The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Defendant Koetter Woodworking's (hereinafter "Koetter") Motion to Dismiss (Doc. 15) and Memorandum in Support Thereof (Doc. 16). Plaintiff Melvin Kimbrell (hereinafter "Kimbrell") filed a Response (Doc. 24) as well as a Motion for Hearing (Doc. 25) on the issues presented by Koetter's motion. Koetter filed a Reply (Doc. 30) to Kimbrell's filings. This case is currently stayed as to Defendant Kary Brown (hereinafter "Brown"). (See Doc. 32). For the following reasons, the Court, inter alia, GRANTS Koetter's motion.
As discussed infra, the Court will be treating Koetter's motion to dismiss as one under Federal Rule of Civil Procedure 12(b)(5)(hereinafter "Federal Rule 12(b)(5)") for insufficient service of process.*fn1 Analysis under Federal Rule 12(b)(5) may include consideration of matters outside the pleadings. See Harris v. Gland-O-Lac Co., 211 F.2d 238 (6th Cir. 1954) (wherein the court relied on affidavits in quashing service). "In determining whether service has been properly made [under Federal Rule 12(b)(5)], 'the facts are viewed in a light most favorable to the non-moving party.'" United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., Nos. 2:07-CV-358 JVB, 3:08-CV-60-JVB, 2009 WL 2762763, at *1 (N.D. Ind. Aug. 26, 2009) (quoting Pike v. Decatur Mem'l Hosp., No. 1:04-CV-0391-JDT-TAB, 2005 WL 2100251, at *1 (S.D. Ind. Aug. 26, 2005)); see also Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003) (discussing the standard governing a similar motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction). However, a plaintiff's diligence as it relates to service of process "must be established factually, by affidavits in conformance with the rules of evidence." Mayoral v. Williams, 579 N.E.2d 1196, 1199 (Ill. App. Ct. 1991).
On October 16, 2008, just two weeks before the applicable statute of limitations expired, Kimbrell filed a two-count complaint in St. Clair County against Brown and Koetter for personal injury from an automobile accident that occurred on October 30, 2006. Kimbrell was a passenger in one of the vehicles involved in the collision, and Brown drove the vehicle that purportedly caused the accident. Kimbrell contends that Brown was acting as an agent of Koetter at the time of the accident.
Despite the fact that Koetter had been located and accepted service of process at the same address in Indianapolis, Indiana, since 1959, it was not until June 5, 2009, that Kimbrell obtained a summons in order to serve Koetter. Service would be properly effectuated six days later. This was roughly eight months after the complaint's initial filing in St. Clair County. In the interim, the state court set Koetter's case for three mandatory status conferences.*fn2 Kimbrell appeared at the first, failed to appear at the second, and appeared at the third. As explanation for the belated service, Kimbrell points to correspondence between his former attorney and defense counsel before and after the statute of limitations expired.*fn3 Kimbrell's attorney also cites to difficulty in locating a process server that would serve an out-of-state summons.
Koetter properly removed this case to federal court on July 21, 2009, on grounds of diversity jurisdiction. (See Doc. 7);28 U.S.C. § 1332 (2006). On that date, Koetter filed its answer followed by the instant motion. Upon learning of Brown's bankruptcy filing, the Court stayed all proceedings against him, including any additional briefing or ruling as to his motion to dismiss. (See Doc. 32). However, in light of Pitts v. Unarco Industries, Inc., 698 F.2d 313, 314 (7th Cir. 1983), the Court ruled that Kimbrell's action against Koetter would continue absent a showing of unusual circumstances, including disposition of the instant motion to dismiss.
In its motion to dismiss, Koetter argues that Kimbrell failed to comply with Illinois Supreme Court Rule 103(b)'s (hereinafter "Illinois Rule 103(b)") requirement of reasonable diligence in effectuating process. Kimbrell responded by arguing that Koetter waived this argument by filing its answer prior to its motion or, alternatively, that Kimbrell acted with reasonable diligence in serving Koetter.
