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UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

LANDLOCK NATURAL PAVING, INC., 

 Plaintiff, 

 vs. 

DESIN L.P., DESIN MANAGEMENT LLC, JOEL 

DESIN, and BRIAN MURPHY, 

Defendants. 

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12 C 2893 

Judge Feinerman 

MEMORANDUM OPINION AND ORDER

 Landlock Natural Paving, Inc., brought this diversity suit against Stiles Paint 

Manufacturing, Inc. d/b/a Tresco Paint Manufacturing (“Stiles”), Tresco Paint Manufacturing 

Inc. (“Tresco”), and Desin L.P., alleging violations of Illinois law. Doc. 23. A default judgment 

in the amount of $242,141.98 was entered against Desin L.P. after it failed to appear. Docs. 42-

43. The court granted in part and denied in part Tresco’s motion to dismiss under Federal Rule 

of Civil Procedure 12(b)(6). Docs. 49-50 (reported at 2013 WL 4854361 (N.D. Ill. Sept. 11, 

2013)). Then, on Landlock’s motion, the claims against Stiles and Tresco were dismissed with 

prejudice, and Landlock was given leave to file a second amended complaint. Doc. 61. 

 The second amended complaint, which was filed on May 30, 2014, alleges breach of 

contract and common law fraud and names four defendants. Doc. 63. One defendant is Desin 

L.P., against which a default judgment had already been entered. The other three defendants are 

new: Desin Management LLC (“Desin Management”), Joel Desin (“Desin”), and Brian Murphy. 

Doc. 63. Desin and Murphy filed appearances. Docs. 64-65. At a status hearing on July 17, 

2014, Desin and Murphy’s counsel reported that they had not been served with summons and 

offered to accept service on their behalf; Landlock’s attorney responded to the offer by saying 
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that he would effect service within seven days. When the court asked whether Desin and 

Murphy had waived service by appearing, their attorney indicated that appearing did not waive 

service; the court left the issue open and gave Desin and Murphy until August 15, 2014 to 

answer or otherwise plead. Doc. 66. 

 Desin and Murphy timely answered and asserted several affirmative defenses, including 

insufficient service of process under Rule 12(b)(5). Doc. 67. At a status hearing five days later, 

Desin and Murphy’s attorney again noted that they had not been served with summons, and 

further noted that summons had not even issued. When the court asked whether Desin and 

Murphy had waived service by appearing and answering, their attorney replied that service was 

still required and that their answer had preserved the issue. Two months later, Desin and 

Murphy moved under Rule 12(i) for dismissal pursuant to their Rule 12(b) defenses and also for 

judgment on the pleadings under Rule 12(c). Doc. 74; see Fed. R. Civ. P. 12(i) (“If a party so 

moves, any defense listed in Rule 12(b)(1)-(7)—whether made in a pleading or by motion—and 

a motion under Rule 12(c) must be heard and decided before trial unless the court orders a 

deferral until trial.”) (emphasis added); King v. Taylor, 694 F.3d 650, 657 n.2 (6th Cir. 2012). 

 “After commencing a federal suit, the plaintiff must ensure that each defendant receives a 

summons and a copy of the complaint against it. Fed. R. Civ. P. 4(b), (c)(1). Unless the plaintiff 

can demonstrate good cause for being unable to do so, she must accomplish this service of 

process within 120 days of filing to avoid possible dismissal of the suit. Fed. R. Civ. P. 4(m).” 

Cardenas v. City of Chicago, 646 F.3d 1001, 1004 (7th Cir. 2011). “A defendant may enforce 

the service of process requirements through a pretrial motion to dismiss [under] Fed. R. Civ. P. 

12(b)(5).” Id. at 1005; see 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & 

Procedure § 1353, at p. 334 (3d ed. 2004) (“A Rule 12(b)(5) motion is the proper vehicle for 
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challenging ... the lack of delivery of the summons and complaint.”). When a defendant 

challenges the sufficiency of service, the plaintiff bears the burden of demonstrating that proper 

service occurred. See Cardenas, 646 F.3d at 1005; Homer v. Jones-Bey, 415 F.3d 748, 754 (7th 

Cir. 2005). 

 Landlock admits that it failed to serve summons on Desin and Murphy, but seeks an 

extension under Rule 4(m) to effectuate service. Doc. 79 at 1-4. Rule 4(m) provides: 

If a defendant is not served within 120 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). When presented with an extension request under Rule 4(m), “a district 

court must first inquire whether a plaintiff has established good cause for failing to effect timely 

service. If good cause is shown, the court shall extend the time for service for an appropriate 

period.” Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). Landlock 

admits that it “cannot show good cause for its failure to serve Defendants.” Doc. 79 at 3. 

 Where, as here, “good cause does not exist, the court may, in its discretion, either dismiss 

the action without prejudice or direct that service be effected within a specified time.” Panaras, 

94 F.3d at 340; see also Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 

2002). “[S]ome factors that the court may consider in its decision” include: “(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 1006. Other factors 

include “whether [the plaintiff] ever requested an extension from the court due to difficulties in 
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perfecting service ... and whether [the plaintiff] diligently pursued service during the allotted 

period.” Id. at 1007. “Further, even if the balance of hardships appears to favor an extension, 

the district court retain[s] its discretion to hold the Plaintiffs accountable for their actions—or, 

more accurately, inaction—by dismissing the case.” Ibid. 

