In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3301

MARIA CARDENAS, et al.,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO, a municipal corporation, and

ALEJANDRO GALLEGOS, a Chicago Police Officer,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 3174—Charles R. Norgle, Sr., Judge.

ARGUED JUNE 8, 2011—DECIDED JULY 20, 2011

Before POSNER, KANNE, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge. Chicago police officer Alejandro

Gallegos led a team of officers in executing a search

warrant at the apartment of Maria Cardenas, Evanhido

Cardenas, and Natalia Barron (the “Plaintiffs”). The

officers entered the apartment, without knocking and

announcing their presence, and then handcuffed and

harshly handled the residents. The residents subsequently
2 No. 10-3301

sued the City of Chicago and Officer Gallegos, bringing

three state-law and two federal claims based on the

allegedly unlawful search. They did not properly serve

Officer Gallegos with process, however, and he moved

to dismiss the complaint against him more than 360 days

after service was due. The district court granted his

motion to dismiss, finding that the single attempt at

service was inadequate, that no good cause for the

failure was shown, and that an extension was not warranted by the circumstances. It then dismissed the City,

as the City could not be held liable under Illinois law

without the officer’s presence in the suit. We affirm.

I. BACKGROUND

Officer Gallegos obtained a search warrant for the

residence of Maria Cardenas, Evanhido Cardenas, and

Natalia Barron, authorizing officers to search the apartment for a wanted individual, narcotics, money, and

drug paraphernalia. The team of officers, led by Officer

Gallegos, entered the apartment on December 14, 2007,

without knocking or announcing their presence. The

warrant did not authorize this procedure. According to

the complaint, each of the Plaintiffs was in the residence,

threatened with firearms, and restrained against his or

her will. The Plaintiffs allege that the officers searched

recklessly, destroying some belongings and damaging

the apartment itself. The officers left empty-handed,

having found no person or object described in the warrant.

Believing the officers’ conduct violated their rights,

the Plaintiffs sued Officer Gallegos and the City of
No. 10-3301 3

Officer Gallegos neither participated in nor objected to the 1

removal.

Chicago in state court on April 22, 2008, alleging unlawful

execution of a search warrant, assault, battery, and a

federal count of unlawful search and seizure. The

Plaintiffs attempted to serve both defendants on May 9,

2008, through the Cook County Sheriff. The Sheriff successfully served the City, but Officer Gallegos’s summons—which the Plaintiffs had directed to the Chicago

Police Department (“CPD”) Headquarters, care of

the Superintendent—was returned unserved on May 12,

2008.

The City removed the case to federal court on June 2,

2008. The removal notice stated that Officer Gallegos

1

had not yet been served. Counsel for the Plaintiffs

then called CPD on June 19, 2008, and asked how to

properly serve a CPD officer. Counsel undertook no

further service-related effort until November 12, 2008,

when he sent a letter to the City’s counsel requesting

that the City waive service for Officer Gallegos or that it

at least provide Officer Gallegos’s current address. The

two counsel spoke on December 17, 2008, and they

dispute the contents of the telephone conversation: the

City alleges that it described how the CPD Office

of Legal Affairs facilitates the service of an officer, but

Plaintiffs’ counsel claims that no mention of insufficient

service was made. They agree, however, that the City

indicated it lacked the authority to waive service

on Officer Gallegos’s behalf and that it withheld his
4 No. 10-3301

The City’s counsel entered an appearance on Officer 2

Gallegos’s behalf when it filed the joint motion.

address due to policies regarding officer safety and

privacy.

The City and Officer Gallegos jointly moved to dismiss

the suit on September 28, 2009. They first argued that, 2

because Officer Gallegos had never been served, the

complaint against him must be dismissed under Rule

12(b)(5). The motion noted that the CPD’s Office of Legal

Affairs was the appropriate entity to facilitate personal

service on Officer Gallegos. They then argued that the

complaint against the City must be dismissed under

Rule 12(b)(6) because the state’s Tort Immunity Act

would not support municipal liability resulting from an

officer’s act where the officer himself was not liable.