As a preliminary matter, the Court notes that its application and analysis of Illinois Rule 103(b) is proper. "[F]ederal courts may apply state procedural rules to pre-removal conduct." Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 (7th Cir. 2001) (wherein the Seventh Circuit upheld the applicability of Illinois Rule 103(b) in federal court). This understanding makes great practical sense with respect to Illinois Rule 103(b): "to hold otherwise would render the federal courts powerless to address the timeliness of service after removal." Id. at 1123. "In determining the validity of service prior to removal, a federal court must apply the law of the state under which the service was made . . . ."*fn4 Allen v. Ferguson, 791 F.2d 611, 616 n.8 (7th Cir. 1986). As a result, Illinois Rule 103(b) has been previously employed and addressed by federal district courts in the Seventh Circuit. See, e.g., Voogd v. Pavilion Found., No. 03 C 2465, 2004 WL 877996, at *2 (N.D. Ill. Apr. 23, 2004); DeJesus v. Jeschke, No. 02 C 1685, 2002 WL 1400532 (N.D. Ill. June 27, 2002); Kozak v. City of Chicago, No. 94 C 5652, 1994 WL 687591 (N.D. Ill. Dec. 7, 1994); McKenna v. Beezy, 130 F.R.D. 655 (N.D. Ill. 1989).
I. Koetter Did Not Waive Its Motion to Dismiss
Kimbrell first argues, under Federal Rule of Civil Procedure 12(b) (hereinafter "Federal Rule 12(b)"), that Koetter waived any argument under Illinois Rule 103(b) by filing its motion and answer contemporaneously. Federal Rule 12(b) requires that defenses thereunder, including insufficient service of process, be asserted before a responsive pleading, if allowed. However, when filed contemporaneously, courts often consider the motion to dismiss to predate the answer. See, e.g., Contois v. State Mut. Life Assur. Co. of Worcester, Mass., 66 F. Supp. 76, 77 (D.C. Ill. 1945), aff'd, 156 F.2d 44 (7th Cir. 1946); U.S. Fid. & Guar. Co. v. Bank of Bentonville, 29 F. Supp. 2d 553, (D.C. Ark. 1998); Invamed, Inc. v. Barr Labs., Inc., 22 F. Supp. 2d 210, 215 (S.D.N.Y. 1998); see also Smith v. LaFollette, No. 93-2639, 1994 WL 142877, at *10 (7th Cir. 1994) ("courts have allowed . . . motions [to dismiss] to be brought after the answer has been filed, particularly where, as here, resolution of the motion will determine whether the lawsuit goes forward."). Meanwhile, Federal Rule of Civil Procedure 12(h) exempts the defense under Federal Rule of Civil Procedure 12(b)(6) (hereinafter "Federal Rule 12(b)(6)") for failure to state a claim upon which relief can be granted from the timing structure of Federal Rule 12(b). Fed. R. Civ. P. 12(b), (h)(2); see, e.g., Beck v. Edward D. Jones & Co., 735 F. Supp. 903, 904 (C.D. Ill. 1990) ("the defense of failure to state a claim upon which relief can be granted [is] preserved from waiver; therefore, motions raising this matter may be considered by the court even when interposed after the responsive pleading has been filed . . . .").
Here, Koetter filed its answer three minutes before its motion to dismiss, and Kimbrell contends that the order of these filings is tantamount to waiver of Koetter's motion. But, as discussed above, relevant precedent does not mandate waiver. Moreover, given that the filings were made three minutes apart, a finding of waiver would be highly inequitable. Koetter should not be subject to such a harsh result because its attorney or, more likely, its attorney's paralegal, legal assistant, or secretary uploaded filings in a slightly incorrect order. Kimbrell cites no law in support of its formalist approach, and the Court can think of none. While the Court could construe Koetter's motion as a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), see, e.g., Jordan v. Ingalls Mem'l Hosp, No. 96 C 6692, 1997 WL 665858, at *1 (N.D. Ill. 1997), the Court will exercise its discretion in not doing so. The Court deems Koetter's motion to dismiss to predate its answer, thereby rendering said motion as timely under Federal Rule 12(b).*fn5 Accordingly, the Court can and will address its merits. However, first, the Court must address one more procedural issue.
II. Federal Rule 12(b)(5) Is the Procedural Basis for Koetter's Motion to Dismiss, Which Allows the Court to Consider Matters Outside the Pleadings.
Substantive analysis of Illinois Rule 103(b) within the procedural bounds of Federal Rule 12(b) presents a unique issue. The parties have submitted several extrinsic documents and affidavits in support of their briefing. Under Federal Rule of Civil Procedure 12(d), if Koetter's motion is to be viewed as one to dismiss under Federal Rule 12(b)(6), the Court must either disregard those extrinsic filings or ...