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DOUGLAS E. HURST, Plaintiff-Appellant, v. NAMES UNKNOWN, Defendants-Appellees.
UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
July 31, 2002, Decided
NOTICE:
RULES OF THE SEVENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Douglas Hurst appeals from the district court's dismissal of his
complaint for failure to effect timely service upon defendants under Federal
Rule of Civil Procedure 4. Hurst admits that he failed to serve the defendants
within the prescribed time limit, but argues that the district court abused its
discretion when it declined to give him additional time to serve the
defendants. For the reasons that follow, we reverse and remand.
In June 1999, two police
officers from the Champaign Police Department arrested Douglas Hurst, charging
him with disorderly conduct. On June 21, 2001, one day before the applicable
statute of limitations had lapsed, Hurst filed a complaint in federal district
court alleging that the two unnamed police officers arrested him without
probable cause and violated his constitutional rights. Three months later the
district court issued a minute order warning Hurst that Federal Rule of Civil
Procedure 4(m) required him to serve the defendants with a summons and
complaint within 120 days of the filing of the complaint, or else his lawsuit
would be subject to dismissal. When Hurst failed to provide [*896] the clerk
with a summons by the appropriate deadline, the district court dismissed the
case without prejudice.
Ten
days later Hurst filed a motion to reconsider under Federal Rule of Civil
Procedure 59, stating that at 10:00 p.m. on October 19, 2001 -- the 120th day
after Hurst filed his complaint -- defendants were properly served with the
complaint and a request for waiver of service at their place of employment. In
the motion Hurst also informed the court that the running of the statute of
limitations would prevent his refiling the case. The district court, in
response, advised Hurst that he must file the waiver of service before it would
consider his motion to reconsider. See Fed. R. Civ. P. 4(d)(4). Two months
passed and Hurst failed to produce the waiver, so in January 2002, the district
court ordered him to file within 14 days some proof that the defendants had
received service of process or else the court would deny his motion to
reconsider. Three days later Hurst filed an affidavit entitled "Proof of
Service" attesting that he hand-delivered "to the woman manning the
front desk at the Champaign Police Department" the complaint and a request
for waiver of service to Officers J. Cherry and B. Thomas, the previously
unnamed defendants. The next day the district court ordered defendants to show
cause why they failed to either appear or file a responsive pleading in the case.
On January 18, officers Cherry
and Thomas filed a formal response stating that they were not served with
process and that Hurst's attempts to serve process failed to satisfy the
requirements set forth in Federal Rule of Civil Procedure 4(c) or 4(e).
Moreover, they asserted, Hurst lacked good cause for failing to timely serve
them with process because almost a year before filing his complaint Hurst
obtained copies of his arrest records, which disclosed the arresting officers'
names and badge numbers. At a hearing on that same day, the district court
permitted Hurst to respond orally to these allegations. Hurst explained that it
never occurred to him to look at his arrest records to find the officers' names, and that his
attempt to serve the defendants had been in good faith because he had thought
that he was complying with the service requirements. After hearing testimony,
the court denied Hurst's motion to reconsider and upheld the order dismissing
the case "for violations of the provisions of Federal Rule of Civil
Procedure 4."
On
February 6, 2002 Hurst moved for reconsideration of the January 18 order of
dismissal, but because Hurst filed the motion more than 10 days after entry of
the judgment, the motion was denied. See Fed. R. Civ. P. 59(e). Hurst then
filed a timely notice of appeal on February 19, 2002. n1
Rule 4(m) allows a district
court to dismiss a case without prejudice if a plaintiff fails to perfect
service of the summons and complaint upon a defendant within 120 days after
filing the complaint, if the plaintiff cannot show good cause for the failure,
and if the court provides the plaintiff with notice that the case faces
dismissal. See Fed. R. Civ. P. 4(m). The plaintiff bears the burden of
showing good cause, see Geiger v.
Allen, 850 F.2d 330, 333 (7th Cir. 1988), which when adequately demonstrated
obligates the district court to extend the time for service, see Panaras v. Liquid Carbonic Indus. Corp.,
94 F.3d 338, 340 (7th Cir. 1996). Finally, absent a showing of [*897] good
cause, a district must still consider whether it will exercise its discretion
to grant the plaintiff a time extension in which to effect service. See Fed. R.
Civ. P. 4(m); Henderson v. United States, 517 U.S. 654, 662, 134 L. Ed. 2d 880,
116 S. Ct. 1638 (1996); Panaras, 94 F.3d at 341.
Hurst admits that he failed to
accomplish service within the 120-day period established in Rule 4(m). On
appeal he advances two principle arguments for reversing the dismissal of his
case. First, Hurst contends that the district court failed to provide him with
notice that his case faced imminent dismissal. But this argument is frivolous
because the record clearly shows that the district court properly provided
Hurst with notice on September 12, 2001, more than one month before the
expiration of the 120-day time-limit for service. Second, Hurst argues that the
district court abused its discretion because it failed to adequately articulate
its reasons for dismissing the case. More specifically, the district
court failed to indicate that it considered either whether good cause for the
delay in timely service existed or whether Hurst deserved a permissive time
extension.
Appellate review of the district
court's decision is deferential, and if a district court "properly sets
out the relevant law and makes no factual findings that are clearly erroneous,
an abuse of discretion exists only if its decision was arbitrary and
unreasonable." Troxell v. Fedders of N. Am., Inc., 160 F.3d 381,
383 (7th Cir. 1998). Ordinarily
this is a difficult standard to overcome, but here the district court gave only
scant reasoning for dismissing Hurst's case:
"The case is dismissed for violation of the provisions of Federal Rule of
Civil Procedure 4." Not only did the district court fail to invoke
subsection 4(m), but it also failed to explicitly determine whether or not
Hurst demonstrated good cause. Moreover, assuming that Hurst failed to show
good cause, the record before us does not reflect whether the district court
realized that it could nevertheless exercise its discretion to grant Hurst an
extension of time to perfect service. See
Henderson, 517 U.S. at 662-63 (noting that the 1993 amendments to Rule
4(m) grant courts discretion to enlarge the 120-day period even when plaintiff
fails to show good cause). The district court's failure to "clearly
consider, in the absence of good cause, whether a permissive extension of time
for service was warranted" forces us to conclude that the district court
abused its discretion in summarily dismissing Hurst's case. Panaras, 94 F.3d
at. 341.
On remand the district court
should consider whether Hurst met his burden of establishing good cause for
failing to effect service, and, if not, whether a permissive extension of time
is warranted. Some factors the district court may want to consider when
deciding how to exercise its discretion include whether the applicable statute
of limitations would bar refiling the case and whether the defendant evaded
service or concealed a defect in attempted service. See Fed. R. Civ. P. 4(m),
Advisory Committee Note, 1993 Amendments; Panaras, 94 F.3d at 341. Other
relevant factors include prejudice to the defendant, and whether defendants
received actual notice of the lawsuit within a short time after the attempted
service. Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir.
2002).
For
the foregoing reasons the judgment of the district court is REVERSED. We REMAND
to the district judge for reconsideration in light of this order.
FOOTNOTE:
n1 Although February 19 was
actually 32 days after entry of the final judgment, the notice of appeal was
nevertheless timely filed because the thirtieth day fell on a Sunday, and Monday,
February 18, 2002 was a legal holiday. See Fed. R. App. P. 4(a)(1)(A); Fed. R.
App. P 26(a)(3).