The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Plaintiff Calvin Benford brings an action against Defendant Chicago Beverage Systems L.L.C. ("CBS" or "Defendant") alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") (Count I), 29 U.S.C. § 621 et seq., retaliatory discharge in violation of the Illinois Workers' Compensation Act (Count II), 820 ILCS § 305/1 et seq., and retaliatory discharge for reporting a supervisor's improper conduct (Counts III and IV). Before the Court now is Defendant's Motion to Dismiss Plaintiff's Amended Complaint. Defendant argues that dismissal of the complaint is appropriate because Plaintiff failed to properly serve the complaint pursuant to Fed. R. Civ. P. 12(b)(5), or, in the alternative, that dismissal of Count IV is appropriate pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, Defendant's motion is DENIED.
Plaintiff was terminated from his position at CBS on October 11, 2005. On December 11, 2007, Plaintiff filed his Complaint, which was later amended. At the time, Plaintiff was representing himself pro se. The Court granted Plaintiff's in forma pauperis application on March 6, 2008. On June 13, 2008, the Summons was issued. On June 17, 2008, Defendant was served with Plaintiff's Amended Complaint, though it had not been served with Plaintiff's original Complaint. Defendant received the Amended Complaint over six months after the lawsuit was first filed, but less than 120 days after Plaintiff's in forma pauperis application was granted.
Count IV alleges that Defendant effectuated a retaliatory discharge in violation of Illinois public policy when Plaintiff was terminated after he reported to CBS's management that his direct supervisor instructed him to load inventory on different trucks than was outlined in his written instructions. Am. Compl. ¶ 13, 41.
1. Rule 12(b)(5) Motion to Dismiss Complaint
Defendant moves pursuant to Rule 12(b)(5) to dismiss Plaintiff's Amended Complaint for insufficient service of process. Under Fed. R. Civ. P. 4(m), a plaintiff has 120 days after filing his complaint to serve a defendant. If the defendant is not served within 120 days, the court must dismiss the complaint without prejudice so that service can be made within a specific time. Id. If the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Id.
Plaintiff argues that the 120 day filing period under Rule 4(m) begins tolling when a court grants a plaintiff's in forma pauperis application. For this proposition, Plaintiff relies on Saniat v. City of Chicago, No. 96 CV 5191, 1998 WL 749399, *5 (N.D. Ill. Oct. 16, 1998) ("[T]he Court granted [Plaintiff's in forma pauperis] application, which started the Rule 4(m) clock ticking . . . ."). Saniat, in turn, relies on the Seventh Circuit's holding in Robinson v. America's Best Contacts and Eyeglasses, 876 F.2d 596, 598 (7th Cir. 1989), which interpreted Northern District of Illinois Local Rule 11 to mean that a complaint is deemed filed as of the date of the judge's order granting an in forma pauperis application. However, closer inspection of Local Rule 11 (now codified as Local Rule 3.3) reveals Plaintiff's argument to be incomplete. Local Rule 3.3(d) states:
Date of filing. If the judge grants the IFP petition, the complaint shall be filed as of the date of the judge's order except that where the complaint must be filed within a time limit and the order granting leave to file is entered after the expiration of that time limit, the complaint shall be deemed to have been filed:
(1) in the case of any plaintiff in custody, as of the time of the plaintiff's delivery of the complaint to the custodial authorities for transmittal to the court; or
(2) in the case of any other plaintiff, as of the time the complaint was received by the clerk.
Id. (emphasis added). This Court granted Plaintiff's in forma pauperis application on March 6, 2008. Under the first clause of Local Rule 3.3(d), the Amended Complaint would be deemed as filed on March 6, 2008. However, this situation fails within the exception to the rule. The statute of limitations for Plaintiff's ADEA claim is ninety days from the receipt of his Notice of Right To Sue from the Equal Employment Opportunity Commission. 42 U.S.C. § 2000e-5(f)(1). If the Complaint is regarded as having been filed on December 11, 2007, it would fall within the statute of limitations. If it is regarded as having been filed on March 6, 2008, the statute of limitations would have expired on the ADEA claim. Therefore, according to Local Rule 3.3(d)(2), Plaintiff's complaint must be deemed as having been filed when the complaint was received by the clerk. Therefore, the complaint was filed on December 12, 2007.
However, Plaintiff's failure to serve Defendant within 120 days of filing the complaint does not necessarily require the dismissal of his complaint. If the plaintiff shows good cause for the failure, the district court must extend the time for service for an appropriate period. Fed. R. Civ. P. 4(m). Good cause exists where there are "a valid reasons for delay, such as the defendant's evading service." Coleman v. Milwaukee Bd. of School Dirs., 290 F.3d 932, 934 (7th Cir. 2002). Even where the plaintiff has not demonstrated good cause, the Court may, in its discretion, either extend time for service of process or dismiss the action without prejudice. Id.; Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 341 (7th Cir. 1996). For this determination, the district court must consider the consequences to both parties in making this decision, including such factors as (1) whether the statute of limitations would bar the refiled action, (2) whether the defendant evaded service or concealed a defect in attempted service, (3) whether granting an extension of time in which to serve the defendant would prejudices the defendant's ability to defend the lawsuit, (4) whether ...