IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
March 29, 2011
EDDIE J. SYKES, PLAINTIFF,
OLY OBADINA, SARAH FARISS, AND NURSE HILL, DEFENDANTS.
The opinion of the court was delivered by: Williams, Magistrate Judge:
MEMORANDUM AND ORDER
Before the Court is a Motion to Quash Service of Process filed by Defendant Olukunle Obadina, M.D. ("Dr. Obadina"; incorrectly named as "Oly Obadina").*fn1 In his Motion to Quash, Dr. Obadina argues that Plaintiff Eddie J. Sykes' ("Sykes") attempted service of him was defective because it did not comply with FEDERAL RULE OF CIVIL PROCEDURE 4(e). Specifically, Dr. Obadina claims that Sykes never served him personally but rather, service was made upon Charlene Whitley, Litigation Coordinator, at Pinckneyville Correctional Center ("Pinckneyville") (see Doc. 26). Dr. Obadina further alleges that he has been in Africa since January 2010 and thus, he was unavailable for personal service at Pinckneyville in August of 2010. To date, Sykes as not responded to Dr. Obadina's motion. Pursuant to SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 7.1(g), the Court considers Sykes' failure to respond as an admission of the merits of the motion.*fn2 However, even if Sykes had responded, for the following reasons, the motion would have been granted.
"[V]alid service of process is necessary in order to assert personal jurisdiction over a defendant." Mid-Continent Wood Products, Inc. v. Harris, 936 F.2d 297, 301 (7th Cir. 1991), citing Rabiolo v. Weinstein, 357 F.2d 167 (7th Cir. 1966). When the sufficiency of service of process is contested, plaintiff ordinarily bears the burden of showing that service was proper. Homer v. Jones-Bey, 415 F.3d 748, 754 (7thCir. 2005), citing Claus v. Mize, 317 F.3d 725, 727 (7th Cir. 2003). As Dr. Obadina points out, here, Sykes never served him personally with the Summons and Complaint. Rather, service was made upon the Litigation Coordinator at Pinckneyville, Charlene Whitley (see Doc. 26). Service on such a third party, however, is insufficient unless a plaintiff demonstrates that the party was "specifically appointed as an agent to accept service of process." Id. Here, Sykes has made no such showing. Further, because Dr. Obadina apparently has been in Africa since January 2010, it is unlikely that Sykes could show either that Dr. Obadina was available to accept personal service or that he appointed someone to accept service on his behalf when service was first attempted in August of 2010.
Accordingly, the Court finds that Sykes attempted service of process in this action did not comply with FED. R. CIV. P. 4(e). It then follows that this Court lacks personal jurisdiction over Dr. Obadina. Therefore, Defendant Olukunle Obadina's Motion to Quash Service of Process (Doc.37) is hereby GRANTED.
Pursuant to FED. R. CIV. P. 4(m), the Court extends the time for service of Defendant Obadina for 30 more days. By Friday, April 29, 2011, Plaintiff Sykes must either serve process on Defendant Obadina or provide additional information to the Court to locate this Defendant so that process may be served upon him. The undersigned Judge RECOMMENDS that, if after the expiration of 30 days Defendant Obadina is not served or located, Defendant Oly Obadina should be dismissed without prejudice from the action as described in FED. R. CIV. P. 4(m).
IT IS SO ORDERED.
STEPHEN C. WILLIAMS United States Magistrate Judge