In the

United States Court of Appeals

For the Seventh Circuit

No. 01-3117

Beverly Coleman,

Plaintiff-Appellant,

v.

Milwaukee Board of School Directors,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00 C 1174--Rudolph T. Randa, Judge.

Argued March 6, 2002--Decided May 20, 2002

 Before Posner, Evans, and Williams, Circuit

Judges.

 Posner, Circuit Judge. The district

court dismissed this suit for want of

timely service. Fed. R. Civ. P. 4(m). The

plaintiff was a secretary employed by the

Milwaukee Board of School Directors, a

municipal agency that performs various

functions for the Milwaukee public

schools. Contending that the Board had

discriminated against her on account of

her race and retaliated against her for

complaining about the discrimination, she

brought this suit against the Board

claiming violations of Title VII and the

Thirteenth Amendment. She attempted to

serve the complaint, 115 days after

filing it, by leaving a copy of the

complaint and summons with an employee of

a subordinate unit of the Board. After

the Board moved to dismiss the suit on

the ground that it had not been properly

served, the plaintiff left with another

employee of the unit another copy of the

complaint together with a summons

addressed to the superintendent of the

Milwaukee public schools, who has an

office in the same building as the Board

but is not a member of the Board or its

employee, though the Board appoints and

has general supervisory authority over

him. See Wis. Code sec.sec. 119.32(1),

(2), 36.
 Rule 4 provides two methods for serving

a state or local government organization:

delivering a copy of the complaint and

summons to the organization’s chief

executive officer, or serving the

complaint and summons in the manner

prescribed by state law for serving such

an organization. Fed. R. Civ. P. 4(j)(2).

The Board, as it happens, has no chief

executive officer, and as far as the

method of service prescribed by state law

is concerned, Wisconsin law is explicit

that the complaint and summons must be

served on both "the board president and

the superintendent of schools." Wis. Code

sec. 119.12(2). Neither was served; nor

was either of the employees whom the

plaintiff purported to serve authorized

to accept service on behalf of either

official. Neither was even employed in

the office of the Superintendent of

Schools. Service not having been

accomplished within 120 days, the

district judge dismissed the suit without

prejudice, precipitating this appeal.

 Rule 4(m) provides "that if the

plaintiff shows good cause for the

failure [to serve the defendant within

120 days], the court shall extend the

time for service." Good cause means a

valid reason for delay, such as the

defendant’s evading service. Geiger v.

Allen, 850 F.2d 330, 333 (7th Cir. 1988);

Petrucelli v. Bohringer & Ratzinger,

GMBH, 46 F.3d 1298, 1305-06 (3d Cir.

1995); Friedman v. Estate of Presser, 929

F.2d 1151, 1157 (6th Cir. 1991). There

was nothing like that here. But the case

law allows the district court to extend

the time for service even if there was no

good cause for the plaintiff’s missing

the deadline. Henderson v. United States,

517 U.S. 654, 662 (1996); Troxell v.

Fedders of North America, Inc., 160 F.3d

381, 383 (7th Cir. 1998); Panaras v.

Liquid Carbonic Industrial Corp., 94 F.3d

338, 341 (7th Cir. 1996); Espinoza v.

United States, 52 F.3d 838, 840-41 (10th

Cir. 1995); Petrucelli v. Bohringer &

Ratzinger, GMBH, supra, 46 F.3d at 1305.

Thus there is justifiable delay ("good

cause"), but there is excusable neglect

as well, as grounds for extension. In the

first case, that of good cause, an

extension is mandatory; in the second,

that of excusable neglect, it is

permissive, and the judge must be

affirmed provided he did not abuse his

discretion, that is, act unreasonably, in
deciding whether or not the plaintiff’s

delay was excusable. Troxell v. Fedders

of North America, Inc., supra, 160 F.3d

at 383; ARW Exploration Corp. v. Aguirre,

45 F.3d 1455, 1459 (10th Cir. 1995).

 Where as in this case the defendant does

not show any actual harm to its ability

to defend the suit as a consequence of

the delay in service, where indeed it is

quite likely that the defendant received

actual notice of the suit within a short

time after the attempted service, and

where moreover dismissal without

prejudice has the effect of dismissal

with prejudice because the statute of

limitations has run since the filing of

the suit (it has run on the plaintiff’s

Title VII claim, though not on her

Thirteenth Amendment claim), most

district judges probably would exercise

lenity and allow a late service, deeming

the plaintiff’s failure to make timely

service excusable by virtue of the

balance of hardships. But the cases make

clear that the fact that the balance of

hardships favors the plaintiff does not

require the district judge to excuse the

plaintiff’s failure to serve the

complaint and summons within the 120 days

provided by the rule. It does not abolish

his discretion. Abuse of discretion "is a

hard standard to overcome . . . . Troxell

offers no reason to think that the

district court was completely off base in

deciding not to rely on them [permitted

factors in exercising discretion to

extend the 120-day period] here. The

court knew that it had discretion over

the matter; it evaluated Troxell’s

conduct (or, more accurately, that of her

lawyer) as a whole; and it decided not to

exercise its discretion in her favor."

Troxell v. Fedders of North America,

Inc., supra, 160 F.3d at 383; see also De

Tie v. Orange County, 152 F.3d 1109, 1112

n. 6 (9th Cir. 1998); Adams v.

AlliedSignal General Aviation Avionics,

74 F.3d 882, 888 (8th Cir. 1996). Unlike

the district judge in Panaras (see 94

F.3d at 341), the judge in the present

case did not overlook any of the factors

urged upon him by the plaintiff for

exercising discretion in her favor.

