United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge.
Presently before us are Plaintiff Kim Van Pelt's motion for default judgment (Dkt. No. 15) and Defendants' partial motion to dismiss (Dkt. No. 22). For the reasons discussed below, we deny Plaintiff's motion and grant Defendants' motion. Plaintiff's discrimination claim against Roosevelt University, based on her allegedly unlawful discharge, remains pending.
Plaintiff, a pro se litigant, initially sought to file her complaint on May 28, 2013. We granted her petition to proceed in forma pauperis with the lawsuit on August 28, 2013, at which time her complaint became effective. (Dkt. Nos. 10-12.) On September 9, 2013, the U.S. Marshals filed the executed service of summons for Defendants Roosevelt University and Sheila Coffin. (Dkt. Nos. 13-14.) The executed, returned summons indicate that the U.S. Marshals served process on Cheryl Gouldsby, assistant to the president of Roosevelt University. ( Id. ) On October 11, 2013, Plaintiff filed the present motion for judgment of default because neither Roosevelt University, nor Coffin, had answered her complaint. (Pl.'s Mot. at 1.)
As to the substance of the complaint, Plaintiff is a former employee of Roosevelt University and alleges that Defendants terminated her and retaliated against her because of her disability (multiple sclerosis) in violation of the Americans with Disabilities Act ("ADA"). (Compl. (Dkt. No. 12) ¶¶ 3-5, 9, 12.) She alleges that Coffin increased her workload but did not afford her more time to accomplish her work. ( Id. ¶ 13.) Plaintiff claims that when she complained to human resources about her workload, she was told that everyone had to do more work. ( Id. ) In her Charge of Discrimination, filed with the Illinois Department of Human Rights ("IDHR") on March 8, 2012, she alleges that Coffin harassed her by making negative comments about her to staff and excluding her from meetings. (IDHR Charge (Dkt. No. 6) at 2 (cross-filed with the EEOC).) She states further that she was discharged by Coffin on February 24, 2012, for performance issues. ( Id. ) In her complaint, Plaintiff requests a jury trial, $250, 000 in damages, and any other appropriate relief. (Compl. ¶¶ 15-16.)
I. MOTION FOR DEFAULT
We begin with Plaintiff's motion for default, which is governed in part by Federal Rule of Civil Procedure 55. Pursuant to Rule 55, the clerk of the court must enter an order of default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend" the action. Fed.R.Civ.P. 55(a). After a default has been entered, either the clerk or the court shall enter a default judgment in favor of the plaintiff for the specific amount of damages sought and substantiated by the plaintiff. Fed.R.Civ.P. 55(b) (authorizing the court to conduct hearings as needed to determine damages and enter judgment). Rule 55 thus sets out a two-step process-an entry of default, followed by a judgment in a certain amount-for the entry of final judgment against a defaulting defendant.
In this case, we also consider whether Plaintiff's service of summons and the complaint on Defendants complied with Rule 4. After all, "it is clear that no default judgment can be predicated upon [fault y] service." Dana Mills, Inc. v. Brookline Fabrics, Inc., 94 F.R.D. 297, 299 (N.D. Ill. 1982). Pursuant to Rule 4, service on a corporate defendant, such as Roosevelt University, can be made by satisfying the Illinois state rules for service of an individual, or by "delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process." Fed.R.Civ.P. 4(h). Service on an individual defendant, such as Coffin, is effective if the summons and complaint are delivered to the individual personally, left at the individual's home "with someone of suitable age and discretion who resides there, " delivered to an authorized agent, or otherwise delivered in compliance with the Illinois state service rules. Fed.R.Civ.P. 4(e).
As Defendants' contend, (Defs.' DJ Resp. at 3-4), Plaintiff's service of her lawsuit, as executed by the U.S. Marshals, did not satisfy the requirements of Rule 4. Ms. Coffin was not served individually or otherwise as permitted by Rule 4(e). Service of Defendants through Gouldsby was inadequate because she is not the type of agent authorized to accept service of process for either Defendant as described in Rule 4.
Defendants further argue that they construed Plaintiff's attempted service as requesting a waiver. According to Defendants, the summons packet delivered to Gouldsby included Waiver of Service of Summons forms. Under Rule 4(d), a defendant who receives notice of a lawsuit and a request for waiver of service "has a duty to avoid unnecessary costs of serving the summons." Fed.R.Civ.P. 4(d)(2). In that event, the defendant may return the waiver of formal service in exchange for additional time to answer the complaint. Id. at 4(d)(3) (providing that a defendant who waives service will have 60 days to answer, instead of the normal 21 days). Counsel for Defendants executed a waiver for each Defendant on October 7, 2013, thus allowing them through approximately November 9, 2013 to answer or otherwise plead. (Defs.' DJ Resp., Ex. 2 (executed waivers).) As a result, at the time that Plaintiff filed her motion for default, Defendants believed their answer was not yet due. For her part, Plaintiff states that she has no knowledge about the waivers allegedly included in the package and disputes Defendants' execution thereof. (Pl.'s DJ Reply at 1-2.) She argues that an entry of default is warranted because Defendants admit they received the copies through Gouldsby and because they should have cleared up any confusion about the waiver with her instead of failing to answer. ( Id. at 1-3.)
All in all, we conclude that Plaintiff's motion lacks merit. Although Plaintiff doubts Defendants' sincerity, their confusion about the waiver is justified. The issuance of waivers is common, and Defendants had no apparent reason to suspect that Plaintiff would question their decision to waive service, especially service of questionable efficacy. Regardless, Defendants appeared within days of receiving Plaintiff's motion and are actively defending the litigation. They partially answered the complaint and filed the pending motion to dismiss on October 29, 2013. Under the circumstances, we decline to exercise our discretion to enter a default. See 10A Wright & Miller, Fed. Prac. & Proc. § 2685 (3d ed. 2013) (explaining that the judge "is required to exercise sound discretion in determining whether" default under Rule 55(c)(2) should be entered); see also Macri v. Yamauchi, 01 C 50168, 2002 WL 390223, at *2 (N.D. Ill. Mar. 11, 2002) (holding that a default would be pointless in light of the procedural history and noting that "even when the defendant is in default, it is within the court's discretion whether to enter" the order).
II. MOTION TO DISMISS
We turn then to Defendants' motion to dismiss. Defendants argue that Plaintiff's claims against the individual defendant, Coffin, must be dismissed because Coffin is not an "employer" under the ADA. They also contend that Plaintiff's retaliation allegation must fail because she did not include it in her IDHR charge and, moreover, because it fails to state ...