“Good cause” is not defined but, rather, left to the discretion of the Court. See Fed. R. Civ.
P. 4(m). Despite repeated failures to properly serve Defendants, Giallanza claims “good cause.”
Giallanza’s conduct evidences, at best, excusable neglect and, at worst, professional incompetence,
neither of which rises to the level of “good cause” for the purposes of Fed. R. Civ. P. 4(m). As such,
Giallanza does not establish “good cause” under Rule 4.

While Giallanza has not established “good cause” to excuse her improper service, the Court
has the discretion to extend the period of time to effect proper service. See Panaras, 94 F.3d at 340-
41. Clarifying when such discretion is warranted, the Federal Rules note “[r]elief may be justified,
for example, if the applicable statute of limitations would bar the refiled action.” See Fed. R.
Civ. P. 4(m), Advisory Committee Note, 1993 Amendments. In the present case, dismissing the suit,
even without prejudice, would result in the statute of limitations’ barring a refiled action. Granting
an extension in this particular circumstance is clearly contemplated by the rule.

Defendants contend that granting a time extension to obtain proper service would prejudice
them. Defendants also note that they did not evade service or conceal any defect in service and that
they were in steady communication with Giallanza regarding the question of improper service.
Regarding service, the notion of prejudice deals with the adequacy of notice to a party. “[T]he core
function of service is to supply notice of the pendency of a legal action, in a manner and at a time
that affords the defendant a fair opportunity to answer the complaint and present defenses and
objections.” See Henderson v. United States, 517 U.S. 654, 671 (1996).

Presently, even though service was improper, Defendants had notice of the impending legal
action. Defendants attended two status conferences and were in steady contact with Giallanza, even

repeatedly offering to waive service provided they were properly served with a Waiver form. As



In the instant case, Giallanza served only a one-page “Alias Summons in a Civil Case,” but
not the Complaint, to Defendants’ registered agent. Giallanza further tried to serve the Waiver form
to Defendants’ counsel rather than their registered agent twice, once being by electronic mail. This
service did not comply with Rule 4(h) or 735 ILCS 5/2-204 because Giallanza failed to demonstrate
that a copy of the Complaint and summons were served upon an officer, a managing or general
agent, or any agent authorized by appointment or by law to receive service of process. In addition,
a mailing, especially an electronic mailing, does not constitute “delivery” as required by Rule 4. See
Miles v. WIMX Radio Network, 2002 WL 1359398 (N.D. Ill. June 20, 2002); Dunmars v. City of
Chicago, 22 F. Supp. 2d 777, 781 (N.D. Il. 1998) (Dunmars).

Furthermore, Giallanza did not perfect service in accordance with either Fed. R. Civ. P. 4(d)
or 735 ILCS 5/2-213 because she failed to include a copy of the Complaint and initially sent the
wrong date to respond.

Under Rule 4(m), service of the complaint and summons is to be made within 120 days after
the filing of the complaint. In this case, Giallanza filed her Complaint on November 6, 2003; the
120-day period expired as of March 5, 2004. If the 120-day time period is not met, the court “shall
dismiss the action without prejudice . . . or direct that service be effected within a specified time;
provided that if the plaintiff shows good cause for the failure, the court shall extend the time for
service for an appropriate period.” Fed. R. Civ. P. 4(m). Furthermore, if the plaintiff cannot show
good cause for the defect in service, the court still has the discretion to direct that service be effected
within a specified time. See Panaras v. Liquid Carbonic Indus., Inc., 94 F.3d 338, 340-41 (7th Cir.

1996) (Panaras).



such, there is no evidence of “significant” prejudice to the Defendants. Of course, neither should
this ruling permitting the extension of time for service be construed as waiving the right to service;
as the Seventh Circuit has noted, “the rule does not abolish a defendant’s right to proper service of
process.” See Troxell v. Fedders of North America, Inc., 160 F.3d 381, 383 (7th Cir. 1998).
Moreover, dismissal without prejudice, and the resulting running of the statute of limitations, is
contrary to the fact that “we recognize that courts generally prefer to resolve disputes on their merits
instead of procedural technicalities.” See Fidelity & Deposit Co. y. Ramco Indus., 1996 WL 392164
at *3 (N.D. Ill. July 11, 1996).

Whileno “good cause” has been demonstrated by Giallanza, the Court finds that an extension
of time to effect service is proper in the present case. Case law allows the extension of time for
service even if there was no “good cause” for Giallanza’s missing the deadline. See Panaras, 94
F.3d at 341. Giallanza may serve the summons and Complaint upon Defendants in any manner
which otherwise complies with Rule 4 of the Federal Rules of Civil Procedure within thirty (30) days
of the date of this Order. Plaintiff's failure to effect proper service within that time period will result
in the dismissal of her Complaint.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss is denied.