The Plaintiffs opposed the motions, claiming that their

attempt to serve Officer Gallegos through the Superintendent was sufficient and that the City counsel’s stated

settlement intentions led them to believe further service

attempts were unnecessary. While the motions to

dismiss were pending, the Plaintiffs obtained an alias

summons for Officer Gallegos on October 14, 2009. Their

counsel served the summons through CPD’s Office of

Legal Affairs on November 9, 2009, approximately 525

days after the suit was removed.

The district court granted the joint motion to dismiss. It

first determined that the Plaintiffs had not properly

served Officer Gallegos within the 120-day limit established by Rule 4(m). It also determined that the Plain-
No. 10-3301 5

tiffs lacked good cause for the failed service and declined

to grant a discretionary extension. The district court then

determined that, without Officer Gallegos in the suit,

liability would not lie against the City. It dismissed the

Plaintiffs’ suit with prejudice on February 15, 2010. The

district court subsequently denied the Plaintiffs’ motion

to alter or amend the judgment, in which they argued

that the court had not considered all of the appropriate

factors in its extension decision.

II. ANALYSIS

The Plaintiffs now appeal the dismissal of their suit,

presenting two issues for our review. First, they contend

that the district court erred in granting Officer Gallegos’s

motion to dismiss pursuant to Rule 12(b)(5). They argue

that they successfully served Officer Gallegos within

the allotted time and that—if we find they did not—the

district court erred in denying them an extension during

which they could perfect service. Second, they contend

that if we conclude the district court erred in its service

of process determinations, we must reverse its grant of

the City’s motion to dismiss pursuant to Rule 12(b)(6)

and reinstate their claims against the City. We do not

reach and express no opinion on their second issue, as it

is clearly conditioned upon our determination regarding

their first issue.

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
6 No. 10-3301

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). The same 120-day

period applies where suits are removed to federal court

from state court, except that the period commences upon

the date of removal. See Fed. R. Civ. P. 81(c)(1); Romo v.

Gulf Stream Coach, Inc., 250 F.3d 1119, 1122-23 (7th Cir.

2001); Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th

Cir. 2010). These service requirements provide notice to

parties, see Henderson v. United States, 517 U.S. 654, 672

(1996), encourage parties and their counsel to diligently

pursue their cases, see Geiger v. Allen, 850 F.2d 330, 331

(7th Cir. 1988), and trigger a district court’s ability to

exercise jurisdiction over a defendant, see United States

v. Ligas, 549 F.3d 497, 500 (7th Cir. 2008).

A defendant may enforce the service of process requirements through a pretrial motion to dismiss. Fed. R. Civ. P.

12(b)(5). The plaintiff bears the burden to demonstrate

that the district court has jurisdiction over each defendant through effective service. See Homer v. Jones-Bey,

415 F.3d 748, 754 (7th Cir. 2005). 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).

As the text of the rule indicates, the decision of whether

to dismiss or extend the period for service is inherently

discretionary, Ligas, 549 F.3d at 501, and we will review

the district court’s judgment only for abuse of that discretion. Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d
No. 10-3301 7

932, 934 (7th Cir. 2002); Kurka v. Iowa Cnty., Iowa, 628

F.3d 953, 957 (8th Cir. 2010).

A. Insufficient Service of Process

The Plaintiffs first argue that the district court erred in

its consideration of their initial attempt to serve Officer

Gallegos. They contend that they had properly served

Officer Gallegos on May 9, 2008, and that we should

reinstate their claims accordingly. We review de novo the

district court’s determination regarding the sufficiency

of the Plaintiffs’ service of process. See uBID, Inc. v.

GoDaddy Grp., Inc., 623 F.3d 421, 423-24 (7th Cir. 2010);

Williams v. Leach, 938 F.2d 769, 771 (7th Cir. 1991).

The Plaintiffs’ contention that they properly served

Officer Gallegos within 120 days as required by Rule 4(m)

lacks merit. Their asserted belief that they properly

served Officer Gallegos on May 9, 2008—as well as their

incredible claim that “[i]t was only upon being served

with Defendant’s Motion to Dismiss” that they realized

that their attempt was “supposedly deficient”—is flatly

belied by (1) the return of the summons three days later

marked as not served, (2) their post-removal inquiry

regarding the proper means of service, and (3) their

request for the city to waive service on Officer Gallegos’s

behalf. They nevertheless argue, unconvincingly, that the

Superintendent is the de facto head of the Office of

Legal Affairs and that serving the summons on the Superintendent’s office was essentially the same as giving it

to the Office of Legal Affairs. They also complain about

the difficulty of serving police officers in general. But
8 No. 10-3301

neither point explains how their attempt at service complied with either the state or federal rules.

