Opinion
Case No. 99 C 5603
April 22, 2002
ORDER
Before the court is defendant Patricia Austin-Keegan's motion to dismiss the complaint for insufficiency of service. Fed.R.Civ.P. 12 (b)(5). For the reasons outlined below, the motion is denied and plaintiff is allowed 45 days from the entry of this order within which to properly serve Austin-Keegan.
I. Background
Robbie Chatman, an African-American woman, filed her pro se complaint in this action on August 27, 1999. The caption and body of the complaint name as defendant only Condell Medical Center ("Condell"). However, in the attached EEOC charge, Chatman alleges that Patricia Austin-Keegan told Chatman that she was being denied training because of a customer complaint against her; Chatman also alleges that the true reason was Chatman's race. Austin-Keegan apparently understood that Chatman intended to sue her because she is included as a defendant in the defendants' first filing in this suit. The defendants' attorney declined to waive service of process, and over a year later they had not been served. On November 30, 2000, the defendants moved to dismiss for, among other things, failure to effect service within 120 days after filing the complaint. Fed.R.Civ.P. 4(m), 12(b)(5). The court denied this motion on August 2, 2001 and instructed Chatman to serve the defendants by August 31, 2001. On Chatman's oral request, this deadline was extended until September 10, 2001.
Actually the EEOC charge refers to "Pat Austin." Ms. Austin has apparently changed her last name since then, although there is some confusion as to whether her name is currently Keegan or Austin-Keegan. The only sworn affidavit in the record referring to the former Ms. Austin used the hyphenated version, so this court follows suit.
Chatman first attempted to serve the defendants on August 29, 2001. A woman came to the Condell offices and called for Austin-Keegan. Austin-Keegan's secretary, Mary Bixby (who was also secretary for Eugene Pritchard, the CEO of Condell), informed the woman that Austin-Keegan was not available to receive a delivery. The caller hung up. Within a few minutes, Bixby answered a call for Pritchard from the same woman. After Bixby told the woman that Pritchard was not in his office, the woman said that there was an envelope for Pritchard in the lobby. Bixby offered to pick up the envelope; the woman accepted; and the transfer was made. The woman did not identify herself or tell Bixby what was in the envelope.
Plaintiff's second attempt, on September 7, 2001, met a similar fate. This time a deputy sheriff hired by Chatman arrived at the Condell offices and asked to see Austin-Keegan. Bixby informed the deputy that Austin-Keegan was away from the office on vacation. The deputy stated that he had documents to be delivered to Austin-Keegan, but that he could leave the documents with Bixby. Bixby accepted the documents. Bixby avers that Austin-Keegan has never authorized her to accept service of process on her behalf and that Bixby has never attempted to prevent service of process upon either Condell or Austin-Keegan.
Both defendants moved to dismiss the complaint for insufficient service of process on September 18, 2001. In their reply brief, the defendants voluntarily withdrew their motion with respect to Condell. Thus, what remains to be decided is the motion to dismiss the complaint as to Austin-Keegan.
II. Analysis
When the sufficiency of service is challenged, the plaintiff bears the burden of making a prima facie showing that service was properly effected. Trotter v. Oppenheimer Co., No. 96 C 1238, 1997 U.S. Dist. LEXIS 2540, at *2 (ND. Ill. Mar. 4, 1997). In considering such a challenge, the court may receive evidence introduced by the parties. Id. Where the plaintiff fails to make the required showing of sufficient service, the court nonetheless "shall extend the time for service for an appropriate period" if the plaintiff shows good cause for the failure to effect proper service. Fed.R.Civ.P. 4(m); Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 339 (7th Cir. 1996). "[E]ven if there is no good cause shown," the court in its discretion may allow the plaintiff additional time. Henderson v. United States, 517 U.S. 654, 658 n. 5 (1996) (quoting Fed.R.Civ.P. 4(m) Advisory Committee Notes); accord Panaras, 94 F.3d at 340-41. "Service generally will be quashed and the action preserved in those cases in which there is a reasonable prospect that plaintiff ultimately will be able to serve defendant properly." 5A Charles Alan Wright Arthur R. Miller, Federal Practice Procedure § 1354, at 289 (2d ed. 1990).
