United States District Court, N.D. Indiana
ANTHONY N. PORRAS, PALOMA PORRAS, Plaintiffs,
DORIN TOMACU, ADRIAN CHITANU, IMPEL UNION, INC., DRIVE LINE, INC., TOMY FREIGHT, INC., Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Plaintiffs, Anthony and Paloma Porras, sued five Defendants
in state court for personal injuries and loss of consortium
arising out of a motor vehicle crash that occurred on May 9,
2016, in Gary, Indiana. The matter was removed to federal
court on the basis of diversity jurisdiction. On May 23,
2018, Defendants Adrian Chitanu, Drive Line, Inc., and Tomy
Freight, Inc., who had been served with the Complaint prior
to its removal to federal court, filed their separate Answers
to the Complaint. On May 23, 2018, Defendants Dorin Tomacu
and Impel Union, Inc., filed a Motion for Extension of Time
to Answer or Otherwise Plead to Plaintiff's Complaint at
Law Pursuant to F.RC.P. 81 [ECF No. 7]. These Defendants
asserted that they had not waived service, but to comply with
Rule 81 and N.D. Ind. Local Rule 83-8(c), made their request
“for an extension of time to answer or otherwise plead
so that they can advise the Court that service has not been
effectuated, and to reserve their right to assert a defense
of ‘insufficient service of process' under F.R.C.P.
12(b)(5) following the expiration of the 90 day time period
stated in F.R.C.P. 4(m).” (Mot. ¶ 12.)
matter is now before the Court on the Motion of Defendant
Tomacu and Impel Union, Inc., to Dismiss Plaintiff's
Complaint at Law [ECF No. 20]. The Defendants argue that
dismissal of the Complaint against them is warranted pursuant
to Federal Rule of Civil Procedure 12(b)(5) because the
Plaintiff did not complete service within 90 days after
filing the Complaint, as contemplated by Rule 4(m), or
request waiver of service.
response, the Plaintiffs rely on a conversation between their
counsel and counsel for the Defendants regarding the unserved
Defendants, which was had in connection with the parties July
25, 2018, or August 21, 2018, planning meeting. The
Plaintiff's counsel asserts that,
it was represented by counsel for the defendants that the
proper corporate defendant had been served and it was
Plaintiff's [sic] counsel's belie[f] based upon that
statement that the unserved defendants were unrelated to this
case and that the proper defendants were served. Counsel for
the plaintiffs mistakenly understood this to mean that the
driver and his DOT employer were properly served.
(Resp. ¶ 5.) That is, counsel mistakenly believed that
Adrian Chitanu, a party he had successfully served, was the
driver of the vehicle that crashed into the Plaintiff's
vehicle. He further contends that discovery has progressed
“under the assumption that the proper parties were
served, and issues closed.” (Id. ¶ 6.)
Not until after receiving the Defendant's Motion to
Dismiss did the Plaintiffs' counsel research again who
was driving the vehicle, and discover that the driver,
Defendant Tomacu, was not successfully served with the
summons. The Plaintiffs submit that written discovery served
on the Defendants is reasonably calculated to reveal
Tomacu's current contact information, which would permit
the Plaintiffs to serve Tomacu with a request to waive
service of process. The Plaintiffs note that that the
Defendants will not be prejudiced by an extension of time for
service of process because they have, at all times, been
represented by counsel hired by the Defendants' insurer.
Defendants' Motion to Dismiss is predicated on the
service requirements of Rule 4, particularly the time
If a defendant is not served within 90 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). Where service has not been obtained in
a timely fashion, such as in this case, it is the
plaintiff's burden to demonstrate good cause for this
failure. Panaras v. Liquid Carbonic Indus. Corp., 94
F.3d 338, 341 (7th Cir. 1996) (citing Geiger v.
Allen, 850 F.2d 330, 333 (7th Cir. 1988)). If the
plaintiff meets this burden and demonstrates good cause for
the untimely service, the court must provide the plaintiff
with an extension of time. Troxell v. Fedders of N. Am.,
Inc., 160 F.3d 381, 382-83 (7th Cir. 1998). Good cause
exists if the plaintiff can point to a “valid
reason” for the delay in service. Coleman v.
Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir.
2002) (offering the defendant's evasion of service as an
example of a valid reason). Although there is no precise test
for good cause, the plaintiff must show, at a minimum,
“reasonable diligence” in his or her efforts to
serve the defendant. Bachenski v. Malnati, 11 F.3d
1371, 1377 (7th Cir. 1993) (citing Tso v. Delaney,
969 F.2d 373, 377 (7th Cir. 1992)).
the Court finds that counsel's erroneous assumptions
about which Defendant was the driver of the
vehicle-assumptions that were contradicted by the Answers to
the Complaint filed by three of the other Defendants-cannot
be considered good cause. However, that is not the end of the
inquiry, for even if a court determines that good cause for
plaintiff's failure has not been shown, “a district
court must still consider whether a permissive extension of
time is warranted.” under the facts of the particular
case. Panaras, 94 F.3d at 341. The choice, when good
cause has not been shown, is “between dismissing the
suit and giving the plaintiff more time” United
States v. McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006).
When making this determination, the court considers a number
of factors to balance the hardships to both parties.
Coleman, 290 F.3d at 934 (considering the actual
harm to the defendant's ability to defend and the effect
of dismissal in light of an expired statute of limitations);
Panaras, 94 F.3d at 341; see also Fed. R.
Civ. P. 4(m), Advisory Committee Note, 1993 Amendments
(“Relief may be justified, for example, if the
applicable statute of limitations would bar the refiled
action, or if the defendant is evading service or conceals a
defect in attempted service.”).
the balance of the effects of the various factors upon the
parties convinces the Court that it should exercise lenity
and allow late service. First, the Plaintiffs'
misunderstanding appears to have been a good faith one, and
the Defendants have not shown any actual harm to their
ability to defend the suit. Although the Court acknowledges
that there is no evidence that the unserved Defendants evaded
service, it is also not clear that they have been denied
actual notice of the lawsuit. An extension would not create
any recognizable prejudice to the Court or third parties. On
the other hand, because the Plaintiffs' claims would be
effectively dismissed with prejudice due to the running of
the two-year statute of limitations on their personal injury
claims, the Court finds, in its discretion, that a 30-day
extension of time to properly serve Impel Union, Inc., and
Dorin Tomacu is warranted in this case.
reasons stated above, the Court DENIES the Motion of
Defendant Tomacu and Impel Union, Inc., to Dismiss
Plaintiff's Complaint at Law [ECF No. 20]. The Plaintiffs
are granted until 30 days after issuance of this Opinion and
Order to ...