Rule 4(e) requires that a copy of the summons and complaint be delivered to an
individual defendant personally, left at his or her home “with some person of suitable age and
discretion then residing therein,” or left with an agent who has been authorized by appointment
or by law to receive service of process. See Klopas v. Fieldsheer Team Sports, Inc., No. 98 C
7427, 1999 WL 519299, at *1-2 (N.D. Ill. July 16, 1999). Plaintiffs claim that they tried to effect
service through the university administration and trustees who “flatly refused to accept service
attempted at the university’s quarterly board meeting of December 12, 2002.” PI. Mem. 48.
There has been no showing that any of the eight individuals was employed by the university at
that time, or that the university was ever authorized to accept service on their behalf. Plaintiffs
offer no explanation for their failure to attempt personal service in the manner permitted under
the federal rules.' Pl. Mem. 8; Fed. R. Civ. P. 4(e). Nor did they ever move for an extension of
time to serve these individuals. See, e.g., Fowler v, Heaton, No. 88 C 4778, 1989 WL 112770, at
*2 (ND. IIL. Sept. 21, 1989) (no good cause for delay in service where plaintiff “never once filed
for an extension of the time to serve the defendant, pursuant to Rule 6(b) of the federal rules”).

Nevertheless, plaintiffs are proceeding pro se and did make at least some effort to serve
the eight defendants in a manner they believed to be appropriate. See Ellis v. Welch, No. 92 C
4633, 1994 WL 87387, at *3 (N.D. Ill. Mar. 14, 1994) (“pro se status . . . entitles plaintiffs to a

certain degree of leniency in regard to service of process”). Indeed, the Attorney General’s office

' In their Writ of Mandamus in the Seventh Circuit Court of Appeals, plaintiffs
apparently argued that they could not serve certain “student Defendants” because they did not
know their academic schedules and could not “troll . . . several-hundred acres and literally dozens
of classrooms” to locate the individuals on campus. See Def. Reply 4. However, plaintiffs
made no showing of any actual attempt to locate the individuals either on campus or at their
places of residence.


“In the absence of any apparent or declared reason — such as undue delay, . . . undue prejudice to
the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the

om”

leave sought should, as the rules require, be ‘freely given.” Sanders v. Venture Stores, Inc., 56
F.3d 771, 773 (7 Cir. 1995). Moreover, “[i]t is, by now, axiomatic that district courts have a
special responsibility to construe pro se complaints liberally and to allow ample opportunity for
amending the complaint when it appears that by so doing the pro se litigant would be able to state
a meritorious claim.” Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7 Cir. 1996).
Defendants do not argue that plaintiffs have unduly delayed in seeking to file a third amended
complaint, that they will be unfairly prejudiced if amendment is allowed, or that plaintiffs will be
unable to state a meritorious claim through amendment. Def. Reply §6. Thus, plaintiffs should
be granted leave to file a third amended complaint by August 12, 2003.
B. Requirements for Amendment

Having said that, the Court notes that the proposed version of plaintiffs’ Third Amended
Complaint is deficient in certain respects and must be revised in accordance with this opinion.
First, plaintiffs admittedly never served a summons on the following eight defendants: Patricia
Carter, Donald Bell, Judy Young, Edward Kammer, Dorothy Ferguson, Ivy White, Claude Hill
and Steven O’Connor. Pl. Mem. 7. A plaintiff must serve a defendant with a complaint and
summons within 120 days after filing the complaint unless the plaintiff shows “good cause for
the failure.” Fed. R. Civ. P. 4(m). “Good cause means a valid reason for delay, such as the
defendant’s evading service.” Coleman v. Milwaukee Board of School Directors, 290 F.3d 932,
934 (7" Cir. 2002). In the absence of good cause, a court may still extend the time for service if

it finds “excusable neglect.” Jd.


is representing one of the unserved defendants, Judy Young, Moreover, given that the case is
still in its very preliminary stages, it is unlikely that any of the individuals would be harmed or
prejudiced by the delay in service. And the defendants who have been served already have not
suggested that they would be harmed by the delay either. See Coleman, 290 F.3d at 934 (most
courts would probably allow a late service where, among other things, “defendant does not show
any actual harm to its ability to defend the suit as a consequence of the delay in service”).
Overall, the balance of harms weighs in favor of allowing plaintiffs additional time to effect
service. Thus, plaintiffs should be granted until August 26, 2003 to serve Carter, Bell, Young,
Kammer, Ferguson, White, Hill and O'Connor with a summons and a copy of their third
amended complaint in accordance with Rule 4(e). Failure to properly serve these individuals by
that date may result in their dismissal from this lawsuit with prejudice.

Second, to avoid confusion, plaintiffs should make all factual allegations in the main text
of the complaint and should not include any facts or assertions in footnote form.

CONCLUSION

For the reasons stated above, plaintiffs should be granted 14 days until August 5, 2003 to
file a third amended complaint in accordance with this opinion, including service of process upon
the eight as yet unserved defendants by August 26, 2003. The defendants who have already
received a summons will then have 10 days from the date of service of the third amended
complaint to answer or otherwise plead, as requested. Def. Reply 6; Fed. R. Civ. P. 15(a).
Defendants who have not yet been served with a summons will have 20 days from the date of

service of process and the third amended complaint to answer or otherwise plead, as provided in


‘Minute Order Foem (06/97)

United States District Court, Northern District of Hlinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Ronald A. Guzman than Assigned Judge Nan R. Nolan
CASE NUMBER 02 C 7707 DATE 7129/2003
CASE Porche vs. Oden
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:

ql) o Filed motion of [ use listing in “Motion” box above.}

(2) Oo Brief in support of motion due

(3) a Answer brief to motion due . Reply to answer brief due. .

