Complaint on June 30, 2003, well beyond the allowable 120 days’. Although this Court
in Aviles recognized its authority to dismiss the matter against the unknown defendants,
it chose to grant an enlargement of time to identify and serve the John Does. Id. at 568.
In support of its decision the Court explained that the discovery undertaken by the
plaintiff remained outstanding at the time that other defendants filed a motion to dismiss.
Id. In contrast, Harrell states that he learned the identities of some of the Does by
examining the exhibits attached to GM’s motions. GM’s latest motion was filed on
November 30, 2002, and yet Harrell did not file his Motion to Amend until June 30,
2003. Based on this unexplained delay, this Court dismisses the action against the Does.
Furthermore, even if Harrell’s Amended Complaint was accepted as timely,
dismissal would still be proper as any effort to amend would be futile. Harrell correctly
cites the Seventh Circuit’s determination that a plaintiff may amend his complaint in
accordance with the Federal Rules of Civil Procedure 15(a) and without leave of the court

any time before a responsive pleading. Fuhrer v. Fubrer, 292 F.2d 140, 142 (ca Cir.

1961). However, the court may deny the amendment if it will not survive a motion to

dismiss. Perkins v. Silverstein, 939 F.2d 463, 472 (7 Cir. 1991). In this case, it was

previously determined that the counts in the Amended Complaint are insufficient because
the breach of contract claims are time barred; Harrell waived his right to contest the
Stockholder’s Agreement; and he is not a third party beneficiary to the Asset Purchase
Agreement between GM and Bower. Although Harrell’s Motion for Clarification states

that the individual claim for breach of contract against GM employee Lee McDaniels is

‘ This Court’s original Order of September 16, 2003, stated that Harrell’s Motion to
Amend his Complaint was filed on July 16, 2003. Harrell’s Motion to Amend his
Complaint was actually filed on June 30, 2003.


*

against Bower and made himself unavailable for service. Therefore, service upon Miguel
Torriss, the doorman of Jacobs (Bower’s registered agent), was sufficient.

However, although Bower was properly served, it was a fraudulently joined
defendant because Harrell failed to show a reasonable possibility of recovery against

Bowers. Schwartz v. State Farm Mutual Auto, Ins. Co., 174 F.3d 875, 877 (7" Cir.

1999). The Seventh Circuit has determined that a non-diverse party is fraudulently joined

when a valid state claim cannot be asserted against the defendant. Poulos v. Naas Foods

Inc., 959 F.2d 69, 73 (7 Cir. 1992) (allowing removal upon finding that plaintiff failed

to state a claim against a non-diverse defendant); Leblang Motors, Ltd. v. Subaru of

America, Inc., 148 F.3d 680, 692 (7" Cir. 1998) (holding that two individual defendants

were fraudulently joined because the alleged claims of fraud were time barred). As this
Court previously determined that Harrell’s claims are all time-barred and denied his
Motion to Amend his Complaint as futile, he has no valid state claim against Bower.
Accordingly, Bower was fraudulently joined as a non-diverse defendant and this Court
now dismisses the action against Bower.

The claims against the Does are also flawed. “If service of the summons and
complaint is not made upon a defendant within 120 days after the filing of the complaint,
the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss
the action without prejudice as to that defendant.” Federal Rules of Civil Procedure
4(m). “John Doe defendants must be identified and served within 120 days of the
commencement of the action against them.” Aviles v. Village of Bedford Park, 160
F.R.D. 565, 567 (N.D. Ill. 1995), Harrell filed his Complaint on September 13, 2002,

however, he failed to identify or serve any of the Does until he moved to amend his


within the statute of limitations for oral contracts, the actual Amended Complaint stated
that these promises were made on May 1, 1997, and thus not within five years of filing
his original Complaint on September 13, 2002. 735 Ill. Comp. Stat. 5/13-205.
Accordingly, Harrell’s claims against the Does are dismissed and his motion to amend his

complaint is denied.