Perhaps the Plaintiffs believe that offering the summons to another office on the same floor as the correct

office should suffice, and thus wish us to deem their

singular attempt valid. Whether such an effort should

arguably be effective has no bearing on whether it

was legally sufficient. Because this attempt at service

occurred before the case was removed, Illinois service of

process rules govern whether the attempt was legally

sufficient. Allen v. Ferguson, 791 F.2d 611, 616 n.8 (7th

Cir. 1986). Under Illinois law, serving an individual’s

employer or other putative agent is not sufficient for

service on the individual. See 735 Ill. Comp. Stat. 5/2-203.

Even if the Federal Rules of Civil Procedure applied to

this singular attempt at service, the Plaintiffs have not

shown that the Superintendent was an authorized agent

to receive service of process on Officer Gallegos’s behalf.

See Fed. R. Civ. P. 4(e)(2)(C). Accordingly, the district

court did not err in determining that the Plaintiffs had

not served Officer Gallegos within the 120-day period.

B. Denial of Extension

Despite knowing that the summons for Officer Gallegos

was returned unserved, the Plaintiffs undertook no servicerelated efforts until well after the 120-day deadline had

passed. Perhaps because of this unexplained lapse, they

renounce any argument that they had good cause for

their lack of service and that they were entitled to the
No. 10-3301 9

resulting compulsory extension. See Fed. R. Civ. P. 4(m);

Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th

Cir. 1996). Instead, the second prong of the Plaintiffs’

argument is that the district court erred in its refusal to

grant them a discretionary extension of time in which

to serve Officer Gallegos. They allege that the district

court abused its discretion because it failed to take the

relevant factors into consideration and because the

balance of hardships militated an extension. They ask us

to reverse its decision and reinstate their claims now

that Officer Gallegos has been served with process.

The district court declined to extend the deadline for

service and chose instead to dismiss the claims against

Officer Gallegos. In doing so, it acknowledged that

the expiration of the statute of limitations would bar

refiling of the suit, but correctly noted that this factor

alone neither required nor justified an extension. See

Panaras, 94 F.3d at 341; Kurka, 628 F.3d at 959. The

district court ultimately determined that the fault for the

profound delay rested squarely on Plaintiffs’ counsel’s

shoulders: “Counsel made no other attempts at service,

though it should have been aware that it would face

serious consequences if it ultimately failed to serve an

essential party. The Court sees no reason to allow

Counsel more time to accomplish what it should have

done several months ago.” Cardenas v. City of Chicago,

2010 WL 610621, at *5 (N.D. Ill. Feb. 15, 2010).

On appeal, the Plaintiffs argue that the district court

was required to balance the parties’ hardships in exercising its discretion by considering five factors they
10 No. 10-3301

distill from various cases: (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. The

Plaintiffs are correct that district courts should consider

the relative hardships of the parties in arriving at its

discretionary choice between dismissal and extension

of time. See Coleman, 290 F.3d at 934; Zapata v. City of

New York, 502 F.3d 192, 197 (2d Cir. 2007). Rule 4(m)

does not specify which factors the district court must

consider in exercising its discretion, see United States v.

McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006) (noting

that the rule “specifies no criteria for the exercise of

mercy”), but the Plaintiffs correctly identify some

factors that the district court may consider in its decision. See, e.g., Coleman, 290 F.3d at 934 (harm to

defendant’s ability to defend, receipt of actual notice,

expiration of statute of limitations); McLaughlin, 470

F.3d at 701 (evasion of service, admission of liability,

windfall to defendant); Troxell v. Fedders of N. Am., Inc.,

160 F.3d 381, 383 (7th Cir. 1998) (actual notice

and eventual service). Yet the Plaintiffs propose only

those factors they believe favor their chances of securing

an extension, overlooking other acceptable considerations—such as whether they ever requested an extension from the court due to difficulties in perfecting

service (they did not) and whether they diligently

pursued service during the allotted period (they did
No. 10-3301 11

not). Further, even if the balance of hardships appears

to favor an extension, the district court retained its discretion to hold the Plaintiffs accountable for their actions—or, more accurately, inaction—by dismissing the

case. Coleman, 290 F.3d at 934.