(4) oO Ruling/Hearing on set for at

(5) ia) Status hearing[held/continued to] [set for/re-set for] on. set for at

(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at .

(7) o Trial[set for/re-set for] on at

(8) Qa [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) © Local Rule 41.1 O FRCP41(a)(1) OO FRCP41(a)(2).

(10) a [Other docket entry] For the reasons stated in the attached Report and Recommendation, this court recommends
that Defendants’ Second Motion for a More Definite Statement [26-1] be denied as moot. Plaintiffs should be granted 14 days.
until August 5, 2003 to file a third amended complaint in accordance with this opinion, including service of process upon the
eight as yet unserved defendants by August 26, 2003. Defendants who have already received a summons will then have 10
days from the date of service of the third amended complaint to answer or otherwise plead, as requested. Defendants who have
not yet been served with a summons will have 20 days from the date of service of process and the third amended complaint
to answer or otherwise plead, as provided in Rule 12(a),

(iil) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required,

a | Notices mailed by judge’s staff.

Notified counsel by telephone. —

Docketing to mail notices.

Mail AO 450 form,

Copy to judge/magistrate judge.
an dove iy
courtroom
cav deputy’s
initials
Date/time received in
central Clerk's Office



Rule 12(a). Defendants’ Second Motion for a More Definite Statement (Docket Entry #26-1)
should be denied as moot.

Counsel has ten days from the date of service of this Court’s Report and
Recommendation to file objections with the Honorable Ronald A. Guzman. See Fed. R. Civ. P.
72(b); 28 U.S.C. §636(b)(1). Failure to object constitutes a waiver of the right to appeal.
Lorentzen y. Anderson Pest Control, 64 F.3d 327 (7" Cir. 1995).

Me R. NOLAN r=

United States Magistrate Judge
Dated: July 29, 2003


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

EASTERN DIVISION
SENI PORCHE, MARGARET L. HOSTY, )
and d/b/a GSU INNOVATOR, )
)
Plaintiffs, )
)
vs. ) Case No. 02 C 7707
, Q
ROGER ODEN, et al., ) 4 OCKE Tg 7
Defendants. ) L so 2003

REPORT AND RECOMMENDATION

Plaintiffs Jeni Porche, Margaret L. Hosty, and d/b/a GSU Innovator filed a pro se
complaint against 13 defendants, alleging violations of the First, Fourth, Fifth, Sixth, Eighth and
Fourteenth Amendments (Counts I through V1), Defamation (Slander and Libel) (Count vit,
Invasion of Privacy (Actual and False Light) (Count VII), violation of the Open Meetings Act
(also styled Count VIII), Civil Conspiracy (Count LX), Equitable Relief (Count X), and Punitive
Damages (Harassment) (Count XI). On December 12, 2002, plaintiffs filed their First Amended
Complaint, naming 16 additional defendants. On February 28, 2003, defendants filed a Motion
for a More Definite Statement, arguing that plaintiffs’ 31-page, 12-count, 183-paragraph
complaint failed to specify which counts applied to which defendants, included 33 conclusory
and argumentative footnotes, and overall “commingle{d] various theories and individuals so as to

make responsive pleading impossible.” See Brainerd v. Potratz, 42\ F. Supp. 836, 839 (N.D. Ill.

x

1976). The District Court granted defendants’ motion on March 6, 2003.



On March 20, 2003, plaintiffs filed a Second Amended Complaint, prompting defendants
to file a Second Motion for a More Definite Statement on March 31, 2003. Rather than respond
to defendants’ motion, plaintiffs attempted to file a Third Amended Complaint. Defendants
objected on procedural grounds and also claimed that eight defendants were never properly
served with a summons. In response, plaintiffs filed a motion seeking, among other things, to
suspend proceedings pending an appeal on the issue of proper service. The matter has been
teferred to this Court for a Report and Recommendation.

DISCUSSION

Plaintiffs ask the Court to treat their Third Amended Complaint as their “affirmative
response (to defendants’ motion for a more definite statement], consenting to Defendant’s
motion for amendment.” Pl. Mem. 96. Contrary to plaintiffs’ suggestion, however, defendants’
motion constitutes neither a motion for an amendment not written consent to amendment. See
Fed. R, Civ. P. 12(e), 15(a). Thus, the Court will treat plaintiffs’ submissions as a motion for
leave to file a third amended complaint and first consider whether such a motion should be
granted. See, e.g., Porm v. Peters, 996 F.2d 1219 (7 Cir. 1993) (“Rule 15(a) does not state that
a request for leave to amend a complaint must be made by formal motion”); Lloyd v. O’Brien,
No. 84 C 6142, 1986 WL 7338, at *1 (N.D. IIL. June 26, 1986) (treating plaintiffs response to a
motion to dismiss, filed together with a proposed second amended complaint, as an implied
motion for leave to amend the complaint),

A. Leave to Amend
Rule 15(a) provides that a court should freely grant leave to amend a complaint “when

justice so requires.” See 188 LLC v. Trinity Industries, Inc., 300 F.3d 730, 739 (7 Cir. 2002).