United States District Court, N.D. Indiana, LaFayette Division
RUTH A. PETERSON, Plaintiff,
IU WHITE HEALTH, Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter is before the Court on the Defendant's, IU White
Health, Motion to Dismiss Plaintiff's Amended Complaint
or, in the Alternative, for the Docket to Reflect that
Defendant is not Required to Respond to Plaintiff's
Amended Complaint Until Properly Served [ECF No. 11].
Plaintiff, Ruth A. Peterson, filed a Complaint [ECF No. 1] on
December 8, 2017 and an Amended Complaint [ECF No. 4] on May
7, 2018. The Plaintiff alleges that the Defendant
discriminated against her due to her gender and age.
(Pl.'s Am. Compl. at 2-3.) The Plaintiff also appears to
allege that there was some interference with her unemployment
rights and seeks various forms of declaratory relief.
(Id.) On June 4, 2018, the Defendant filed a Motion
to Dismiss [ECF No. 11] alleging that the Plaintiff's
Amended Complaint should be dismissed for improper service
pursuant to Federal Rule of Civil Procedure Rule 4 and the
Court's resultant lack of personal jurisdiction. The
Court understands that the Defendant's Motion to Dismiss
is brought pursuant to Federal Rules of Civil Procedure
12(b)(2) and 12(b)(5). The Plaintiff filed a response [ECF
No. 13] and the Defendant filed a reply [ECF No. 14]. This
matter is now ripe for review.
of process serves a dual purpose: it gives a court
jurisdiction over the person of the defendant as well as
notifying him of the lawsuit. Milliken v. Meyer, 311
U.S. 457 (1940); see, also, Mid-Continent Wood Prods.,
Inc. v. Harris, 936 F.2d 297, 301 (7th Cir. 1991)
(“Valid service of process is necessary in order to
assert personal jurisdiction over a defendant.”). A
summons must be served with a copy of a plaintiff's
complaint. Fed.R.Civ.P. 4(c)(1); Cardenas v. City of
Chicago, 646 F.3d 1001, 1004 (7th Cir. 2011)
(“After commencing a federal suit, the plaintiff must
ensure that each defendant receives a summons and a copy of
the complaint against it.”). Pursuant to Rule 4(c)(1),
a plaintiff is responsible for having the summons and
complaint served within the time allowed by Rule 4(m), which
provides a 120-day time limit from the date a complaint is
filed to properly serve the summons and complaint.
defendant may enforce personal jurisdiction and service of
process requirements through a pretrial motion to dismiss.
Fed.R.Civ.P. 12(b)(2); (b)(5). Motions made under Rule
12(b)(5) challenging service of process have the same
standard of review as Rule 12(b)(2) motions.
Mid-Continent Wood Prods., Inc., 936 F.2d at 301.
The Plaintiff, as the party seeking to invoke federal
jurisdiction, bears the burden to establish the existence of
personal jurisdiction. Purdue Research Found. v.
Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 & n.11
(7th Cir. 2003). When the service of process requirement is
not satisfied, the court has no jurisdiction over a defendant
even if the defendant knows of the lawsuit against him.
Mid-Continent Wood Prods., Inc., 936 F.2d at 301.
“If, on its own or on the defendant's motion, the
district court finds that the plaintiff has not met that
burden and lacks good cause for not perfecting service, the
district court must either dismiss the suit or specify a time
within which the plaintiff must serve the defendant.
Fed.R.Civ.P. 4(m).” Cardenas, 646 F.3d at
Plaintiff filed her Amended Complaint on May 7, 2018, which
meant that she had to serve the Defendant by September 4,
2018. The Defendant argues that the Plaintiff failed to
comply with Federal Rule of Civil Procedure Rule 4 and it is
not obligated to respond to the Plaintiff's Amended
Complaint. The Defendant states that the Plaintiff sent a
summons to the Defendant's “Human Resource Manager,
” who was not an officer designated to receive service,
and failed to attach a copy of her Amended Complaint in
violation of Rule 4. (Def.'s Mot. at 2.) The Defendant
states that it informed the Plaintiff on May 22, 2018 through
a letter that requested the Plaintiff cure this deficiency.
(Id.) On June 4, 2018, the Defendant's Human
Resource Manager received a “Summons in a Civil
Action” and “Amended Civil Complaint” in
her internal mailbox. (Id. at 3.) The Defendant
argues that the Human Resource Manager is not an officer
designated to receive service. Thus, despite the
Plaintiff's efforts, it has not been properly served with
the Plaintiff's Amended Complaint and the Court thus
lacks personal jurisdiction over the Defendant. (Id.
at 3-4.) Therefore, the Defendant requests that the Court
dismiss the Plaintiff's Amended Complaint, or in the
alternative, require the Plaintiff to properly serve it with
the Amended Complaint
Plaintiff's response reiterated several of the
allegations listed in her Amended Complaint. In response to
the Defendant's claim regarding lack of proper service,
the Plaintiff stated that she was unaware that the
Defendant's Human Resource Manager was not authorized to
accept proof of service and that she had, in fact, received
proof of service signed. (Def.'s Resp. at 2.) The
Plaintiff did file a “Summons Returned Executed”
[ECF No. 8] that is a Proof of Service with an attached USPS
Certified Mail Return Receipt Form 3811 that is undated, with
an unidentified signature made on behalf of the IU White
Health Human Resources Manager. In the Defendant's reply,
the Defendant argued that none of the information provided
demonstrated proper service upon the Defendant and the Court
should dismiss the Amended Complaint.
a defendant has challenged the sufficiency of service of
process with a motion to dismiss under Fed.R.Civ.P. 12(b)(5),
the burden is upon the plaintiff to make a prima facie
showing that there was proper service.” Iosello v.
Lexington Law Firm, No. 03-C-987, 2003 WL 21920237, at
*2 (N.D. Ill. Aug.12, 2003). The Plaintiff has failed to
rebut the Defendant's argument that the Plaintiff failed
to properly serve an officer, managing or general agent, or
agent authorized by appointment to receive service of process
for the Defendant. Fed.R.Civ.P. 4(h).
Plaintiff has failed to properly serve the Defendant, the
Court must now consider dismissal pursuant to Rule 4(m). If a
party fails to give notice of the complaint within 120 days
of filing, Rule 4(m) requires that the Court either dismiss
the complaint without prejudice or order that service be made
within a specified time. Geiger v. Allen, 850 F.2d
330, 331 (7th Cir. 1988). If a plaintiff shows good cause, a
legitimate reason for a delay in process, the Court shall
extend the time for service for an appropriate period.
Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d
932, 934 (7th Cir. 2002). Whether good cause exists is fact
sensitive and “entrusted to the district court's
discretion.” Troxell v. Fedders of N. Am.
Inc., 160 F.3d 381, 383 (7th Cir. 1998). The Court must
balance the relative hardships of the parties and can look to
several factors including: “(1) whether the expiration
of a statute of limitations during the pending action would
prevent refiling, (2) whether the defendant evaded service,
(3) whether the defendant's ability to defend would be
prejudiced by an extension, (4) whether the defendant had
actual notice of the lawsuit, and (5) whether the defendant
was eventually served.” Cardenas, 646 F.3d at
Plaintiff has not indicated that good cause exists to enlarge
the 120-day period. The Defendant did not evade service,
rather, it alerted the Plaintiff to its procedural
deficiencies. Still, the Defendant has not been properly
served. The Plaintiff's pro se status does not excuse
non-compliance with procedural rules. McMasters v. United
States,260 F.3d 814, 818 (7th Cir.2001). Accordingly,
the Court lacks personal ...