defendants) was reasonable and we granted it.> See Fed. R. Civ. P. 4, Advisory Committee Notes,
1993 Amendments, Subdivision (m) (“[rlelief may be justified .. . if the applicable statute of
limitations would bar the refiled action, or if the defendant is evading service ....”). Plaintiffserved
Smith within that time period.*

Smith also.argues that he has been prejudiced in his defense because of the delay in service.
He says that his opportunity to investigate and question potential witnesses has been lost, in part
because witnesses’ memories have faded, and that his own ability to recall the events surrounding
Fahy’s death has diminished. (Mot. to Dismiss at 7.) Plaintiff responds that any delay does not
prejudice Smith, especially because he is a medical doctor. She says that it is customary for medical
institutions to maintain medical records for at least seven years. She also says that under Illinois’
discovery rule, malpractice actions against physicians can be brought up to four years after the
negligent act. These facts, she says, alert physicians to the fact that suits can be brought many years

after a particular event. (Response at 6.)

Without commenting on plaintiffs specific arguments, we do not find that Smith has
established any prejudice from the delay in service of process. Cf Coleman v. Milwaukee Bd. of
School Dirs., 290 F.3d 932, 934 (7th Cir. 2002) (late service allowed in part because defendant does

not show any actual harm to its ability to defend suit as a consequence of the delay in service). He

3 smith says that plaintiff served him without leave of court on December 22, 2003. (Mot. to Dismiss at 3.)
That is not the case. On November 12, 2003, we told plaintiff's new counsel that unserved defendants had to be served
before depositions were to begin in six weeks’ time.

4 ‘Smith states in his mction that plaintiff did not even obtain a summons for him until December 19, 2003.
(Mot. to Dismiss at 2-3.) However, the court file indicates that five summonses, one for each named defendant, were
issued to plaintiff on September 2:9, 2001.

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service be effected within a specified time). If good cause for an extension of time to effect service
is shown, then Rule 4(m) requires a court to grant the extension, See Fed. R. Civ. P. 4(m) (use of
word “shall” means court must extend time). Even if good cause is not shown, a court has discretion.
to grant an extension of time beyond the 120-day period provided for in Rule 4(m). See Fed. R. Civ.
P. 4, Advisory Committee Notes, 1993 Amendments, Subdivision (m) (new subdivision (m)
“explicitly provides that the court shall allow additional time if there is good cause” and “authorizes
the court 6 relievé a plaintiff of the consequences of an application of this subdivision even if there
is not good cause shown”). See also Davis v. National R.R. Passenger Corp., 1997 WL 527287, at
*2n.2 (ND. Til. Aug. 19 1997) (citing Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 341
(7th Cir. 1996) for propositicn that under Rule 4(m), courts have discretion to enlarge the 120-day
period even if no good cause is shown).

Smith has not provided us with any means, such as transcripts of proceedings before us and
Magistrate Judge Nolan, by which we could engage in a close re-examination of the circumstances
that led to our November 2013 decision to grant plaintiff an extension of time to serve Smith.' At
the time this matter was before us that November, plaintiffs original counsel had withdrawn from
the case and plaintiff’s new (and present) counsel suggested that an attempt to locate Smith to effect
service had been made by former counsel.? Discovery had not yet begun. Moreover, the statute of
limitations may have affected plaintiff's ability to refile against unserved defendants. We were

satisfied at that time that a limited extension of time in which to serve Smith (and other unserved

) We are not: suggesting tat, if Smith provides transcripts to us, we will reconsider our decision on this matter.

2 Plaintiff's counsel now says that Smith was difficult to locate and serve because he no longer works for the
state of Illinois, he has an unlisted number and his current home and work addresses were unknown. (Response at 4.)

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does not argue that any records have been lost or that specific witnesses are unavailable.’ He says
only in general terms that memories have faded, but this alone does not establish that Smith’s ability
to defend himself has been compromised because of the late service. Id.® Given the circumstances
under which we granted plaiatiff an extension of time in which to serve Smith and Smith’s failure
at this time to provide evidence of any actual harm due to the delayed service, we deny Smith’s

motion to dismiss.

Conclusion
For the reasons stated above, defendant’s motion to dismiss is denied.

ENTER:

D STATES DISTRICT JUDGE
PAUL E. PLUNKETT

JUN 18 2004

DATED:

$ Magistrate Judge Nolan’s June 2002 Order, requiring that medical and psychiatric reports and records be
produced upon request to the atto:neys of record in this case, addressed in part the risk that documentary evidence may
be lost.