 The judge understandably was troubled by

the fact that the plaintiff had delayed

till almost the last minute in attempting

service and then had failed not once but

twice to serve the defendant in the
manner prescribed by Rule 4(j)(2). The

plaintiff’s lawyer could not reasonably

have believed that she was serving the

president of the Board even if she

mistakenly believed that he was the

Board’s chief executive officer, or that

she was serving the Superintendent of

Schools when she attempted to serve an

employee of the Board, the Board and the

Superintendent being separate entities.

In both attempts at service, the

complaint and summons were deposited with

employees in subordinate units of the

Board, not in the office of the president

of the Board, let alone in any office

subordinate to the Superintendent of

Schools.

 In her brief in this court, the

plaintiff advances for the first time a

reason for waiting until the 115th day to

attempt service. She had a related claim

against the Board (a claim for disability

discrimination) that she wished to fold

into her suit, but she could not do that

until she received her right-to-sue

letter on that claim from the EEOC. If

she had served the defendant in the

present suit soon after filing the

complaint, and the defendant had then

answered promptly as it might well have

done, she would have lost her right to

file an amended complaint, containing the

disability claim, without leave of court.

See Fed. R. Civ. P. 15(a); Chavez v.

Illinois State Police, 251 F.3d 612, 632

(7th Cir. 2001); Payne v. Churchich, 161

F.3d 1030, 1036 (7th Cir. 1998); Crim v.

Board of Education, 147 F.3d 535, 547-48

(7th Cir. 1998).

 This is not a good reason for the delay

in service, since there was no real

danger that the district court would have

refused to let her amend her complaint,

thus forcing her to file two separate

discrimination suits arising out of the

same employment. In any event, she failed

to urge that or any reason on the

district judge, who was left with the

impression that the plaintiff’s lawyer

had had no reason at all for the

riskydecision to delay service to the

last minute. And then the lawyer failed

twice to serve the defendant properly,

with no even colorable justification

either time. The district judge could

still have excused the failure to make

timely service but he was not required to

do so, and so the dismissal of the suit
must be

Affirmed.

 Williams, Circuit Judge, concurring. As

the majority opinion makes clear, the

district court did not abuse its

discretion by dismissing Coleman’s case

for her failure to properly comply with

Federal Rule of Civil Procedure 4, and so

we must affirm its decision. Doing so,

however, troubles me, given the

circumstances of this case. As Judges

Posner and Evans point out, there is no

doubt that the defendants had notice of

Coleman’s suit and given the short

statute of limitations governing

Coleman’s Title VII claim, I believe that

the better course would have been to let

the suit proceed. However, the district

court considered all the reasons that

Coleman raised in seeking an extension

under Federal Rule of Civil Procedure

Rule 4(m) and rejected them, so given our

holding in Troxell v. Fedders of North

America, Inc., 160 F.3d 381, 383 (7th

Cir. 1998), I cannot find an abuse of

discretion.

 EVANS, Circuit Judge, dissenting. The

bottom line here is that Beverly Coleman

loses her race discrimination case on a

technicality. Now it’s admittedly hard to

feel too sorry for her because she

contributed to her predicament by waiting

until close to the end of a 120-day

period to get this case moving, and for

that she has no one but herself

(actually, her lawyer or her process

server) to blame. But the law prefers

that cases be resolved on their merits,

not technicalities, and for that reason I

would hold that the district judge abused

his discretion when he decided not to

give Ms. Coleman a few extra days to

perfect service.

 If a defendant is a natural person, the

service of process is easy. It gets a bit

more complicated when the defendant is a

corporation. When the defendant is a

governmental entity, the service of

process can get very tricky, and in this

case it was not a walk in the park.

Chapter 801 of the Wisconsin Statutes,

entitled "Commencement of Action and

Venue," is the starting point for
learning how to properly get a case going

in Wisconsin. Section 801.11 covers the

"manner of serving" a summons on almost

everyone and everything. For instance,

the statute tells us that in an action

against a city, service on the mayor,

city manager, or clerk will suffice. In

an action against a technical college,

service on the district board chairperson

or the secretary will do. But there’s a

bit of a trap, because the Milwaukee

School Board has its own service statute

lurking three volumes away from Chapter

801 in sec. 119.12(2). That statute

provides, as the majority notes, for

service of a summons and complaint to be

made on the president of the school board

and the superintendent. Why both, when

most all other entities allow service on

either one person or office? Who knows.

Logic, at least, does not seem to provide

the answer.

 So we start here with a unique service

statute with which, I agree, Coleman did

not comply. But what she did do was a

"right church, wrong pew" sort of thing:

she delivered her summons and complaint

to the Milwaukee School Board’s "Office

of the Board of Governance." This office

is in the headquarters of the school

board, and for all we know it may be on

the same floor as the offices of the

board’s president and superintendent. For

this reason, the defendant school board

(to its credit) does not hide the fact

that it had prompt actual notice of

Coleman’s claim. And because it had

actual notice, the board cannot in any

way, shape, or form complain that it was

prejudiced by Coleman’s deficient

service.

 Given these circumstances--the

preference for resolving cases on their

merits, a very unique service law (unlike

the simple service requirement the

plaintiff blew in Troxell v. Fedders of

North America, Inc., 160 F.3d 381 (7th

Cir. 1998)), plus actual notice and no

prejudice to the defendant--the district

court, even if this did not add up to

"good cause," should have given Coleman a

little more time to dot her "i’s" and

cross her "t’s." Panaras v. Liquid

Carbonic Indus. Corp., 94 F.3d 338, 340-

41 (7th Cir. 1996). I think most courts,

given these circumstances, would have

exercised discretion favorable to Ms.

Coleman. And because her claim would be
(and is now) forever barred by a very

short statute of limitations, I believe

all but a tiny fraction of district

courts would have exercised discretion

favorable to Ms. Coleman. For these

reasons, I would find an abuse of

discretion and reverse the judgment of

the district court.