IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CRAIG A. LOZANOVSKI, )

)

Plaintiff, )

)

vs. ) NO. 2:15-CV-454

)

OFFICER SCOTT BOURRELL, )

in his individual )

capacity, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the Defendants’ Motion to

Dismiss Plaintiff’s Amended Complaint, filed by the defendants on

March 7, 2017. (DE #38.) For the reasons set forth below, the

motion is DENIED.

BACKGROUND

The plaintiff, Craig A. Lozanovski (“Plaintiff”), filed a

complaint against the defendants, the City of Crown Point, Indiana,

Officer Scott Bourrell, Officer Derrell Josleyn, Officer Robery

Ballas, and Officer Mille Knezevic (collectively, “Defendants”), on

December 16, 2015. (DE #1.) On June 29, 2016, Defendants filed a

motion to dismiss the complaint, arguing that Defendants had not

-1-
been properly served, that the claims against the defendant police

officers in their official capacities were redundant and improperly

sought to hold the City liable on the basis of vicarious liability,

and that Plaintiff had not alleged a sufficient factual basis to

support entity liability. (DE #16.) With the permission of the

Court, Plaintiff subsequently filed an amended complaint. (See DE

#24 & DE #25.) On August 8, 2016, Defendants filed a motion to

dismiss the amended complaint, again arguing that Defendants had

not been properly served and that Plaintiff had not alleged a

sufficient factual basis to support entity liability. (DE #26.) 

On January 24, 2017, Judge Theresa L. Springmann1

 granted in part

and denied in part the motion. (DE #33.) The claims against the

City of Crown Point, Indiana were dismissed pursuant to Federal

Rule of Civil Procedure 12(b)(6), and the Plaintiff was ordered to

perfect service of process upon the remaining Defendants by

February 23, 2017. (Id.)

On February 14, 2017, Plaintiff filed an Affidavit of Special

Process Server and Certificates of Service signed by Susan Mack,

Deputy Clerk (“Ms. Mack”) and dated February 7, 2017. (DE #34.) 

In the Certificates of Service, Ms. Mack certified that she had the

authority to accept service on behalf of Defendants and had been

served. (DE #34.) On March 7, 2017, Defendants filed the instant

1

 The case was reassigned to the undersigned Judge on May 1, 2017. (DE

#53.) 

-2-
motion to dismiss on the basis that they had not been properly

served because Ms. Mack did not have the authority to accept

service on behalf of Defendants. (DE #38.) On March 16, 2017,

Plaintiff filed a verified motion for leave to file service of

process, attaching an exhibits entitled Affidavit of Special

Process Server and Certificates of Service signed by Kathleen

Broukal (“Ms. Broukal”) and dated March 8, 2017. (DE #40, DE #40-

1, & DE #40-2.) In the Certificates of Service, Ms. Broukal

certified that she had the authority to accept service on behalf of

Defendants and had been served. (DE #40-2.)

On March 21, 2017, Plaintiff filed a response to the instant

motion to dismiss, arguing that he believed service had been

perfected on February 7, 2017, and upon learning that Defendants

claimed Ms. Mack did not have authority to accept service on their

behalf, he immediately arranged for the summons and complaints to

be re-served the next day as described in the preceding paragraph. 

(DE #41.)

On April 5, 2017, Defendants filed a reply to the instant

motion to dismiss as well as a response to the motion for leave to

file service. (DE #46 & DE #47.) In both, Defendants maintain

that service was not perfected because Ms. Broukal did not have the

authority to accept service on behalf of Defendants, and they argue

that Plaintiff should not be afforded any additional time to file

service of process. (Id.) 

-3-
Plaintiff filed a reply in support of his motion for leave to

file service of process on April 25, 2017, arguing that he had been

making good faith efforts to effectuate process since the inception

of this case. (DE #51.) Plaintiff also submitted Affidavits of

Service that same day, indicating individual service on Defendants

occurring between March 21, 2017, and April 19, 2017. (DE #51-1,

DE #51-2, DE #51-3, & DE #52-1.)

On February 1, 2018, Magistrate Judge Paul R. Cherry issued an

opinion and order granting the motion for leave to file service of

process, in which he determined that Plaintiff had shown excusable

neglect regarding the missed deadline previously set by the Court. 

(DE #54.) Specifically, Judge Cherry stated: 

Upon receiving the new deadline to serve

Defendants, Plaintiff acted promptly and made

his first attempt to serve Defendants on

February 7, 2017. Upon learning that

Defendants did not authorize [Ms.] Mack to

accept service, Plaintiff again acted promptly

and made a second attempt on March 8, 2017. 

When Defendants communicated that [Ms.]

Broukal was also not authorized to accept

service, Plaintiff switched to attempting

individual service, and the Affidavits

reflecting individual service show that

Plaintiff once again acted promptly in seeking

to achieve service.

(Id.) The instant motion to dismiss (DD #38) is now fully ripe for

adjudication. 

DISCUSSION

Defendants have moved to dismiss this case for lack of

-4-
personal jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(2) and for insufficient process pursuant to Federal Rule of

Civil Procedure 12(b)(5) due to Plaintiff’s alleged failure to

properly serve Defendants with a copy of the summons and complaint. 