® For the Coleman court, one of the considerations in deciding whether to dismiss a case for untimely service
was whether defendant actually had notice of the suit, See Coleman, 290 F.3d at 934. It is not unreasonable to assume
that Smith knew about this lawsuit before he was served. The Illinois Department of Corrections (‘TDOC”) (Smith’s
employer at the time of Dale Fahy’s suicide) is listed as an attorney of record on the court’s electronic docket for all
IDOC employee-defendants and receives notices from the court about the case. Certain IDOC employee~defendants were
served soon after plaintiff filed this case.. IDOC has been receiving notices about the case from very early on in the
Proceedings. We do not know, however, when Smith left IDOC or in what manner and to what extent IDOC
communicates with employees (current and past) named in lawsuits.

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Minute Order Form (06/97)

United States District Court, Northern District of Hlinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Paul E. Plunkett than Assigned Judge
CASE NUMBER 01 C 7532 DATE 6/18/2004
CASE Catherine Fahy vs. James Pages, et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.) -
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
Q) o Brief in support of motion due
(3) Qo Answer brief to motion due . Reply to answer brief due
(4) Qo Ruling/Hearing on____set for at
(5) QO Status hearing[held/continued to] [set for/re-set for] on set for at :
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) oO Trial{set for/re-set fo;"] on at
(8) Qa [Bench/Jury trial] [Hearing] held/continued to at
(9) Qo This case is dismissec| [with/without] prejudice and without costs[by/agreement/pursuant to]
DOFRCP4(m) OLocal Rule 41.1 CFRCP41(a(t) [FRCPA1(a)(2).
(10) BS [Otherdocketentry] Enter Memorandum Opinion and Order. Defendant Smith’s motion to dismiss
(42-1) is denied.
dal) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
;

No notices required. number of notices

Document

Number

Notices mailed by judge’s staff.
Notified counsel by telephone.

JUN 2 1 2004

date docketed >

& deputy initials

Docketing to mail riatices.

Mail AO 450 form.
ran}
Copy to judge/magistrate judge.
) courtroom . wa , nana?
cw ‘deputy’s esa} Gh i Ade ow
initials
Date/time received in
PeMibe rnaifng deputy inials

5

“as ia


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CATHERINE FARY, individually and
as special administrator for the Estate
of DALE FAHY, deceased,

DOCKETED

JUN 2 1 2004

Plaintiff,

No. 01 C7532
Paul E. Plunkett, Senior Judge

ve

)
)
)
)
)
)
)

)
JAMES PAGE, warden at Stateville )
Correctional Facility, BARBARA )
MILLER and JOSEPH SMITH, medical )
directors at Stateville Correctional . )
Facility, STEVEN EISENBERG, )
director of psychology and or psychiatry )
at Stateville Correctional Facility, )
AMAR CHAWLA, doctor at Stateviile — )
Correctional Facility and JOHN DOE, )
correctional officer at Stateville )
Correctional Facility, )
)

)

Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Catherine Fahy has sued defendants under 42 U.S.C. § (“section”) 1983, alleging
that. defendants deprived Dale Fahy of his constitutional rights while he was in their custody.
Defendant Smith has filed a motion to dismiss under Federal Rule of Civil Procedure (“Rule”)

12(b)(5).. For the reasons set forth below, the motion is denied.

-l-

J


Discussion

The facts of this case are set forth in our Memorandum Opinion and Order dated May 6, 2004
(denying motions to dismiss of defendants Eisenberg and Page). We also provided a brief history
of the proceedings before this: Court, which we repeat here to the extent they pertain to Smith’s
motion to dismiss.

Plaintiff filed her complaint on September 28, 2001. The case was up for a status hearing
on May 21, 2003, and plaintiff failed to appear. We rescheduled the status hearing for June 4, 2003,
and warned that if plaintiff failed to appear then, thé case would be dismissed for want of
prosecution. Plaintiff failed to appear on June 4 and we dismissed the case. On June 16, 2003,
plaintiff moved to vacate the dismissal order. We granted plaintiff’s motion and the case was
reinstated on July 29, 2003.

Plaintiff's attomeys withdrew from the case in October 2003. At a status hearing on
November 12, 2003, attended by plaintiff's new counsel, we set a discovery schedule and gave
plaintiff additional time to serve any unserved defendants, including Smith. Smith was served on
December 22, 2003.

Smith has filed a motion to dismiss for insufficiency of process. He argues for dismissal on
the grounds that plaintiff did not satisfy the requirements of Rule 4(m) (neither the “good cause”
requirement nor the “excusable neglect” requirement”) to warrant an extension of time to effect
service. He also asserts that the delay in serving him has caused him prejudice.

Rule 4(m)’s 120-day time period for service is not an absolute. Under certain circumstances,
a.court may allow service to be made beyond that time frame. See Fed. R. Civ. P. 4(m) (stating that

if service is not made within 120 days after the filing of the complaint, the court may direct that

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