A. Sufficiency of Service
Service of process upon an individual is governed by Federal Rule of Civil Procedure 4(e):
Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in any judicial district of the United States:
(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
Fed.R.Civ.P. 4(e). Illinois law provides, in relevant part, that service of summons upon an individual shall be made "by leaving a copy of the summons with the defendant personally." 735 ILCS 5/2-203(a)(1).
It is undisputed that Chatman did not personally serve Austin-Keegan or serve process on her abode, so the critical question is whether Bixby was "an agent authorized by appointment or by law to receive service of process" for Austin-Keegan. Fed.R.Civ.P. 4(e)(2); see also Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d 297, 301-02 (7th Cir. 1991) (stating that neither actual notice nor "substantial compliance," without more, is sufficient to satisfy the requirements of Rule 4). Chatman asserts that Bixby, who served as secretary to both Austin-Keegan and Pritchard, "accepted service on their behalf" and that Bixby acted as "a proxy (to accept)" service. (Resp. ¶¶ 4, 9.) In an affidavit attached to Austin-Keegan's reply, Bixby avers that she is not and has never been an agent authorized to accept service of process on Austin-Keegan's behalf.
The basis for Chatman's belief that Bixby was so authorized is uncertain. One might infer that Chatman intends to rely on the principle of apparent authority, whereby the actions or representations of a principal reasonably lead a third party to believe that an agent is authorized to act on the principal's behalf. Whether apparent authority can suffice to show authorization to accept service under Rule 4 is an unsettled question. Compare Select Creations v. Paliafito Am., 830 F. Supp. 1223, 1238 (E.D. Wis. 1993) ("[I]t is relatively certain that apparent authority is insufficient for the service or acceptance of process."), with Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 n. 1 (9th Cir. 1988) (noting that "a recipient of process need not even be an employee of a company to be its managing agent, as long as the person demonstrates apparent authority"). See generally Schultz v. Schultz, 436 F.2d 635, 637 (7th Cir. 1971) (describing as "dubious" the "assumption that such authority may be implied in some situations").
In any event, Chatman fails to show apparent authority. She points to no action or representation by Austin-Keegan beyond simply employing Bixby as her secretary. This is not enough. See 4A Wright Miller, supra, § 1097, at 537-38 (3d ed. 2002) (stating that a secretary "probably will not be deemed an agent appointed to receive process absent a factual basis for believing that an appointment of that type has taken place"); see also Pytlik v. Prof'l Res. Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989) ("An agent's authority to act cannot be established solely from the agent's actions; the authority must be established by an act of the principal."). Neither do the circumstances support the conclusion that Bixby had express or implied actual authority. See United States v. Marple Cmty. Record, Inc., 335 F. Supp. 95, 102 (E.D. Pa. 1971) ("Obviously, something more than mere acceptance must be shown to demonstrate an agency relationship for [the purpose of accepting service].")
In sum, Chatman has failed to make a prima facie showing of sufficient service.
B. Good Cause
Several factors convince this court that Chatman has shown good cause for her failure to effect property service.
Intentional efforts by the defendant to avoid service of process would obviously support a finding of good cause. Chatman suggests that Austin-Keegan used Bixby as a buffer to avoid personal service. Although Bixby does not explain why Austin-Keegan was "not available" on August 29, 2001, Bixby flatly denies that she ever attempted to prevent service of process on Austin-Keegan. In light of this direct denial, Chatman's conclusory allegations to the contrary are not sufficient, standing alone, to establish a prima facie showing of good cause.
