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Orvil Duane Hassebrock v. Robert G. Bernhoft

February 6, 2012

ORVIL DUANE HASSEBROCK, PLAINTIFF,
v.
ROBERT G. BERNHOFT, THE BERNHOFT LAW FIRM, S.C., DEFENDANTS.



The opinion of the court was delivered by: Stiehl, District Judge:

ORDER

Before the Court is plaintiff Orvil Duane Hassebrock's motion for default judgment against defendants Robert G. Bernhoft and the Bernoft Law Firm, S.C. (Doc. 7). Defendants have responded (Doc. 11), and plaintiff has replied (Doc. 15). Also before the Court is defendants' motion to dismiss for failure to serve them with a summons (Doc. 10). Plaintiff responds and moves for additional time to properly serve defendants (Docs. 15 & 16), which defendants oppose (Doc. 17).

BACKGROUND

Plaintiff retained defendants in August 2005 to file his delinquent taxes with the IRS. Bernhoft evidently is (or was) a tax protester, and the U.S. Attorney General once sued to enjoin him from participating in the "De-Taxing America Program" and from inciting others to violate the tax laws. See United States v. Raymond, 228 F.3d 804, 808 (7th Cir. 2000). Plaintiff terminated defendants in December 2008. He alleges they never filed his taxes, and he was ultimately convicted by a jury of tax evasion and failure to file a tax return. Both convictions were recently upheld on appeal. See United States v. Hassebrock, 663 F.3d 906, 910 (7th Cir. 2011).

Plaintiff filed his complaint pro se on September 2, 2010, alleging fraud, legal malpractice, and violations of the Racketeer Influenced and Corrupt Organizations Act, 28 U.S.C. § 1964(a) (Doc. 1). He also wants to report alleged crimes defendants committed against him to a grand jury.

After the complaint was filed, however, nothing happened in this case until the Court issued a notice of impending dismissal for want of prosecution, because it appeared that plaintiff had not yet served defendants (Doc. 2). Plaintiff responded soon after with the server's affidavit (Doc. 3, Ex. 1). The affidavit says only a copy of the complaint and "Exhibit A" were served. After this, however, again the case did not proceed, so the Court issued an order to show cause directing plaintiff to file a motion for entry of default in accordance with Local Rule 55.1 (Doc. 4). Plaintiff filed the motion, and the Clerk entered default against defendants (Doc. 6).

Plaintiff then submitted the motion for default judgment now pending (Doc. 7). He certifies that he sent notice of the Clerk's entry of default by mail to defendants at their last-known address, and he provides the return receipt of the mail. Defendants respond that plaintiff's motion for default judgment is premature because he did not send them the notice of the Clerk's entry of default, as required by the Court's local rules. See SDIL-LR 55.1(a).

Defendants also moved to dismiss under Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process for failure to serve a summons with the complaint. Defendants submit an affidavit from attorney Daniel J. Treuden stating that plaintiff did not serve them with a summons. In the alternative, they move to dismiss under Rules 4(k) and 4(m) because the 120-day period for service has expired. The complaint was filed on September 2, 2010 (Doc. 1), and service was due by January 3, 2011.*fn1

ANALYSIS

The Court will first address defendants' motion to dismiss, since it resolves the motion for default judgment. The burden is on the plaintiff to demonstrate that the district court has jurisdiction over each defendant through effective service. Cardenas v. City of Chi., 646 F.3d 1001, 1005 (7th Cir. 2011). "If a defendant is not served within 120 days after the complaint is filed, the court . must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m). "But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Id. (emphasis added); accord Cardenas, 646 F.3d at 1006; United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008); United States v. McGlaughlin, 470 F.3d 698, 700 (7th Cir. 2006). Absent good cause, whether to dismiss or extend the period for service is "inherently discretionary." Cardenas, 646 F.3d at 1005; accord Ligas, 549 F.3d at 501; Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002). In making that determination, courts should consider the relative hardships of the parties. Cardenas, 646 F.3d at 1006.

First, plaintiff does not meet his burden of demonstrating that this Court has jurisdiction over defendants through effective service. Plaintiff believes he provided the summons with the complaint, but admits he cannot say that "with reasonable assurance." At the time he served defendants, he was trying to get his affairs in order before reporting to prison. He also lost his son shortly after his criminal conviction. Defendants submit an affidavit stating that plaintiff did not serve them with a summons. In addition, the server's affidavit says that only copies of the complaint and Exhibit A were served on defendants, not a summons. Therefore, even though plaintiff believes he served the summons, the Court FINDS he did not.

In light of the failure to serve a summons, the Court can briefly dispose of plaintiff's motion for default judgment. A summons must be served with a copy of the complaint. Fed. R. Civ. P. 4(c)(1). And "valid service of process is necessary in order to assert personal jurisdiction over a defendant." Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d 297, 301 (7th Cir. 1991); accord Fed. R. Civ. P. 4(k)(1); United States v. Ligas, 549 F.3d 497, 500 (7th Cir. 2008). Moreover, a judgment rendered without jurisdiction over the person could be attacked at any time for lack of jurisdiction. Homer v. Jones-Bey, 415 F.3d 748, 752 (7th Cir. 2005). Consequently, the Court cannot enter a valid judgment here. Plaintiff has not established personal jurisdiction over defendants. The motion for default judgment is therefore DENIED, and the Clerk's entry of default is SET ASIDE.

Returning to the motion to dismiss, the Court notes that plaintiff does not argue that good cause exists for his failure to serve defendants. The above facts about having to report to prison are written beneath a heading that says "Good Cause," but plaintiff does not expressly say whether those facts constitute good cause under Rule 4(m). Defendants respond that plaintiff has not shown good cause and, therefore, that this case must be dismissed without prejudice. In pressing for dismissal, they rely on Geiger v. Allen, 850 F.2d 330, 331 (7th Cir. 1988). Yet Rule 4 has been amended since Geiger, giving courts discretion whether to dismiss or allow an extension of time, even without a showing of good cause. Henderson v. United States, 517 U.S. 654, 663 (1996); Cooper v. Harris, Nos. 98 C 1623 & 98 C 1624, 1999 WL 89654, at *2 n.4 (N.D. Ill. Feb. 12, 1999). The Court discussed this discretion above. See Cardenas, 646 F.3d at 1005.

The Court does, however, agree with defendants that good cause has not been shown. "Good cause means a valid reason for the delay, such as the defendant's evading service." Coleman, 290 F.3d at 934. It does not include inadvertence or "half-hearted efforts," Geiger, 850 F.2d at 333, which is not to say inadvertence cannot play some part, Floyd v. United States, 900 F.2d 1045, 1047 (7th Cir. 1990) (An attorney's inadvertence combined with "substantial extenuating factors such as sudden illness or natural disaster" could constitute good cause.). In light of plaintiff's pro se status, his looming prison date, and the tragedy involving his son, it would seem that mere inadvertence was the primary cause here. Pro se status does not excuse plaintiff from following the rules of procedure. McNeil v. United States, 508 U.S. 106, 113 (1993); Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008). And, though reporting to prison must cause considerable anxiety, it is ironic to ...


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