* . Minute Order voorm (06/97)

(9

United States District Court, Northern District of Illinois
Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 01 C 839 DATE 2/8/2002
CASE 3COM Corp. Vs. Elizabeth Gilbert
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.]
Memorandum Opinion and Order

DOCKET ENTRY:

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

(2) o Brief in support of motion due

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

(4) Oo 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 for] on at

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

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

COFRCP4(m) OGeneral Rule 2! CFRCP41(a)\(1) OO FRCP41(a)(2).

(10) MW [Other docketentry] Enter Memorandum Opinion and Order. Plaintiff now seeks fees of $13,056.50
and costs of $2,252.70, pursuant to Rule 4(d)(2) and (5) of the Federal Rules of Civil Procedure. The
motion is granted, and fees and costs in the amount of $15,309.20 are awarded.

di) (For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required, umber ot Yices
Notices mailed by judge's staff. FEB 11 2002
Notified counsel by telephone. date docketed
oY | Docketing to mail notices. 7 4
Mail AO 450 form. - amyeig’s’ L ¢ :
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Copy to judge/magistrate judge. Lunn VAIS
7EB 4 1 2002

date mailed notice

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
3COM CORPORATION,
Plaintiff,

vs.

ELIZABETH GILBERT,

we SS SDS

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff in 1999 sued Electronic Recovery Specialists, Inc. (ERS), its president Davis
Gilbert, and a supervisor of the company. In February 2001, Elizabeth Gilbert (Elizabeth),
secretary and an owner of ERS, and wife of Davis Gilbert, was named as a defendant in this
separate lawsuit and it was deemed a related case. The Declaration of Anthony J. Carballo
details the substantial efforts to serve Elizabeth both at her home in Wilmette, Illinois, and
at the business in Niles — some 16 attempts. Those efforts were unsuccessful, and Elizabeth
then moved to Phoenix, Arizona. After several unsuccessful attempts at her home there,
plaintiff finally, on August 21, 2001, sent a Notice of Lawsuit and Request for Waiver of
Service of Summons. The waiver was not returned. Thereafter, according to the Carballo
Declaration, plaintiff sought on numerous occasions by means of the Maricopa Sheriff’s
Department and a private investigator to serve Elizabeth but they too were unsuccessful.
Finally, plaintiff served Elizabeth by alternate means.

Plaintiff now seeks fees of $13,056.50 and costs of $2,252.70, pursuant to Rule 4(d)(2)
and (5) of the Federal Rules of Civil Procedure. That rule directs that the court “shall”
include fees and costs incurred to effect service after a failure to comply with a request for

waiver “unless good cause for the failure be shown.” The motion is granted, and fees and

No. 01 C 839 DO pyr...


No. 01 € 839 Page 2

costs in the amount $15,309.20 are awarded.

Elizabeth, for good cause, represents that because of personal problems, namely the
death of her mother, the illness of her father, a pending divorce and her move to Arizona, she
did not pay much attention to her mail during 2001, and was not aware of this lawsuit until
October of that year. Even if that were true, it would not constitute good cause. The expense
of her inadvertence should be borne by her, not the plaintiff. Moreover, those
representations lack credibility. Plaintiff is not seeking fees and costs for any of the numerous
attempts in [linois and in Arizona prior to the expiration of the return of waiver period. But
those attempts and the subsequent efforts lead to a firm conviction that Elizabeth was
ducking service. And we are satisfied, based upon plaintiff’s explanation in its reply brief,
that the fees both in time and rate are reasonable. Indeed, they are far less than plaintiff's

actual expense in effectuating service.

JAMES B. MORAN

ior Judge, U. S. District Court
FAQ. & 2002.