Amended Complaint at his house on January 21, 2007 (Doc. 25). Further, Plaintiffs were proceeding pro se at the time the original complaint was filed on August 29, 2006 (Doc. 1).*fn1 The short delay in service was not prejudicial to Defendant Botterbush.*fn2 The Court finds that based on these circumstances Plaintiffs are entitled to reasonable time to cure the defect and have already done so.

III. Conclusion

Accordingly, the Court DENIES Defendant Botterbush's motion to dismiss for failure of service (Doc. 23).

IT IS SO ORDERED.

David R. Herndon United States District Judge


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