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Moore v. Salinas

United States District Court, N.D. Illinois, Eastern Division

February 19, 2015

D'ARBY MOORE, DOROHN WRIGHT, DESMOND DeBRUE, Plaintiffs,
v.
ALFRED SALINAS, KEITH APPLEQUIST, WILLIAM BULANDA, STEVEN ANKARLO, HANK VEGA, and CITY OF CHICAGO HEIGHTS, Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, Jr., District Judge.

Before the Court is Defendants' motion to dismiss for insufficient process and service of process [17]. For the reasons stated below, the Court denies Defendants' motion.

I. Background

Plaintiffs have filed federal and state law claims against five Chicago Heights police officers stemming from their arrests on April 7, 2012. The complaint alleges excessive force, failure to intervene, and malicious prosecution. It also alleges a Monell claim against the City of Chicago Heights for failure to adequately train its police officers. This case recently was reassigned to this Court from Judge Grady's docket.

Plaintiffs filed their complaint on April 6, 2014, the last day of the two-year statute of limitations governing their 42 U.S.C. § 1983 claims. See Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir. 2008); 735 ILCS § 5/13-202. On June 23, 2014, Judge Grady entered an order [6] setting an initial status hearing on July 16, 2014. Two days before the status hearing, Plaintiffs' attorney, John Greenlees, and an individual named Darlene Cronin, traveled to the Chicago Heights police station to serve Defendants. See [20-2], Cronin Aff. at ¶ 1; [20-2], Greenlees Aff. at ¶ 1. Cronin states that she told the person behind the main desk that she intended to deliver summonses and complaints to Defendants. See Cronin Aff. at ¶ 2. The person behind the desk asked her "if the material was related to Court." Id. Cronin confirmed that the summonses were related to this lawsuit, at which point the person behind the desk told Cronin that "she would send the Court officer out to speak to [her]." Id. A police officer arrived several minutes later, looked at the documents, and told Cronin "that he would make sure the material was delivered to the correct person(s)." Id. at ¶ 4. Defendants failed to appear at consecutive status hearings, prompting the court to set a date to hear Plaintiffs' anticipated motion for default. See [14]. Defendants appeared prior to the hearing date and filed this motion to dismiss.

II. Legal Standard

A plaintiff must ensure that each defendant receives a summons and a copy of the complaint within 120 days of filing a complaint in federal court. Fed.R.Civ.P. 4(m). On a defendant's motion to dismiss for insufficient process under Rule 12(b)(5), the plaintiff bears the burden of showing that it served each defendant effectively. Cardenas v. City of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011). Where a plaintiff shows good cause for its failure to sufficiently serve a defendant, the court must provide an extension. Fed.R.Civ.P. 4(m); Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 382-83 (7th Cir. 1998). Where a plaintiff does not show good cause, a court may provide an extension or dismiss the suit. United States v. McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006).

III. Analysis

Defendants state that they move to dismiss under Rule 12(b)(4) for insufficient process and under Rule 12(b)(5) for insufficient service of process. However, their brief only argues that service of process was insufficient. Accordingly, the only question before the Court is whether to dismiss under Rule 12(b)(5).

A. Sufficiency of Service of Process

Plaintiffs' service was insufficient. Under Rule 4, a party must serve a municipal corporation by "(A) delivering a copy of the summons and complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant." Fed.R.Civ.P. 4(j)(2)(A) & (B). Illinois law provides that a plaintiff may serve a city by leaving a copy with the mayor or city clerk. 735 ILCS 5/2-211. Under Rule 4, a party must serve an individual by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made;" or else by

(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and ...

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