Illinois Supreme Court Rule 103(b) provides, “If the plaintiff fails to exercise reasonable
diligence to obtain service on a defendant, the action as to that defendant may be dismissed
without prejudice, with the right to refile if the statute of limitation has not run.” The rule does
not state a specific time limitation within which the defendant must be served. However, the rule
“has an essential purpose in promoting the expeditious handling of suits by giving trial courts
wide discretion to dismiss when service is not effected with reasonable diligence." Kreykes Elec.,
Inc. v. Malk and Harris, 697 N.E.2d 885, 888 (Ill. App. 1* Dist. 1998). Rule 103(b) is not rooted
in a subjective test of the plaintiff's intent but rather upon an objective evaluation of reasonable
diligence in obtaining service of process. Marks v. Reuben H. Donnelly, 636 N.E.2d 825, 829
(IL. App. 1* Dist. 1994).

In Segal v. Sacco, the Illinois Supreme Court delineated a seven-factor test for
determining whether a plaintiff exercised reasonable diligence in serving a defendant. The
factors are (1) the length of time used to obtain service of process; (2) the activities of the
plaintiff; (3) the plaintiff's knowledge of the defendant's location; (4) the ease with which the
defendant's whereabouts could have been ascertained; (5) actual knowledge on the part of the
defendant of the pendency of the action; (6) special circumstances which would affect the
plaintiff's efforts; and (7) actual service on the defendant. 555 N.E.2d 719, 720 (1990).

Voogd filed her suit in state court on June 5, 2002. Pavilion accepted service through its
counsel on August 7, 2003. Voogd does not dispute that she made no effort to serve Pavilion

during the intervening fourteen months.! She contends, however, that her delay was inadvertent,

'Voogd contends that “it is not accurate to argue, as does Defendant, that Plaintiff did ‘nothing’ to
prosecute her case.” (PI. Resp. to Def. Mot. To Dismiss, at 5.) However, Pavilion is not arguing that Voogd did
nothing to prosecute her case. Rather, Pavilion contends that Voogd did nothing to effect service on Pavilion, and

4


However, the 90-day limit on filing suit after receipt of the right to sue letter is subject to
equitable tolling in appropriate circumstances.” For equitable tolling to apply, a plaintiff must
show (1) excusable ignorance of or non-compliance with the limitations period, with no
prejudice to defendant, or (2) affirmative misconduct of defendant that lulled the plaintiff into
inaction. Payne v. Cook County Hospital, 719 F. Supp. 730, 732 (N.D. Ill., 1989). Voogd argues
that the first consideration entitles her to equitable tolling of the statute of limitations. However,
Voogd was not ignorant of the limitations period; she filed her complaint in state court within
ninety days of receiving her right to sue letter from the EEOC. Rather, she was ignorant of the
requirement that she serve her complaint on Pavilion. As explained above, ignorance of this
requirement is not “excusable” under Illinois law. Steinbrecher, 759 N.E.2d at 518; see also
Harvey, 453 N.E.2d at 823. Thus, Voogd is not entitled to equitable tolling of the ADA’s statute
of limitations.

CONCLUSION
For the reasons stated above, Pavilion’s motion to dismiss is granted [#11]. Case is

dismissed with prejudice.

JOAN HUMPHREY LEFKOW
United States District Judge
Dated: April 23, 2004

*Citing Smith v. Chicago Heights, 951 F.2d 834, 838 (7"* Cir. 1992), Pavilion argues that equitable tolling
is inapplicable here because the ninety day filing period for ADA actions is a jurisdictional requirement and
equitable tolling does not apply to statutes of limitations that are jurisdictional rather than procedural. However, in
Zipes v. TransWorld Airlines, Inc., the Supreme Court held that the requirement that a charge be filed with the
EEOC within 180 days of the alleged discriminatory act is not a jurisdictional prerequisite to bringing suit and is
therefore subject to equitable tolling. 455 U.S. 385 (1982), In St. Louis v. Alverno College, the Seventh Circuit held
that the Supreme Court’s rationale in Zipes also applied to the 90-day limit of § 2000e-S(f)(1), 744 F.2d 1314, 1316
n.2 (7" Cir. 1984). Thus, Pavilion’s argument fails.


defendant’s removal of the case did not waive its right to assert lack of personal jurisdiction.”
The court nevertheless declined to dismiss the state action for lack of timely service, holding that
28 U.S.C. § 1448 provided Voogd with 120 days from the date of removal to ensure proper
service on Pavilion. Because the state action survived the motion to dismiss, the court dismissed
the federal action as superfluous.