 Some factors weigh in favor of an extension. Desin and Murphy’s ability to defend the 

suit would not be prejudiced by an extension, as they have been participating since shortly after 

they were added as defendants, and they certainly had actual notice of the suit. It also is likely 

that if the fraud and contract claims against Desin and Murphy are dismissed, refiling would be 

barred by the statute of limitations. The parties agree that Landlock’s contract and fraud claims 

accrued on August 24, 2009. Doc. 79 at 3; Doc. 81 at 6. Landlock assumes that both claims are 

subject to a five-year statute of limitations. Doc. 79 at 3. Desin and Murphy suggest that 

Landlock’s contract claim might instead be subject to a four-year statute of limitations. Doc. 81 

at 6. Landlock filed the second amended complaint on May 30, 2014, which was 86 days before 

the expiration of the five-year statute of limitations and about nine months after the expiration of 

the four-year statute of limitations. So, even if the statute had already run on the contract claim 

by the time Desin and Murphy were added as defendants, dismissal almost certainly would be 

fatal to the fraud claim. And if the statute had not already run on the contract claim by that time, 

then dismissal almost certainly would be fatal to both claims. 

 Other factors, however, weigh against an extension. Desin and Murphy did not attempt 

to evade service; to the contrary, their attorney stated on the record that he would accept service 

for them. See Cardenas, 646 F.3d at 1006. Even after the service issue had been raised twice 

during status hearings—when Desin and Murphy’s counsel gave notice that they had not been 

served and, in response to the court’s questions, stated their belief that they had not waived 
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service by appearing and answering and indicated their intention to press the issue—and even 

after Desin and Murphy asserted lack of service under Rule 12(b)(5) as an affirmative defense, 

Landlock still did not attempt to serve them. See ibid. Landlock never “requested an extension 

from the court due to difficulties in perfecting service,” id. at 1007, as there were no such 

difficulties given counsel’s offer to accept service. And Landlock certainly did not “diligently 

pursue[] service during the allotted period.” Ibid. 

 After considering and weighing the relevant factors, the court concludes that an extension 

would be unwarranted and inappropriate in this case. In so holding, the court recognizes the 

statute of limitations issue, but notes that the Seventh Circuit has held that the fact “that the 

expiration of the statute of limitations would bar refiling of the suit ... neither require[s] nor 

justifie[s] an extension” under Rule 4(m). Id. at 1006; see also Panaras, 94 F.3d at 341 (“[A] 

district court may in its discretion still dismiss a case even after considering that the statute of 

limitations has run.”). An extension is neither required nor justified here, for the limitations 

problem is wholly of Landlock’s own making. Landlock waited until less than three months 

before the five-year limitations period expired to sue Desin and Murphy, leaving little room for 

error in the event of a snafu with service. Moreover, the failure to serve Desin and Murphy was 

entirely Landlock’s fault, as defense counsel offered to accept service on their behalf; it is 

difficult imagine circumstances where it would have been easier for Landlock to serve Desin and 

Murphy. In fact, in response to counsel’s offer, Landlock stated in open court that it would effect 

service—and yet it did not do so. 

 Landlock’s inexplicable lack of diligence counsels strongly against a discretionary 

extension under Rule 4(m) and outweighs the factors, including the bar to refiling likely posed 

by the statute of limitations, that otherwise might justify an extension. See Dumas v. Decker, 
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556 F. App’x 514, 515 (7th Cir. 2014) (holding that “the [district] court reasonably concluded 

that plaintiffs’ lack of diligence ‘counsels heavily’ against a discretionary extension and ‘far 

outweighs’ those factors that might justify an exception”); Cardenas, 646 F.3d at 1007 (“[I]t 

strikes us as eminently reasonable to hold the Plaintiffs accountable for their unexplained 

inaction in the face of their crucial burden to timely serve [the defendant] with process.”); 

Coleman, 290 F.3d at 935 (affirming the denial of a Rule 4(m) extension where “the [plaintiff’s] 

lawyer failed twice to serve the defendant properly, with no even colorable justification either 

time”). And “even if the balance of hardships appear[ed] to favor an extension”—which it does 

not—under the particular circumstances of this case, the court still would exercise “its discretion 

to hold [Landlock] accountable for [its] actions—or, more accurately, inaction—by dismissing” 

the claims against Desin and Murphy. Cardenas, 646 F.3d at 1007. 

 For the foregoing reasons, Landlock’s claims against Desin and Murphy are dismissed 

under Rule 12(b)(5). The dismissal is without prejudice. See Cardenas, 646 F.3d at 1007 (“A 

dismissal pursuant to a Rule 12(b)(5) motion ordinarily should be entered without prejudice.”); 

Fed. R. Civ. P. 4(m) (allowing for a dismissal “without prejudice”). Given this disposition, there 

is no need to address Desin and Murphy’s other arguments for dismissal. Only one defendant 

remains: Desin Management. It does not appear that Landlock has served that defendant, which 

has not appeared. Pursuant to Rule 4(m), Landlock has until March 13, 2015 to serve Desin 

Management and file the executed return; failure to do so will result in the dismissal without 

prejudice of that defendant. 

February 20, 2015 

 United States District Judge