United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Before the Court is Defendants' motion to dismiss  pursuant to Federal Rule of Civil Procedure 12(b)(5). Defendants argue that Plaintiff's complaint should be dismissed with prejudice because Plaintiff failed to serve them in accordance with Federal Rule of Civil Procedure 4(m). For the reasons that follow, Defendants' motion is denied.
I. Procedural and Factual Background
During the events giving rise to this lawsuit, Plaintiff John Batiste, Jr. was an inmate at Cook County Jail. On July 1, 2011, Plaintiff was walking back to his tier from the medical dispensary with a fellow inmate. Compl. at 4. Correctional Officer Tyrone McCullough stopped Plaintiff and ordered him to place his hands on the wall and spread his legs after the two exchanged profanities. See id. at 5. Plaintiff inadvertently removed his left hand from the wall, and Officer McCullough threated to hit Plaintiff "upside [the] head" if he removed his hand again. Id. Plaintiff responded to Officer McCullough with obscenities, and McCullough proceeded to beat Plaintiff on the head with his walkie-talkie radio. Id. Correctional Officer Mark Clark allegedly stood by and watched during the beating. Id.
On November 9, 2012, Plaintiff filed a pro se complaint under 42 U.S.C. § 1983 alleging violations of the Fifth, Eighth, and Fourteenth Amendments. Plaintiff named Cook County, Thomas Dart, "C/O McCullough, " and "C/O Clark" as defendants. Cook County and Thomas Dart were dismissed, but the Court permitted Plaintiff to proceed in forma pauperis against McCullough and Clark. The U.S. Marshals Service was instructed to serve them, but the summonses were returned unexecuted because Plaintiff did not provide the necessary USM-285 form within 30 days. See .
On January 29, 2013, the Court requested that attorney George Grumley, a member of this Court's Trial Bar, represent Plaintiff. Mr. Grumley agreed to do so, consistent with his trial bar obligations. See L.R. 83.11(g); see also Henderson v. Ghosh, 755 F.3d 559, 563, n.1 (7th Cir. 2014). On June 21, 2013, Plaintiff filed a motion  asking the Court to direct the U.S. Marshals Service to serve Defendants, because counsel's attempt to have Defendants waive service was unsuccessful. The Court granted the motion ; subsequently the Court extended the deadline for service until August 15, 2013, pursuant to Federal Rule of Civil Procedure 4(m). See . On October 16, 2013, Defendant Clark's summons was returned unexecuted because additional information was needed for the Cook Country Department of Corrections to accept service for him. See . According to Defendants, Plaintiff's counsel failed to include the first name of Defendant Clark, making it impossible for Cook County to determine the individual to be served. As to Defendant McCullough, a waiver of service was returned, but as it turns out, Cook County waived service on behalf of a John T. McCullough, not Tyrone McCullough (the individual who actually was involved in the alleged events). Defendants maintain that this error occurred because Plaintiff's counsel also failed to indicate the first name of Defendant McCullough. The John T. McCullough who waived service had no involvement in the events at issue, and was subsequently dismissed on motion by Plaintiff. See . Plaintiff's counsel sent waivers of service to the proper defendants, Officers Mark Clark and Tyrone McCullough, on March 24, 2014-more than seven months after the August 15, 2013 deadline set by the Court.
On May 23, 2014, Defendants filed the motion to dismiss at issue here. The Court set a briefing schedule on the motion a few days later and specified that Plaintiff's response brief was due July 1, 2014. Plaintiff's counsel failed to comply with that deadline and filed his response brief (styled as a reply) on September 12, 2014-two and a half months late. In his brief, counsel offers no reason for his tardiness; nor did he request an extension of time for the response brief. The Court construed the notice of motion  that accompanied the brief as a motion for leave to file a response instanter, given that the brief was untimely. As allowed by the Court, Defendants filed a reply in opposition thereafter, in which Defendants argued that the response brief should be disregarded as untimely. Defendants also responded to the brief on the merits of the motion.
II. Legal Standard
Defendants filed their motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. Defendants seek dismissal because Plaintiff did not serve them within 120 days of filing the complaint as required by Rule 4(m). That rule provides in relevant part:
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 failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). As the rule states, the district court is required to extend the deadline for service if a plaintiff shows "good cause" for failing to serve a defendant. See Coleman v. Milwaukee Bd. of School Directors, 290 F.3d 932, 934 (7th Cir. 2002); Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). Although there is no precise test for good cause, the plaintiff must be able to point to a valid reason for the delay in service and demonstrate reasonable diligence in attempting service. Stanley v. Martin, 2013 WL 331267, at *1 (N.D. Ill. Jan. 29, 2013). The plaintiff has the burden of establishing good cause for failing to obtain service. See Panaras, 94 F.3d at 341.
Even if a plaintiff does not establish good cause, however, "a district court must still consider whether a permissive extension of time is warranted, " id., and "may in its discretion grant an extension of time for service, " Troxell v. Fedders of North America, Inc., 160 F.3d 381, 383 (7th Cir. 1998). In determining whether failure to comply with the rules should be excused, the court may take various factors into consideration, including "a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service." Troxell, 160 F.3d at 383. Even if these factors weigh in favor of the plaintiff, the district court is not required to excuse untimely service. However, the Seventh Circuit expects most district judges to take the balance of hardships into account when determining whether to dismiss a complaint for lack of timely service. See Coleman, 290 F.3d at 934. In Coleman, the Court explained:
Where * * * the defendant does not show any actual harm to its ability to defend the suit as a consequence of the delay in service, where indeed it is quite likely that the defendant received actual notice of the suit within a short time after the attempted service, and where moreover dismissal without prejudice has the effect of dismissal with prejudice because the statute of limitations has run since the filing of the suit * * * most district judges probably would exercise lenity and ...