On August 7, 2003, Pavilion’s counsel agreed to accept service. On September 3, 2003,
Pavilion filed the instant motion to dismiss.

DISCUSSION

Pavilion contends that Voogd’s complaint should be dismissed pursuant to Illinois Rule
103(b) because Voogd failed to exercise reasonable diligence to obtain service on Pavilion from
June 5, 2002, when she originally filed the state action, until August 7, 2003, when Pavilion’s
counsel agreed to accept service. Pavilion also contends that the facts do not warrant equitable
tolling of the statute of limitations either to defeat the motion to dismiss or to revive the
previously dismissed federal action.

The Seventh Circuit has held that a suit initially filed in state court and subsequently
removed to federal court may be dismissed pursuant to state procedural rules regarding delays in
service of process. Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122-23 (7" Cir. 2001); see
also Allen v. Ferguson, 791 F.2d 611, 616 n.8 (7" Cir. 1986)(“(I]Jn determining the validity of
service prior to removal, a federal court must apply the law of the state under which the service
was made... .”). Thus, the court applies Illinois law to determine whether Voogd’s case must be

dismissed because of her delay in obtaining service on Pavilion.



resulted in no prejudice to defendants and that under her unique circumstances she exercised
reasonable diligence.

First, Voogd argues that, because of her pro se status, “she did not understand what was
required of her to effect service.” (PI. Resp. to Def. Mot. To Dismiss, at 4; see also Voogd
Affidavit | 4.) However, under Illinois law, “pro se litigants are presumed to have full
knowledge of applicable court rules and procedures.” Steinbrecher v. Steinbrecher, 759 N.E.2d
509, 518 (Ill. 2001); see also Harvey v. Carponelli, 453 N.E.2d 820, 823 (Ill. App. 1" Dist.
1983)(“This court will not apply a more lenient procedural standard to pro se litigants than is
generally allowed attorneys.”). Thus, Voogd cannot avoid the consequences of her delay in
serving Pavilion by claiming ignorance of Illinois rules governing service of process.

Voogd’s argument that her delay in service did not prejudice Pavilion also fails. The
burden rests with the plaintiff to demonstrate reasonable diligence in effectuating service, and the
defendant is not required to establish that it was prejudiced by plaintiff's delay. Billerbeck v.
Caterpillar Tractor Co., 685 N.E.2d 1018, 1020 (Ill. App. 4" Dist. 1997). While lack of
prejudice may be a relevant consideration in the determination of whether a plaintiff exercised
reasonable diligence, it is but one factor in the analysis. Kreykes, 697 N.E.2d at 1021. Here, the
lack of prejudice to Pavilion is scarcely sufficient to overcome Voogd’s failure to make any
efforts to serve Pavilion for well over a year.

Finally, Voogd argues that her disorder “affected her ability to follow through on the
tasks necessary to assure that Defendant was properly served.” (Pl. Resp. to Def. Mot. To

Dismiss, at 7-8.) However, Voogd’s own affidavit demonstrates that her disorder had nothing to

Voogd does not contend otherwise.


2 Order Form (06/97)
os

i A United States District Court, Northern District of Illinois

f Assigned Jud Sitting Judge if O1
iy a Judge Joan H. Lefkow than Assigned Judge
CASE NUMBER 03 C 2465 DATE 4/23/2004
CASE Voogd vs. Pavilion Foundation
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
of the motion being presented.)

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

@) oO Answer brief to motion due___. Reply to answer briefdue__.

(4) o Ruling/Hearing on setfor___at

(5) o Status hearing[held/continued to] [set for/re-set for]on__—sset for saat

(6) oO Pretrial conference{held/continued to] {set for/re-set for]on___—setfor__—sat_

7) oO Trial[set for/re-set for]on___at

(8) i) [BenchyJury trial] [Hearing] held/continued to__at

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

OOFRCP4(m) Local Rule 41.1 CIFRCP41(a)(1) [OFRCP41(a)(2).

do) ff [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in the
Memorandum Opinion and Order, defendant’s motion to dismiss [11-1] is granted. Case dismissed with
prejudice.

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

‘No notices required, advised in open court
a

No notices required.
otices req number of notices:

oY | Notices mailed by judge's staff.

Notified counsel by telephone. A

Docketing to mail notices.

Y | Mail AO 450 form.

