The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court are Defendants' Renewed Motions to Dismiss (Docs. 23 & 25). Defendant Mark Calvin originally filed a Motion to Dismiss and supporting memorandum (Docs. 4 & 5) and has since renewed said Motion and memorandum (Docs. 23 & 24). Defendants Southern Illinois Riverboat/Casino Cruises, Inc., d/b/a Harrah's Metropolis Casino ("Harrah's"), Robert Simpson and Dale Sellers have also filed a Motion to Dismiss (Doc. 6), which they have renewed via their Response to defendant Calving's Renewed Motion to Dismiss (Doc. 25). Plaintiff has responded in opposition to both Motions to Dismiss (Docs. 7 & 8), but has not filed a response to the renewed motions. However, the Court will consider Plaintiff's arguments as made in her Responses to the original Motions to Dismiss.
Both the Motions to Dismiss and the renewed Motions move for a dismissal of Plaintiff's Complaint pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(5), for Plaintiff's violation of FEDERAL RULE OF CIVIL PROCEDURE 4(m), namely, her failure to effectuate service of Defendants within 120 of the filing of her Complaint (Doc. 2). Plaintiff does not contest her failure to comply with Rule 4(m), however, she argues that good cause exists for allowing her an extension of time to serve Defendants. Alternatively, Plaintiff argues that the Court should exercise its discretion to allow a permissive extension of time for service. Because the Court finds that the circumstances in this case neither show good cause nor otherwise warrant a permissive extension, this case must be dismissed for insufficient service of process.
Plaintiff has filed suit against Defendants for events arising from the night of February 5, 2005, while she was playing blackjack at defendant Harrah's riverboat gambling casino, located in Metropolis, Illinois (Doc. 2, ¶¶ 9-10). Plaintiff alleges that defendants Simpson and Sellers asked her to leave the casino (Id. at ¶ 11). After cashing in her chips, Plaintiff alleges that while she was attempting to exit the riverboat casino, she was abruptly halted by defendants Calvin, Simpson and Sellers, who proceeded to aggressively and violently restrain her (Id. at ¶¶ 12-16).
Next, Plaintiff alleges she remained handcuffed and was forcibly detained by Defendants for approximately thirty minutes until she was escorted by a Metropolis police officer, Michael Harrison, to the Massac County Detention Center (Id. at ¶¶ 17-18). Plaintiff was placed under arrest for aggravated battery, aggravated battery of a peace officer, and resisting or obstructing a peace officer. She remained in police custody until the evening of February 7, 2005 (Id. at ¶ 18). On September 8, 2005, Plaintiff alleges that all criminal charges brought against her for the events of February 5, 2005 were dismissed by the Circuit Court of Massac County, Illinois (Id. at ¶ 19).
Plaintiff brings a count alleging a civil rights § 1983 claim of excessive use of force against defendant Calvin (Doc. 2 - Count 1). Against defendants Calvin, Simpson and Sellers, she also brings separate counts for false imprisonment (Counts 2, 5 & 8), assault and battery (Counts 3, 6 & 9) and intentional infliction of emotional distress (Counts 4, 7 & 10). Against defendant Harrah's, Plaintiff has brought a count alleging respondeat superior liability for the actions of defendants Calvin, Simpson and Sellers (Count 11).
The allegations in the instant suit were the subject of a prior suit filed in this Court by Plaintiff, entitled Craig v. Southern Illinois Riverboat/Casino Cruises, Inc., d/b/a Harrah's Metropolis Casino, et al., Case No. 05-cv-812-DRH. Plaintiff's prior related suit was voluntarily dismissed without prejudice, over defendant Calvin's objection, on January 19, 2007. Plaintiff filed the instant suit on January 18, 2008 -- one day prior to the one-year deadline for refiling.
Defendants have all moved for dismissal pursuant to Rule 12(b)(5) for insufficient service of process.In accordance with Rule 4(m):
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 ...