Under a Rule 12(b)(2) motion for lack of personal jurisdiction, the

burden is on the plaintiff to establish that the court has

jurisdiction over the defendant. Turnock v. Cope, 816 F.2d 332,

333 (7th Cir. 1987). Motions made under Rule 12(b)(5) challenging

process and service of process have the same standard of review as

Rule 12(b)(2) motions because “valid service of process is

necessary in order to assert personal jurisdiction over a

defendant.” Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d

297, 301 (7th Cir. 1991). Valid service on an individual within a

judicial district of the United States may be effectuated by:

(1) following state law for serving a summons

in an action brought in courts of general

jurisdiction in the state where the district

court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and

of the complaint to the individual

personally;

(B) leaving a copy of each at the

individual’s dwelling or usual place of

abode with someone of suitable age and

discretion who resides there; or

(C) delivering a copy of each to an agent

authorized by appointment or by law to

receive service of process.

Fed. R. Civ. P. 4(e). Under Indiana law, service may be made on an

individual by: 

-5-
(1) sending a copy of the summons and

complaint by registered or certified mail or

other public means by which a written

acknowledgment of receipt may be requested and

obtained to his residence, place of business

or employment with return receipt requested

and returned showing receipt of the letter; or

(2) delivering a copy of the summons and

complaint to him personally; or

(3) leaving a copy of the summons and

complaint at his dwelling house or usual place

of abode; or

(4) serving his agent as provided by rule,

statute or valid agreement.

Ind. T.R. 4.1(A). When service is made pursuant to either of the

last two methods described above, a copy of the summons and

complaint must be sent via first class mail to the last known

address of the person being served. Ind. T.R. 4.1(B). If proper

service is not accomplished, Rule 4(m) contemplates dismissal as

follows:

If a defendant is not served within 90 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 considering a failure to serve a defendant within the

required timeframe, the “court must first inquire whether a

plaintiff has established good cause for failing to effect timely

service.” Panaras v. Liquid Carbonic Industries Corp., 94 F.3d

338, 340 (7th Cir. 1996). If a plaintiff establishes good cause,

-6-
the court is required to afford the plaintiff additional time for

service. Id.; Fed. R. Civ. P. 4(m). Even when good cause has not

been shown, a court still has discretion to permit service after

the 120 day period. Panaras, 94 F.3d at 340 (citation omitted). 

In coming to this decision, a 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 v. City of Chicago, 646 F.3d 1001, 1006 (7th

Cir. 2011); see also Coleman v. Milwaukee Bd. of Sch. Dir., 290

F.3d 932, 934 (7th Cir. 2002); Troxell v. Fedders of N. Am., Inc.,

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

In its motion, Defendants argue that this case should be

dismissed because Plaintiff failed to perfect service for over

eleven months following the time he first became aware that there

was an issue. Plaintiff responds by arguing that dismissal is

unwarranted because he continually made good faith efforts to

properly serve Defendants and was eventually able to individually

serve each Defendant by April of 2017. Indeed, Judge Cherry found

that Plaintiff had shown excusable neglect and granted his motion

for leave to file service beyond the previous deadline set by the

-7-
Court, noting that affidavits evincing individual service on

Defendants had been filed on the docket. The question is whether

that service of process enough to stave off dismissal. 

A balance of the relevant factors leads the Court to conclude,

in its discretion, that dismissal is unwarranted. While good cause

has not been shown, the Court agrees with Judge Cherry’s analysis

that an extension of time to file service of process was warranted

on the basis of excusable neglect. Plaintiff repeatedly attempted

to perfect service both before and after the Court ordered deadline

of February 23, 2017. In fact, Plaintiff’s counsel believed he had

properly served Defendants as of February 7, 2017, and he acted

promptly to address the issue as soon as Defendants filed their

motion to dismiss; this included switching to individual service as

a final measure after the previous methods had been challenged as

ineffective. And, the record reflects that all Defendants were

individually served by April 19, 2017, less than two months after

the Court’s deadline.2 Moreover, while there is no compelling

evidence to suggest that Defendants purposefully attempted to evade

service, it is reasonable to conclude that they had actual notice

of the lawsuit from very early on; counsel for all Defendants

entered appearances on their behalf on April 28, 2016 (DE #8 & DE

2

 Process server Lisa Everett attests that she delivered copies of the

summons, complaint, and amended complaint personally to Officer Ballas on

April 4, 2017 (DE #51-1), to Officer Josleyn on March 24, 2017 (DE #51-2), to

Officer Knezevic on March 21, 2017 (DE #51-3), and to Officer Bourrell on

April 19, 2017 (DE #52-1). See Fed. R. Civ. P. 4(e)(2)(A); see also Ind. T.R.

4.1(A)(2). 

-8-
#9) and have continuously advocated for them since that time. 

Thus, it is clear that Defendants’ ability to defend the suit has

not been hampered by the delay in perfecting service. Finally,

dismissing this case would be fatal to Plaintiff’s claims, as it is

undisputed that the statute of limitations has already run. See

Cardenas, 646 F.3d at 1007 (citing Panaras, 94 F.3d at 341) (courts

“should pay particular attention to a critical factor such as the

running of a statute of limitations”). Because a balance of the

foregoing factors weighs heavily against dismissal, the Court, in

its discretion, will permit the service of the complaint and

summons filed beyond the original deadline and declines to dismiss

this case pursuant to Rule 12(b)(5).

CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss

Plaintiff’s Amended Complaint (DE #38) is DENIED.

DATED: February 15, 2018 /s/RUDY LOZANO, Judge

United States District Court

-9-