officers now move for dismissal of the case on the basis that the DeJesuses failed to
exercise reasonable diligence to obtain service.
LEGAL STANDARD

Normally, a federal court applies federal rules of procedure, even in considering
a state-law cause of action. Hanna v. Plumer, 85 S.Ct. 1136, 1141 (1965). In this case,
Fed. R. Civ. Proc. 4(m) would govern timeliness of service, which provides a defendant
must be served within 120 days from the filing of the complaint. However, in cases
removed from state court, state rules regarding service apply even in the federal

proceeding. McKenna v. Beezy, 130F.R.D. 655, 656 (N.D. Ill. 1989); see also Schmitz

y. Campbell-Mithun, Inc., 124 F.R.D. 189, 192-93 (N.D. Ill. 1989). Unlike the federal
tule, the Illinois rule governing time for service does not set out a specific period within
which a plaintiff must effect service. Ill. Sup. Ct. R. 103(b). The rule provides that
defendants must “use reasonable diligence” in serving defendants after the complaint
is filed. Id. Illinois courts construing this rule have interpreted it to mean that a
plaintiff must exercise due diligence in his or her service efforts. Kole v. Brubaker, 759
N.E.2d 129, 133-34 (Ill. App. Ct. 2001). The standard applied is an objective one, and
each case turns on its individual facts and circumstances. Id.

If the court determines that a plaintiff has not acted diligently, the court may

dismiss the action on motion or sua sponte. Ill. Sup. Ct. R. 103(b); Marks v. Reuben


anything but diligence. The proper course of action for a plaintiff encountering
unexpected obstacles in obtaining service is to redouble efforts and take prompt steps
to ascertain a sufficient means of carrying out the obligation to serve a defendant. See,
e.g., Segal, 555 N.E.2d at 721 (finding plaintiff acted diligently in effecting service in
less than a week after realizing 19-week delay since filing of complaint). The
combination of these two factors inescapably indicates that the DeJesuses did not act
diligently in serving the officers, and dismissal of those parties is therefore appropriate.
Furthermore, because the 17-month delay extended five months beyond the expiration
of the statute of limitations, we agree with the officers that dismissal with prejudice is
warranted. Ill. Sup. Ct. R. 103(b); Rice v. Ford Motor Co., 736 N.E.2d 1145, 1147-49
(Ill. App. Ct. 2000).
CONCLUSION
Based on the foregoing analysis, Defendants Jeschke, Conroy, Martin, and

Kowalski are dismissed with prejudice.

tl OE ee

Charles P. Kocoras
United States District Judge

Dated: June 26, 2002



knowledge of a pending suit is a factor a court will consider in deciding whether a

plaintiff has been diligent in obtaining service. Farthing v. Natural Gas Pipeline Co.,

393 N.E.2d 683, 686 (Ill. App. Ct. 1979). However, the DeJesuses have offered up
nothing but their own belief that the officers must have caught wind of the attempts at
service through their fellow officers, making a conclusion of actual knowledge a stretch
at best. Moreover, even assuming that the officers had learned of the suit, that
knowledge does not necessarily translate into a conclusion that the DeJesuses acted

diligently, precluding dismissal under Rule 103(b). Kole, 759 N.E.2d at 136.

Second, the DeJesuses claim that the delay in effecting service in this case does
not evidence a lack of diligence because they did not know where the officers could be
located and that their efforts to ascertain the proper location were thwarted by
misinformation they received from Police Department representatives. There does seem
to have been inconsistencies in the directions the DeJesuses were given. However,
despite these conflicting statements, the DeJesuses changed neither their methods of
trying to ascertain the proper location and procedure for serving the officers, nor did the
statements prompt them to follow up in a more persistent fashion. In light of their
reaction, we cannot conclude that the inaccuracy of the police representations impacted

on the DeJesuses’ diligence or lack thereof.


H. Donnelly, Inc., 636 N.E.2d 825, 829 (Ill. App. Ct. 1994). Moreover, if the statute

of limitations for the underlying action has expired, the court may also in its discretion

dismiss with prejudice. Allen v. Thorek Hospital, 656 N.E.2d 227, 234 (Ill. App. Ct.

