The opinion of the court was delivered by: Blanche M. Manning United States District Judge
Three motions to dismiss are before the court: (1) police officers Herman Thomas and Cory Jones' motion to dismiss pursuant to Rule 4(m) based on untimely service; (2) paramedic Sean Finn, Caruso Locket, David Navarro, and David Jamison's motion to dismiss pursuant to Rule 4(m) based on untimely service; and (3) the City of Chicago's motion to dismiss Counts III and IV pursuant to Rule 12(b)(6). For the reasons set forth below, the motions to dismiss based on Rule 4(m) are denied, the City's motion to dismiss Count III is denied, and the City's motion to dismiss Count IV is granted.
The following facts are taken from plaintiff Robert Cole's complaint, and are deemed to be true for the purposes of the motion to dismiss. On July 14, 2005, after experiencing chest pains, Cole called 911. An ambulance arrived and transported Cole to Roseland Hospital. Upon Cole's arrival, Chicago Fire Department paramedic Demond Ward (who subsequently passed away on March 11, 2007) allegedly pulled Cole from the ambulance and slammed him to the ground. Ward next forced Cole into the emergency room and verbally threatened him, and then dragged him back outside, where he battered and assaulted Cole. Other Chicago Fire Department paramedics and Roseland security personnel either failed to intervene or failed to investigate the incident. Following the beating, Cole called the police to report the incident but police officers arriving on the scene arrested Cole for aggravated battery.
Cole's third amended complaint contains seventeen counts containing claims arising under state and federal law including battery, assault, willful and wanton conduct, negligence, premises liability, and false imprisonment and civil rights violations under 42 U.S.C. § 1983. Count III is a § 1983 claim against paramedic defendant Ward based on his alleged use of excessive force, and Count IV is a claim against paramedic defendants Finn, Lockett, Navarro, and Jamison for failure to intervene in violation of § 1983 after they allegedly saw Ward using excessive force against Cole.
A. The Paramedics' and Police Officers' Motions to Dismiss Pursuant to Rule 4(m)
On July 14, 2006, Cole filed a state court complaint based on events that allegedly transpired on July 14, 2005. On August 30, 2006, this action was removed to federal court based on the § 1983 claims in Cole's complaint. On November 6, 2007, certain defendants moved to dismiss portions of the complaint. While this motion was being briefed, on January 25, 2007, the court directed that summons would reissue as to the individual defendants, and on February 1, 2007, Cole obtained these summons. The group of defendants who had filed the motion to dismiss, in the meantime, failed to file their reply and on March 6, 2007, the court ruled without the benefit of their views.
Later that month, the court granted leave for Cole to amend his complaint, and on April 3, 2007, Cole filed his amended complaint. On April 5, 2007, Cole moved for an extension of time to serve the complaint. On April 10, 2007, Magistrate Judge Brown granted this motion and gave Cole until June 11, 2007, to effect service. Cole was also given leave to amend his complaint again, which he did. In July of 2007, Cole was again granted leave to amend his complaint, which he again did. The paramedic defendants and police officer defendants filed their motions to dismiss on August 10, 2007, and August 13, 2007, respectively. The police defendants were served (with the then-existing version of the complaint) on February 15, 2007, and the paramedic defendants were served on June 1, 2007 (Navarro), June 3, 2007 (Finn), and June 6, 2007 (Jamison).
Contrary to Cole's arguments, federal law provides the governing rules regarding service of process post-removal. See Fed. R. Civ. P. 81(c)(1) (the Federal Rules "apply to a civil action after it is removed from a state court"); see also Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 (7th Cir. 2001). Pursuant to Rule 12(b)(5), an action may be dismissed due to insufficiency of service of process. Fed. R. Civ. P. 12(b)(5). Rule 4(m) requires a plaintiff to serve his complaint within 120 days after it is filed, and provides that the court must extend the time to effect service if the plaintiff shows good cause for his failure to comply with the 120-day requirement. Fed. R. Civ. P. 4(m). To show good cause, the plaintiff must point to evidence showing that he used "reasonable diligence" in attempting to serve the defendants within Rule 4(m)'s 120-day period. Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). If the plaintiff establishes good cause, the court must extend the time for service. Id. Alternatively, if the plaintiff fails to establish good cause, the court must consider whether a permissive extension of time for service is warranted. Id.
Here, the police officer and paramedic's Rule 12(b)(5) motion to dismiss appears to be a back-door effort to seek reconsideration of Magistrate Judge Brown's April 10, 2007, order granting Cole's request for an extension of time until June 11, 2007, to effect service. Having not objected to this order, they cannot now challenge it. See Fed. R. Civ. P. 72(a). In any event, the court would not have dismissed the complaint based on untimely service of process. Cole's counsel tried to effect service on multiple occasions. In addition, the statute of limitations would bar Cole from refiling his complaint against the individual defendants. See Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d at 341, citing Advisory Committee Note to the 1993 Amendments to Fed. R. Civ. P. 4(m) ("Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service").
Finally, the defendants' argument about prejudice is unconvincing. They contend that Chicago Fire Department paramedic Demond Ward was a key witness who died on March 11, 2007. According to the defendants, if they had been served prior to Ward's death, they would have been able to depose Ward. No evidence, however, indicates that the parties would have sprung into action and begun to depose witnesses immediately following service had the individual defendants been served within the original 120-day period. Instead, the only way that Ward would have been deposed prior to his death is if the parties were gifted with prevision and knew that Ward was on the brink of death. The failure to depose Ward during his lifetime thus cannot be credibly laid at Cole's door. In short, the individual defendants' motions to dismiss pursuant to Rule 12(b)(5) are denied because they are untimely attempts to challenge a ruling by Magistrate Judge Brown and, in any event, fail on the merits.
B. The City's Rule 12(b)(6) Motion to Dismiss Cole's § 1983 Claims ...