Nonetheless, Chatman's good faith efforts to effect service, her pro se status, and the absence of any prejudice to the defendant support a finding of good cause. The Seventh Circuit has explained that "a plaintiffs attempts at service need be 'at the very least . . . accompanied by some showing of reasonable diligence' before good cause must be found." Bachenski v. Malnati, 11 F.3d 1371, 1377 (7th Cir. 1993) (quoting Tso v. Delaney, 969 F.2d 373, 377 (7th Cir. 1992)). Here Chatman tried twice during regular business hours to personally serve Austin-Keegan at her place of employment. Chatman even employed a professional process server, a deputy sheriff of Lake County, to make the second attempt. To be sure, her attempts at service came long after filing, but they were within the time period this court had allowed her to effect service. Although one might require more from a party represented by counsel, Chatman has shown reasonable diligence for a pro se plaintiff See Poulakis v. Amtrk, 139 F.R.D. 107, 110 (N.D. Ill. 1991) (affording pro se plaintiff "a certain degree of leniency" in this context). The sockdolager is Austin-Keegan's failure to allege any sort of prejudice. See Floyd v. United States, 900 F.2d 1045, 1049 (7th Cir. 1990) ("Certainly, when a plaintiff has offered an explanation for noncompliance with the rule which could support a finding of 'good cause,' the absence of prejudice to the defendant is a factor that ought to be considered in assessing whether the explanation offered justifies relief.").
A closely analogous case is Poulakis v. Amtrak, 139 F.R.D. at 107. There the pro se plaintiff claimed that "he had been informed by an employee of the clerk's office that a return receipt would serve as proof of service by United States mail." Id. at 108. The court held that the plaintiff had demonstrated good cause for his failure to effect sufficient service, relying on the plaintiff showing reasonable diligence (by traveling to the courthouse to inquire in person as to the requirements for service of process), the plaintiffs pro se status, and the defendants' failure to allege prejudice of any kind. See id. at 108-09. The same three considerations apply to the case at bar. While there is no evidence that Chatman came to the courthouse to figure out how to properly effect service, she took the even more reasonable step of hiring a professional process server. As did the court in Poulakis, this court finds good cause for the plaintiffs failure to properly effect service.
Even if this court did not find good cause, it would nonetheless exercise its discretion to deny the motion to dismiss and to give Chatman additional time to effect service for the reasons described in the text, as well as the absence of any perceived obstacle to eventual success in serving process. See 5A Wright Miller, supra, § 1354, at 289.
C. Failure to Name Austin-Keegan in the Summons and Complaint
The defendants argue that the process served was insufficient because the summons and complaint fail to name Austin-Keegan as a defendant. Rule 4(a) states that the summons shall, among other things, "identify . . . the defendant" and "be directed to the defendant." The summons served upon Condell does not identify Austin-Keegan and is directed solely to Condell. This summons would therefore be insufficient as to Austin-Keegan. Chatman will have to obtain a new summons from the clerk of this court to serve upon Austin-Keegan. The defendants' objection to the complaint is less well-founded. It is true that Austin-Keegan is not mentioned in the caption or body of the complaint, but she is mentioned throughout the attached materials. The pleadings of a pro se plaintiff are to be liberally construed. Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996). A summons directed to Austin-Keegan as a defendant together with the complaint will clearly put her on notice that the claims described in the complaint are being asserted against her. Indeed, the record strongly suggests that Austin-Keegan has been well-aware of the fact that Chatman is suing her in this action. Penalizing Chatman at the service stage for not including Austin-Keegan in the caption or body of the complaint would be to use Rule 4 as an "instrument of oppression." Floyd, 900 F.2d at 1049. After she has been served, Austin-Keegan an challenge the sufficiency of the complaint. (Of course, Chatman is free to amend her complaint once as a matter of course because no responsive pleading has yet been filed. Fed.R.Civ.P. 15 (a).)
III. Conclusion
For the reasons outlined above, the court denies the defendants' motion to dismiss for failure to effect proper service, quashes Chatman's prior attempts to effect service on Austin-Keegan, and allows Chatman 45 days from the entry of this order within which to effect proper service on Austin-Keegan under Fed.R.Civ.P. 4.