1995). With these standards in mind, we now turn to the officers’ motion.
DISCUSSION

Although the applicable state standard means that each case will necessarily be
unique, Illinois courts use several factors to guide their analysis of whether a plaintiff
acted diligently. They include length of delay in service, plaintiff's activities, plaintiffs
knowledge of defendant’s location, ease with which defendant’s whereabouts could be
ascertained, defendant’s actual knowledge of the pending action, and special
circumstances which could affect plaintiff's efforts. Segal v. Sacco, 555 N.E.2d 719,
720 (Ill. 1990). As the plaintiffs, the DeJesuses bear the burden of proving that they
have exercised reasonable diligence in obtaining service. Piscitello v. Barton, 384
N.E.2d 47, 49 (Ill. App. Ct. 1978).

According to the DeJesuses, the proper balance of these factors weigh in their
favor. In support of their contention, they point to the factors of knowledge, ease of
determining the officers’ whereabouts, and special circumstances. First, they insist that
the officers must have been aware of the lawsuit as early as July 2001, making service

more of a formality than a true requirement in this case. A defendant’s actual


In total, the DeJesuses took 17 months to effect service and did so only after the Circuit
Court’s final deadline for service had come and gone. Kole, 759 N.E.2d at 134 (eight
months between filing of complaint and service of process); Billerbeck v. Caterpillar
Tractor Co., 685 N.E.2d 1018, 1021 (Ill. App. Ct. 1997) (thirteen months); Paglis v.

Black, 534 N.E.2d 206, 208 (Il. App. Ct. 1989) (five and a half months); Penrod v.

Sears, Roebuck & Co., 501 N.E.2d 367, 369 (Ill. App. Ct. 1986) (eight months). The

length of delay weighs against a conclusion of diligence.

Focusing on the actions taken to effect service, the sum total of the DeJesuses’
efforts in this case consist of five sporadic attempts at service spread over 17 months
and searches of telephone books and Internet databases. None of the failed attempts or
their accumulation spurred faster, more comprehensive, or more frequent attempts at
service, even after the case was first dismissed by the Circuit Court. As another court
aptly stated, plaintiffs who lollygag in alerting a defendant of a pending suit have no

one but themselves to blame for the consequences. Serlin v. Arthur Andersen & Co.,

145 F.R.D. 494, 498 (N_D. Il. 1993); see also Piscitello, 384 N.E.2d 47, 50 (Ill. App.
Ct. 1978). Halfhearted attempts whose impetus stems more from a court’s prodding

than an interest in actively pursuing vindication of one’s rights leave an impression of
Ip!

The DeJesuses have offered nothing to indicate a contrary inference, and we are
therefore left with the February dates on which service was actually completed with
respect to the three officers who have been served.

-8-


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Charles P. Kocoras Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 1685 DATE 6/26/2002
CASE DeJesus et al vs. Jeschke et al
TITLE

{In the following box (a) indicate the party filing the motion, ¢g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

(1) ff

MOTION:

DOCKET ENTRY:

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

(2) Qo Brief in support of motion due

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

(4) i) Ruling/Hearingon set for at

(5) Oo 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) a Trial[set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued toa

(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(n) CGeneral Rule21 CIFRCP41(a)(1)  FRCP41(a)(2).

(0) sof [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: Certain defendants’

motion (Doc 6-1) to dismiss is granted. Defendants Jeschke, Conroy, Martin and Kowalski are dismissed
with prejudice. Plaintiffs are given to July 3, 2002 to file their motion to, substitute the City of Chicago
for City of Chicago Police Department as a named defendant. Answer to said motion due July 17, 2002.
No reply. The Court will rule by mail.

[For further detail see order attached to the original minute order.]

No notices required.

Mail AO 450 form,

No notices required, advised in open court.

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

Docketing to mail notices.

Copy dg judge.

SCT

number of novi

Zt

date docketed

eypfefdgouty initials

CL

date mailed notice

courtroom
deputy’s
initials

\e Téceived in
mailing deputy initials

central Clerk’s Office.



Finally, the DeJesuses argue that this case involved special circumstances
because the officers work extensively outside of police stations, thereby thwarting
efforts by the DeJesuses to effect service. However, this argument is without merit; the
officers were to be served through Police Headquarters, which is located at a fixed
position and continually staffed. Whatever difficulties that may be presented by the
specific situation of individual officers, those difficulties presented no obstacle to
service in this case.

The officers focus on the remaining factors, which overwhelmingly indicate that
the DeJesuses did not act with diligence. First, the length of delay in this case is
substantial. The events giving rise to this suit took place in September 1999. The
complaint was filed a year later, and three more months elapsed before the first attempt
at service. Four additional months went by before the second attempt. Each of the next
two failed attempts took three months each to organize, and four more months passed

between the fourth attempt and the finally successful fifth attempt in February 2002.’

