United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Before the Court are Defendant Meyer's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) and the remaining Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). For the following reasons, the Court denies Defendant Meyers' motion to dismiss and Defendants' motion for summary judgment.
MOTION TO DISMISS
Defendant Meyers' argues that she should be dismissed from this action because Plaintiff failed to state a claim against her and/or she was not properly served with summons and the third amended complaint.
Failure to State a Claim
On July 12, 2013, Plaintiff's third amended complaint was screened pursuant to 42 U.S.C. § 1915A. Court's screen prisoner litigation claims under Section 1915A in the same manner as ordinary Federal Rule of Civil Procedure 12(b)(6) motions to dismiss. See Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011). A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. See Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). At that time, the Court found that Plaintiff stated a claim against Defendant Meyers. The court has reviewed the amended complaint, the Court's previous order, and the parties briefs and finds that Plaintiff has sufficiently alleged an individual and official capacity claim against Defendant Meyers. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); see also, Jubeh v. Dart, No. 11 C 3873, 2011 WL 6010267, at *2 (N.D. Ill. Nov. 29, 2011) (Gettleman, J.) (denying Aramark's motion to dismiss based on argument that it was not a state actor) (collecting cases). Accordingly, her motion to dismiss based on a failure to state a claim is denied.
Improper and/or Untimely Service
Defendant Meyer also argues that she should be dismissed from this action because she was not properly served with Plaintiff's third amended complaint.
When a defendant challenges the sufficiency of service, the plaintiff bears the burden to demonstrate that defendant was properly served. Robinson v. Engineering Co. Pension Plan & Trust v. George, 223 F.3d 445, 453 (7th Cir. 2000). If a plaintiff has not properly served a copy of summons and the complaint on the defendant "within 120 days after the filing of the complaint, " the court "shall dismiss the action without prejudice... or direct that service be effectuated within a specified time." Fed.R.Civ.P. 4(m).
As applicable to the instant matter, service may be effected by means allowed under state law, personally delivering summons and the complaint to the plaintiff, leaving a copy of the summons and complaint at the plaintiff's dwelling with a suitable individual, or delivering a copy of the summons and complaint to an authorized agent to receive service of process. Fed.R.Civ.P. 4(e)(1), (2). In addition, service may be made on a corporation by delivering a copy of the summons and complaint on an agent of the corporation who is authorized to receive service of process. Fed.R.Civ.P. 4(h)(1)(B).
Here, the parties do not dispute that service was completed by the U.S. Marshal, because Plaintiff is incarcerated, by leaving a copy of the summons and third amended complaint with the registered agent of Aramark, Defendant Meyers' employer and the food service provider at the Jail at the relevant times of Plaintiff's claims. Because Plaintiff raised a claim against Defendant Meyers in her official capacity and such a claim is, in actuality, a claim against the corporation, service was properly affected.
However, it is undisputed that service was not made until more than 300 days after Plaintiff's third amended complaint was filed. Thus, regardless of whether service was properly made by leaving a copy of the summons and third amended complaint with Aramark's registered agent, service was untimely.
Before dismissing an action due to untimely service, the court must determine whether the plaintiff can establish good cause for failing to timely effect service. Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). If good cause is demonstrated, the court must extend the time for service. Id. Even if good cause is not shown, the court must consider whether a permissive extension of time is warranted. Id. at 341. A valid reason for the delay constitutes good cause. Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 992, 934 (7th Cir. 2002).
Plaintiff has demonstrated good cause in the instant matter. Plaintiff is incarcerated and had to rely on the U.S. Marshal to effect service of the third amended complaint. Thus, the timing of service was not within Plaintiff's control. In addition, the docket reflects multiple attempts by the U.S. Marshal to effect service which was further complicated by Defendant Meyers' no longer working for Aramark.
In light of finding good cause for the delay in serving Defendant Meyers, the Court could grant an extension of time to have her served with the third amended complaint. However, Defendant Meyers has actual notice of the case and access to all the relevant documents in this matter. In the interests of judicial economy, Defendant Meyers' actual notice of the lawsuit, and the fact that having the U.S. Marshal re-serve Defendant Meyers would only extend the time of the litigation only to bring the matter back to the same place in litigation, Defendant Meyers' motion to dismiss under 12(b)(5) is denied. See Moreno-Avalos v. City of Hammond, Ind., Nos. 2:13-CV-347-TLS, 2:13-CV-450-TLS, 2014 WL 3894349, at *3 (N.D. Ind. Aug. 8, 2014) (denying motion to dismiss even if service was improper based on same factors). Accordingly, her motion to dismiss based on improper/lack of service is denied.
The remaining Defendants, Sheriff Dart, J. Bratlien, S. Muller, Phil Gnacinski, Bruce Schroer, Cook County, and Gary Hickerson, seek summary ...