A district court should, of course, consider the arguments and factors advanced by the plaintiff, see id., and it

should pay particular attention to a critical factor such

as the running of a statute of limitations, see Panaras,

94 F.3d at 341. But while we encourage courts to do so

as a matter of practice, no authority requires a district

court to explain on the record its detailed reasoning

for each plaintiff-proposed factor. And certainly nothing

forbids its consideration of factors plaintiffs tellingly

ignore. The district court’s order in this case does not

show its explicit consideration of all the potentially applicable factors, but the order specifically addresses

the statute of limitations and rejects it as a basis for extension under the circumstances. The district court also

notes those factors it regarded as dispositive: Plaintiffs’

lack of diligence, a year’s delay in service even after

being informed of the proper method, and counsel’s

inaction in the face of the known serious consequences

of his failure to serve an essential party. Finally, in its

disposition of the Plaintiffs’ motion to amend the judgment, the district court indicated it had already evaluated

the factors advocated and the cases presented by the

Plaintiffs in opposition to dismissal.

Ultimately, the district court recognized its discretion

in applying Rule 4(m), evaluated the circumstances of
12 No. 10-3301

the Plaintiffs’ failure to serve Officer Gallegos, and determined that the Plaintiffs’ counsel had only himself to

blame. 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, 160 F.3d at 383.

The Plaintiffs have offered us “no reason to think that

the district court was completely off base” in deciding

not to rely exclusively on the factors they propose. Id.

The district court could have excused the lack of timely

service, but we cannot call its choice not to grant

an extension unreasonable—especially given both that

Plaintiffs’ counsel made no attempt to serve Officer

Gallegos in the 483 days between removal and the filing

of the motion to dismiss and also that another 42 days

elapsed before counsel finally served the Office of Legal

Affairs. Indeed, it strikes us as eminently reasonable to

hold the Plaintiffs accountable for their unexplained

inaction in the face of their crucial burden to timely

serve Officer Gallegos with process. We conclude that

the district court did not abuse its discretion by granting

Officer Gallegos’s motion to dismiss.

C. Dismissal without Prejudice

Before closing, we must address one final aspect of the

district court’s order. A dismissal pursuant to a Rule

12(b)(5) motion ordinarily should be entered without

prejudice. See Fed. R. Civ. P. 4(m); Ligas, 549 F.3d at 501.

The district court, however, dismissed the claims

against Officer Gallegos with prejudice based on the
No. 10-3301 13

fact that the applicable statute of limitations had expired

while the case was pending. Cardenas, 2010 WL 610621,

at *5. The Plaintiffs argued for the first time at oral argument that its order was inconsistent with Rule 4(m)’s

clear “without prejudice” requirement.

Both the district court and the Plaintiffs correctly recognize that any refiled suit would be time-barred. That bar

effects a result similar to a dismissal with prejudice:

“[I]f the statute of limitations has meanwhile expired it

will be the limitations defense that greets [any] new

action, which will make the case just as dead as a disposition on the merits . . . .” David Siegel, Practice Commentary on Fed. R. Civ. P. 4, C4-38, reprinted at 28

U.S.C.A. Fed. R. Civ. P. 4 at 211 (West 2008). And in

similar circumstances, we previously noted that

dismissal with prejudice was appropriate where the

plaintiff did not meet Rule 4(m) and where the statute

of limitations expired during the federal case. Conover v.

Lein, 87 F.3d 905, 908 (7th Cir. 1996). Accordingly, we

find no error in the district court’s dismissals.

III. CONCLUSION

The Plaintiffs did not serve Officer Gallegos with

process within the time allotted by the Federal Rules of

Civil Procedure. Because the district court did not abuse

its discretion in declining to extend the period in which

the Plaintiffs could serve him, we AFFIRM its dismissal of

the Plaintiffs’ suit.

7-20-11