'The DeJesuses contest the use of the February dates, arguing instead that the
operable date fell at the end of November 2001 when they allege they were told that
“service of process will be waived.” When a waiver of service is filed by the plaintiff
with the court, the action shall proceed as if summons and complaint had been served
at the time of filing of the waiver, and no proof of service shall be required. § 735
ILCS 5/2-213. Whether or not waivers are promised, they must be filed with the circuit
court before they relieve a plaintiff of service obligations. Given that the Circuit Court
entered an order setting January 25, 2002 as the final deadline for service in this case,
we can infer that the DeJesuses never filed a waiver with the court before that date.

-7-


through central headquarters. On April 6, the DeJesuses’ attorney filed an Affidavit of
Diligence in Service of Process, explaining The DeJesuses’ attempts to locate and serve
the officers.

The third attempt at service occurred through Chicago Police Department
Headquarters on July 6, 2001, approximately nine months after the filing of the
complaint. The DeJesuses did not effect service and remarks on summons state that the
individual officers were not at that location. On July 20, the DeJesuses’ attorney filed
another Affidavit of Diligence in Service of Process, alleging that the officers had
learned of this matter due to the attempts at service.

On September 21, the DeJesuses made yet another unsuccessful attempt at
service, this time at City Hall, and the Circuit Court dismissed the case for want of
prosecution on October 19. The DeJesuses moved to reinstate the case on November
9, 2001, and filed a third Affidavit of Diligence in Service of Process on November 27.
This affidavit alleges that all attempts at service failed but that Corporation Counsel for
the City had stated on November 26 that “service will be waived.”

The Circuit Court’s final progress order set January 25, 2002, as the final date to
effect service upon as yet any unserved defendants. Finally, a Certificate of Service

was filed on April 19, 2002, and the instant case was removed to this court. The


BACKGROUND

On July 31, 1999, PlaintiffElvia DeJesus executed a rental agreement for a motor
vehicle from Budget Rent-A-Car Corporation (“Budget”). On or about August 13,
1999, Budget reported the rental vehicle as stolen to the Chicago Police Department.
On September 4, 1999, the officers discovered the DeJesuses within the rental vehicle,
placed them under arrest, and subsequently detained them. They allege that they were
verbally abused, prevented from contacting their family members, and otherwise abused
and mistreated by the officers.

On September 5, 2000, the DeJesuses filed a complaint against the officers, the
City of Chicago, Budget, and a fourth officer in the Circuit Court of Cook County,
alleging false arrest, malicious prosecution, and civil rights violation through 42 U.S.C.
§ 1983. The DeJesuses first attempt to obtain service on the officers occurred on
November 21, 2000, at the officers’ place of employment at 5555 W. Grand Avenue,
Chicago. The DeJesuses failed to effect service and were informed that the officers are
employed at the 17th District rather than at the Grand Avenue address. The Circuit
Court entered a progress call order on January 8, 2001, setting April 6 as the final date
for service of summons upon any as yet unserved defendants. The DeJesuses again
unsuccessfully attempted service on March 19, 2001 at the 17th District station at 4461

N. Pulaski, Chicago, Illinois, and were informed that service on the officers must occur


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

VIVIAN DEJESUS and ELVIA DEJESUS,
Plaintiffs,
vs.

)
)
)
)
)
)
OFFICER R. JESCHKE (#5103), )
OFFICER PATRICK CONROY (#9514) )
OFFICER D. KOKWALSKI (#18713) ) 02 C 1685
OFFICER T. MARTIN (#14313) )
individually and as Chicago police )
officers and agents of the CITY OF )
CHICAGO POLICE DEPARTMENT, )
and BUDGET RENT-A-CAR CORPORATION, _ )
a Delaware corporation, )

)

)

Defendants.

MEMORANDUM OPINION ys?

CHARLES P. KOCORAS, District Judge:

This matter is before the court on the motion of Defendants Jeschke, Conroy, and
Martin (“the officers”) to dismiss them from the complaint of Plaintiffs Vivian DeJesus
and Elvia DeJesus (“the DeJesuses”) pursuant to Rule 12(b)(5) and Illinois Supreme

Court Rule 103(b). For the reasons set forth below, the motion is granted.