CONCLUSION
For the reasons set forth above, the actions against Bower and the Does are
dismissed.
DATE ve roo



Minute Order Form (08/97)

United States District Court, Northern District of Minois

Nampe Of Assigned Judg 7 Sitting Judge if Other
or Magistrate Jndge George M. Marovich than Assigned Judge
CASE NUMBER 02 C 8252 DATE 7/28/2004
CASE Harrell Me Bower Motors, Inc., et al.
TITLE I
{In the following box (a) indicate the party filing the tion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.] |

DOCKET ENTRY: i

q) o Filed motion of [ use listing in “Motion” box ‘above.) :

(2) Qo Brief in support of motion due

@) a Answer brief to motion due . Reply to answer brief due

(4) Oo Ruling/Hearing on set for at

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

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

Mm Oa Trial[set for/re-set for] on at

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

(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OLocal Rule 41.1 OOFRCP41(aX1) CFRCP41(a)(2).

(10) Mi [Other docketentry) ENTER MEMORANDUM OPINION AND ORDER. Motion #38 is granted.
Harrell’s claims against the Does are dismissed and his motion to amend his complaint is denied. The
actions against Bower and the Does are dismissed.

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

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Document

JUL 30 2004

date docketed

| Docketing to mait notices.
Mail AO 450 form, LU MK.)
Copy to judge/magistrate judge. Lunpa soul sia sn WUL 30 2004
de ld notion
D cepuys” §— 804 Hd 62 WE AOL
initials
add at/time received in |
[ al Clerk's Office mailing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CHARLES H. HARRELL, SR., )
)
Plaintiff, )
) Case No. 02 C 8252
v. dt
) Judge ea
BOWER MOTORS, INC., GENERAL MOTORS}: I re
CORP., JOHN DOES 1-10, ) / Dor oon
) aor ae
Defendants. 5 ee pe Ry
JUL r :
&, 0 2004

MEMORANDUM OPINION AND ORDER
On September 13, 2002, Plaintiff Charles H. Harrell Sr. (Harrell?) filed, an.

—

eleven-count Complaint in Cook County Circuit Court against Defendants General aad
Motors Corp. (“GM”), Bower Motors Inc. (“Bower”)-arid John Does 1-10 (the “Does”).
In response, GM removed the case to this Court on November 13, 2002, on the grounds
of diversity jurisdiction. Harrell then filed a Motion to Remand and requested leave to
amend his Complaint. GM simultaneously filed a Motion for Summary Judgment. In
this Court’s Order of September 16, 2003, GM’s Motion for Summary Judgment was :
granted and Harrell’s Motion to Amend his Complaint and Motion to Remand were
denied. Presently before the Court is Harrell’s Motion for Clarification requesting a final
determination regarding Defendants Bower and the Does.
BACKGROUND

Harrell is a citizen of Illinois. GM is a Delaware corporation with its principle

place of business in Michigan and Bower is an Illinois corporation. At the time GM

removed this case to the District Court, Harrell had not served Bower or the Does, On


February 5, 2003, this Court granted a ninety-day enlargement of time to serve Bower,
but no enlargement was requested or granted for the Does. Harrell attempted to serve
Alan Jacobs (“Jacobs”), Bower’s registered agent, at his residence on several occasions.
Apparently, Jacobs was aware that Harrell was attempting to serve him because both
parties’ attorneys were in communication on several occasions. However, Jacobs would
not come down from his home to accept service. After unsuccessful attempts to serve
Jacobs, on May 6, 2003, service was made upon Jacobs’s doorman, Miguel Torris.
Bower then executed return of service, however, it has not further participated in this
action in any manner. On September 16, 2003, this Court entered summary judgment in
favor of GM, dismissing it from the case. Harrell subsequently filed an appeal to the
United States Court of Appeals for the Seventh Circuit, which requires a final
determination regarding Bower and the Does. Presently before the Court is Harrell’s
Motion for Clarification regarding the status of Bower and the Does.
DISCUSSION

Harrell contends that he properly served Bower, a non-diverse defendant, and that
he can show a reasonable possibility of recovery against Bower. This Court finds that the
service performed on May 6, 2003, was within the ninety-day extension granted on
February 5, 2003. Furthermore, this Court and others have held that service upon a
doorman is valid when the intended recipient is intentionally unavailable to accept

service. Hartford Fire Insurance Co. v. Perinovic, 152 F.R.D. 128, 130 (N.D. Il. 1993);

Three Crown Ltd. Partnership v. Caxton Corp., 817 F. Supp. 1033, 1051 (S.D.N.Y.

1993); Schoemann v. Natural Energy Corp., 99-3129, 2000 U.D. Dist. LEXIS 3361, at

*10 (E.D. La. March 9, 2000). It is uncontested that Jacobs was aware of the action