The opinion of the court was delivered by: J. Phil Gilbert District Judge
This cause comes before the Court on defendant CB Sports Bar, Inc.'s ("CB Sports") Motion to Dismiss (Doc. 23) pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6). Plaintiff Loretta Reynolds ("Reynolds") has responded to the motion (Doc. 26), and CB Sports has replied to that response (Doc. 27).
This case arose after Reynolds was visiting the southern Illinois area and, on the evening of October 26, 2005, and early morning of October 27, 2005, went to Jerzey's Sports Bar ("Jerzey's"), owned by CB Sports. When she tried to leave the bar to drive back to her hotel, she found that her car would not start. Reynolds alleges that she returned to the bar and asked the bartender to help her get a taxi. She claims the bartender told her there were no taxis or other kinds of assistance available and she would have to get a ride to her hotel with someone else. Reynolds claims defendants Brenda L. Russell ("Russell") and Casey J. Carson ("Carson") offered to drive her to her hotel after buying her drinks and possibly drugging her. After the three left Jerzey's together, Reynolds learned that Russell and Carson were attempting to abduct her in order to sexually exploit her. Despite her intoxicated state, Reynolds escaped from Russell and Carson's vehicle and began walking to her hotel. She was then struck by a truck as she walked along the roadside.
Reynolds filed this lawsuit alleging negligence against Russell, Carson and CB Sports (Counts 1 and 2) and claiming punitive damages (Count 3). CB Sports asks the Court to dismiss Reynolds's claims against it for two reasons: (1) it was served late without good cause, and (2) Reynolds fails to state a claim on which relief can be granted. The Court will address each issue in turn.
This portion of CB Sports's motion is governed by Rule 12(b)(5), which governs requests for dismissal for insufficient service of process such as, for example, when service is untimely under Federal Rule of Civil Procedure 4(m). When the sufficiency of service of process is challenged, the plaintiff has the burden of proving adequate service. Lindsey v. United States, 448 F. Supp. 2d 37, 42 (D.D.C. 2006) (citing Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987)).
A. Relevant Service Facts
Reynolds filed this lawsuit in October 2007, and summons was issued on January 2, 2008, for service on CB Sports at the address for Jerzey's. Reynolds claims she sent the summons and complaint via certified mail, but no one from CB Sports picked up or signed for the certified delivery. Alias summons was issued on February 14, 2008, this time to CB Sports at the address listed on a 2005 liquor license application filed by Christian Biancur ("Biancur"), president of CB Sports and manager of Jerzey's. Reynolds again says she sent the summons and complaint by certified mail, and again no one picked it up or signed for it. Service on CB Sports was eventually made by personally delivering the summons and complaint to Biancur at Jerzey's on June 10, 2008.
Since Reynolds filed this case Jerzey's has generally been open ten hours a day with a manager present at all times except holidays. Biancur himself was present at Jerzey's in person five days a week for 30 to 60 hours per week during January and February 2008.
CB Sports asks the Court to dismiss this case because Reynolds served it more than 120 days after the complaint was filed. Reynolds argues that she had good cause for failing to serve CB Sports in a timely manner because Biancur was evading service of process.
The Court's review of this matter necessarily starts with Federal Rule of Civil Procedure 4(m), which governs the time in which process must be served. That rule provides, in pertinent part:
If a defendant is not served within 120 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. . . .
Fed. R. Civ. P. 4(m). This rule requires a court to grant an extension if the plaintiff shows good cause, but leaves it to the court's discretion whether to grant an extension if the plaintiff shows excusable neglect. Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002); ...