Dated: 5 200F \y LL Jtak
Coin W. DARRAH
Inited States District Judge



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Oth
ir Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 03 C 7895 DATE 7/8/2004
CASE Giallanza vs. InterContinental Hotels Group, 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, ]

MOTION:

DOCKET ENTRY:

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

(2) Oo Brief in support of motion due

(3) im) Answer brief to motion due___. Reply to answer brief due.

(4 Q Ruling/Hearingon set for__— at

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

(6) Qo Pretrial conference(held/continued to] [set for/re-set for]on__setfor__—sat__

(7) a Trial[set for/re-set for]on__at

(8) aq [Bench/Jury trial] [Hearing] held/continued to__—_att

(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (OlLocal Rule 41.1 COFRCP41(a)(1) OO FRCP41(a)(2).

qo) [Other docket entry] For the reasons stated in the attached memorandum opinion and order,

defendants’ motion to dismiss is denied. Enter Memorandum Opinion and Order.

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

No notices required, advised in open court.

Ne i jired.
Jo notices required umber of novices

WUL 2 2 2uu4

laic docketed

Notices mailed by judge's staff.

Notified counsel by telephone.

ov | Docketing to mail notices.

Mail AO 450 form. docketing deputy initials

Copy to judge/magistrate judge.

courtroom
MF deputy’s ey gg el
initials +85 wheel Bh

Date/time received in
central Cletk’s Office

mailing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LUCY GIALLANZA, )
Plaintiff, } No. 03 C 7895
v. Judge John W. Darrah
INC.and HOLIDAY INNSELECT, Te
Defendants. ) WE \2 n

MEMORANDUM OPINION AND ORDER

Plaintiff, Lucy Giallanza, filed suit against Defendants, Intercontinental Hotels Group, Inc.
and Holiday Inn Select, alleging age discrimination. Presently before the Court is Defendants’
Motion to Dismiss for lack of proper service.

BACKGROUND

On November, 6, 2003, Giallanza filed a Complaint with this Court, giving her until
March 5, 2004 (120 days), to properly serve the Defendants pursuant to Fed. R. Civ. P. 4. On
December 1, 2003, Giallanza served Defendants’ registered agents with a one-page “Alias Summons
in a Civil Case” but not with a copy of the Complaint. On December 18, 2003, Defendants’ counsel
informed Giallanza, in a letter, about the lack of proper service and that Defendants were willing to
waive service if properly served with a Waiver of Service of Summons (“Waiver”) form. Giallanza
alleges that the letter led her to believe that Defendants had received her Complaint and that the
defects in the service process laid elsewhere.

Giallanza missed the first status conference on January 21, 2004, but attended the subsequent

February 25, 2004 status conference, while Defendants were present for both. At the



February 25, 2004 status conference, Giallanza was again informed of the improper service; so
Giallanza delivered a Waiver form on March 2, 2004, to Defendants’ counsel, though not
Defendants’ registered agent, and without a proper date or the Complaint. Even though the 120-day
deadline passed on March 5, 2004, Defendants contacted Giallanza on March 10, 2004, regarding
the improper service. Giallanza responded on March 24, 2004, via electronic mail, with a Waiver
form, which again was improper pursuant to Fed. R. Civ. P. 4, though this time with a proper date,
but still did not include the Complaint.
ANALYSIS

Service on a corporation is valid when it complies with Fed. R. Civ. P. 4(h), which states
that service shall be effected:

(1) in a judicial district of the United States in the manner prescribed for

individuals by subdivision (e)(1), or by delivering a copy of the summons and of

the complaint to an officer, a managing or general agent, or any agent authorized

by appointment or by law to receive service of process....

Additionally, Rule 4(e)(1) allows service to be effected “pursuant to the law of the state in which
the district is located....” Fed. R. Civ. P. 4(e)(1). Pursuant to Illinois law, service may be
perfected on a private corporation “by leaving a copy of the process with its registered agent or
any officer or agent found anywhere in the State....” 735 ILCS 5/2-204.

Both the Federal Rules of Civil Procedure and Illinois law allow a plaintiff to have
defendant waive service. Fed. R. Civ. P. 4(d); 735 ILCS 5/2-213. Under both of these waiver
provisions, the plaintiff is required to inform the defendant of the consequences of compliance
and the failure to comply with the request and include an extra copy of the notice and request as

well as prepaid means of compliance in writing. Fed. R. Civ. P. 4(d); 735 ILCS 5/2-213.