Betty Dumas, et al v. Charles Decker, et al
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Ann Claire Williams, Circuit Judge; John Daniel Tinder, Circuit Judge and David F. Hamilton, Circuit Judge. [6577933-1] [6577933] [12-2505]
Case: 12-2505 NONPRECEDENTIAL DISPOSITION
Document: 57
Filed: 05/23/2014
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To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2014*
Decided May 23, 2014
Before
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐2505
BETTY J. DUMAS and JEROME J.
CASIMIR,
Plaintiffs‐Appellants,
v.
CHARLES DECKER, et al.,
Defendants‐Appellees.
Appeal from the United States
District Court for the Northern District
of Illinois, Eastern Division.
No. 10 C 7684
Gary S. Feinerman,
Judge.
O R D E R
Betty Dumas and Jerome Casimir appeal the dismissal of their civil action for
failure to serve process within 120 days of filing their complaint, as required by Federal
Rule of Civil Procedure 4(m). See FED. R. CIV. P. 12(b)(5). Because they have not shown
good cause for failing to serve the defendants, we affirm.
*
After examining the parties’ briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
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Dumas and Casimir sued two corporations and three individuals for unspecified
violations of their civil rights in connection with their attempt to preserve title to
property (on Chicago’s south side) after falling behind on their property taxes. The
delinquent taxes had been paid by Optimum Financial, Inc., a financial‐services
company, which assigned the tax‐sale certificate to the Sabre Group, LLC, a real‐estate
firm. Dumas later filed for bankruptcy and went through two bankruptcy proceedings.
During these bankruptcy proceedings and the tax redemption, the defendants allegedly
violated the plaintiffs’ civil rights.
Although summonses were issued on January 21, 2011, nothing happened for
several months. Twice the plaintiffs requested, and the district court granted, extensions
of time (totaling 135 days) for serving summons. Upon granting the second motion
(extending the final deadline to August 19, 2011), the court expressly warned: “This is
the final extension that will be granted for effectuating service.” Two days before the
August 19 deadline, Casimir hand‐delivered one copy of the summons to Heather
Ottenfeld, a Chicago attorney who did not represent any of the defendants. Casimir
recorded on the executed returns that he had served the defendants personally, that
copies were left at their dwellings, and that summonses had been served upon each
defendant’s “attorney of record at Chicago area office.”
The defendants eventually learned of the case, made their appearance, and
moved to dismiss under Federal Rule of Civil Procedure 12(b)(5) because they had
never been properly served. The plaintiffs did not dispute the lack of proper service but
sought a third extension based on good cause—that they had mistakenly understood
the court to have authorized Casimir to effectuate service himself and, further, that the
defendants had a pattern of hiding their identities or addresses.
The district court determined that plaintiffs had not shown good cause under
Rule 4(m) for a third extension, and granted the defendants’ Rule 12(b)(5) motion to
dismiss. The court noted that the plaintiffs (1) gave no excuse for not properly serving
the defendants (and that the extension orders could not be interpreted to have
authorized Casimir to serve the defendants himself), (2) waited until “nearly the last
possible moment” to attempt service, and (3) filed a return of service that was
“internally inconsistent and plainly false.”
On appeal Dumas and Casimir challenge the court’s conclusion that they did not
show good cause for failing to serve the defendants. They maintain that Casimir
delivered the summonses based on his misunderstanding that he had been “appointed”
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by the court to serve the process, but they now clarify that the source of their so‐called
“appointment” was a statement made by the district judge at a status hearing, and not
the extension orders themselves.
The district court, however, acted well within its discretion by expressly rejecting
this argument that the plaintiffs were “appointed” or authorized to serve process. As
the court explained, the plaintiffs did not support this claim with any evidence. But
even if the plaintiffs could show that the court had appointed Casimir to personally
serve the defendants, Ottenfield, as she stated in a declaration, was not authorized to
accept service on behalf of any of the defendants. Additionally, the district court aptly
characterized the claim as “implausible” because the extension orders could not
override Rule 4(c)(2)’s prohibition on any party effectuating service himself.
See, e.g., Constien v. United States, 628 F.3d 1207, 1217 (10th Cir. 2010) (a party may not
effectuate service). Further, unfamiliarity with the law does not constitute good cause to
exempt pro se litigants from complying with the requirements of Rule 4. McMasters v.
United States, 260 F.3d 814, 818 (7th Cir. 2001); Albra v. Advan, Inc., 490 F.3d 826, 829
(11th Cir. 2007); Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988).
The plaintiffs also urge that the time for service be “retroactively
extend[ed]”—and the case allowed to proceed to the merits—because the defendants
would not be prejudiced by any delay in service. But the court exercised its discretion in
rejecting this argument as well: the court reasonably concluded that plaintiffs’ lack of
diligence “counsels heavily” against a discretionary extension and “far outweighs”
those factors that might justify an exception. See Cardenas v. City of Chicago, 646 F.3d
1001, 1007 (7th Cir. 2011).
We have considered plaintiffs’ remaining arguments and conclude that none has
merit.
AFFIRMED.
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