Copy to judge/magistrate judge.

dave mailed notice

courtroom
MD deputy’s
initials

Date/lime received in
+_central Clerk’s Office mailing deputy initials



do with her failure to serve Pavilion. Voogd states, “I did not realize that I had to take further
steps to have the Sheriff serve the Defendant New Choice Program / Pavilion Foundation. I had
no knowledge that I would have to find the Defendants’ registered agent or have the Defendant
served by the Sheriff in Champaign, Illinois.” (Voogd Aff. | 4.) If Voogd did not know that she
was required to serve Pavilion, then her disorder is irrelevant. It could not have played a role in
preventing her from accomplishing a task she was not aware she was required to perform.

Voogd is correct that the determination of whether a plaintiff has exercised reasonable
diligence is a fact-intensive inquiry suited to balancing, not one in which there is a bright line.
(Pl. Resp. to Def. Mot. To Dismiss, at 7.) Here, however, one side of the scale is empty. Voogd
failed to take any efforts to serve Pavilion for over a year. Her only excuse is that she was not
aware of the applicable rules, an irrelevant consideration under Illinois law. Thus, the court
holds that she failed to exercise reasonable diligence.

Because Voogd failed to exercise reasonable diligence, Rule 103(b) provides that the
action “may be dismissed without prejudice, with the right to refile if the statute of limitation has
not run.” The ADA incorporates Title VII’s statute of limitations. 42 U.S.C. § 12117; Kennedy
v. Chemical Waste Mgmt., Inc., 79 F.3d 49, 50 (7"" Cir. 1996). Thus, an ADA plaintiff has ninety
days from the receipt of the right to sue letter from the EEOC to file suit. 42 U.S.C. § 2000e-
5((1). Voogd received her right to sue letter on March 21, 2002. The statute of limitations

period expired on June 19, 2002.


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JOANNE VOOGD, )
)
Plaintiff, ,)
)
v. ) No. 03 C 2465
) Judge Joan H. Lefkow
PAVILION FOUNDATION, )
) DOCKETED
Defendant. ) APR 2 6 2004

MEMORANDUM OPINION AND ORDER

Plaintiff, Joanne Voogd (“Voogd”), initially filed this action against defendant, Pavilion
Foundation (“Pavilion”), in the Circuit Court of Cook County, Illinois, alleging that Pavilion
wrongfully discharged her in retaliation for having requested accommodations for an alleged
disability in violation of the Americans With Disabilities Act, 42 U.S.C. § 12101 et seg.
(“ADA”). Pavilion subsequently removed the case to this court. Before the court is Pavilion’s
Motion to Dismiss the action pursuant to Illinois Supreme Court Rule 103(b) because of Voogd’s
failure to diligently serve Pavilion. For the reasons stated below, the court grants the motion.

PROCEDURAL HISTORY

Voogd was dismissed from her employment with Pavilion on December 19, 2000. On
June 18, 2001, she filed a charge of discrimination with the Illinois Department of Human Rights
and the Equal Employment Opportunity Commission (“EEOC”), alleging that she was
discharged because of her disability -- she alleged that she had Attention Deficit / Hyperactivity
Disorder -- and in retaliation for having requested accommodations for that disability. The

EEOC issued a right to sue letter on March 21, 2002.


Following advice she received in a phone call to the EEOC, Voogd filed a complaint for
disability discrimination and retaliatory discharge in the Circuit Court of Cook County on June 5,
2002 (the “state action”). Voogd never served nor attempted to serve summons or the complaint
on Pavilion.

After speaking with an attorney, Voogd filed a complaint in federal district court on
January 2, 2003 (Case No. 03 C 25) (the “federal action”). That complaint paralleled the
allegations set forth in the state action. Voogd moved to proceed in forma pauperis and the
motion was granted on February 12, 2003. Asa result, the U.S. Marshal was directed to serve
Pavilion with summons and complaint and did so on February 24, 2003.

Pavilion filed a motion to dismiss the federal action because the pleadings demonstrated
that Voogd did not file suit within ninety days of receiving the EEOC’s right to sue letter. After
Pavilion filed the motion to dismiss, Voogd, who was proceeding pro se, telephoned Pavilion’s
counsel and informed counsel of the previously filed and still pending state action. This was
Pavilion’s first notice of the state action, On April 10, 2003, Pavilion removed the state action to
federal district court (Case No. 03 C 2465). On April 24, the court found the federal action and
the state action related.

On May 14, 2003, this court denied Pavilion’s motion to dismiss the federal action,
holding that Pavilion waived any right to object to personal jurisdiction with respect to the state
action by failing to file a responsive pleading within 20 days of removal, as required under Rule
81(c) of the Federal Rules of Civil Procedure. On July 21, 2003, the court granted Pavilion’s
motion to reconsider and vacated the May 14, 2003, order. The court agreed with Pavilion that

“because defendant was never served with the complaint and summons [in the state action],