Kapitan et al v. D T Chicagoland Express Inc

Filing 34

OPINION AND ORDER denying 31 Motion to Reconsider for Good Cause April 9, 2013 Order Dismissing Robert Norrise, filed by plaintiffs. Signed by Judge Rudy Lozano on 7/10/2013. (rmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
BETTY KAPITAN, et al.,
Plaintiffs,
vs.
DT CHICAGOLAND EXPRESS
INC., d/b/a CXI
TRUCKING, et al.,
Defendants.

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CAUSE NO. 2:12-CV-321

OPINION AND ORDER
This matter is before the Court on the “Motion to Reconsider
for Good Cause April 9, 2013 Order Dismissing Robert Norris,” filed
by Plaintiffs, Betty and Mark Kapitan, on June 7, 2013 (DE #31).
For the reasons set forth below, the motion is DENIED.

BACKGROUND
This case was removed to this Court on August 9, 2012. (DE
#2.)

On October 1, 2012, Plaintiffs filed an amended complaint

adding Robert Norris as a defendant.

On February 14, 2013, the

Clerk issued a notice indicating that service of process had not
been accomplished as to Defendant, Robert Norris.

(DE #14.)

The

Clerk warned Plaintiffs that a failure to have process issued and
service made within 120 days from the filing of the complaint shall
be

sufficient

to

warrant

dismissal

of

the

action,

without

prejudice, for failure to complete process pursuant to Rule 4(m) of
the Federal Rules of Civil Procedure.

The Clerk warned Plaintiffs

that the time limitation for service of process had elapsed, and if
no action was taken by March 1, 2013, the matter would be brought
to the attention of this Court.

No action was taken, and service

of process still had not been made as to Defendant, Robert Norris.
Consequently, on April 9, 2013, approximately 190 days after the
filing of the amended complaint adding Norris, the Court dismissed
Defendant, Robert Norris, from the case without prejudice.

(DE

#17.) The instant motion to reconsider was filed a lengthy 59 days
after the dismissal.
Plaintiffs now ask for reconsideration of that order.

In

support, they set forth that the mother and father of Plaintiff’s
counsel, Jeffrey Sturm, passed away in February and April of 2012.
(DE #31, p. 2.)
Norris’

Plaintiffs tried various avenues to determine

address

(including

eventually

hiring

a

investigation firm), and to serve him, but to no avail.

private
Id.

In

March 2013, attorney Sturm’s grandmother passed away. (Id., p. 3.)
Finally,

Plaintiffs

Secretary

of

State

made
on

service

May

17,

to
2013,

Norris

via

although

the
this

Indiana
did

not

constitute proper service of process since Norris had already been
dismissed from this case on April 9, 2013.

DISCUSSION

2

Rule 4(m) generally requires a plaintiff to serve process
within 120 days, but a plaintiff may move for additional time to
serve the defendant.

If the plaintiff shows good cause for his

failure to accomplish service within the designated period of time,
then the district court must grant an extension.

United States v.

McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006).

In this case,

Plaintiffs never requested an extension of time to serve process,
thus, the “good cause” standard is not applicable.
When a plaintiff fails to serve process within the period of
time prescribed by the federal rules (as in this case), Rule 4(m)
requires the district court to dismiss the complaint without
prejudice.

See Fed. R. Civ. P. 4(m) (“If a defendant is not served

within 120 days after the complaint is filed, the court . . . must
dismiss the action without prejudice . . . .) (Emphasis added).
Because this motion for reconsideration was filed more than 28
days after entry of the dismissal order, it must satisfy the
requirements of Rule 60(b).

See Rule 59(e) (“[a] motion to alter

or amend a judgment must be filed no later than 28 days after the
entry of the judgment.”).

Relief under Rule 60(b)(1) is available

where the movant establishes “mistake, inadvertence, surprise, or
excusable neglect.”

Fed. R. Civ. P. 60(b)(1).

It has long been

established that “Rule 60(b) relief is an extraordinary remedy and
is granted only in exceptional circumstances.”

Harold Washington

Party v. Cook County, Illinois Democratic Party, 984 F.2d 875, 879

3

(7th Cir. 1993) (quotation omitted).

Relief under Rule 60(b) from

a dismissal for lack of prosecution is warranted “only upon a
showing of extraordinary circumstances that create a substantial
danger that the underlying judgment was unjust.”

Dickerson v.

Board of Educ., 32 F.3d 1113, 1116 (7th Cir. 1994).
The

Seventh

Circuit

has

held

that

counsel’s

negligence,

whether gross or otherwise, is never a good ground for Rule 60(b)
relief.

See United States v. 7108 West Grand Avenue, 15 F.3d 632,

634-35 (7th Cir. 1994).

Additionally, the Seventh Circuit has

upheld a district court’s finding that personal problems, including
a family member’s illness, does not demonstrate extraordinary
circumstances to vacate a dismissal.

Dickerson, 32 F.3d at 1118.

While this Court certainly sympathizes with counsel Jeffrey
Sturm’s personal losses, as in Dickerson, there is nothing in this
record to show that counsel himself was incapacitated during this
lengthy time. Certainly Sturm could have requested an extension of
time in which to serve Norris. Additionally, on February 14, 2013,
the Clerk warned counsel that the time within which to serve Norris
had elapsed, and granted him until March 1, 2013, warning him if no
action was taken by then, the matter would be brought to this
Court’s attention. Counsel did not respond to the warning, thus he
repeatedly
warnings.

failed

to

comply

with

the

rules

and

the

Court’s

He even waited 59 days after the Court’s dismissal to

file this motion for reconsideration.

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The Court also notes that

according to the docket sheet, there are two attorneys of record
for Plaintiffs in this case - Jeffrey Sturm and George Patrick.
While Mr. Sturm was undoubtedly suffering personal issues during
this time, Plaintiffs do not reference Mr. Patrick or give any
reasons whatsoever why he could not have effected service of
process, or at the very least, moved for an extension of time or
responded to the Clerk’s warning about the eminent dismissal.
Finally, Plaintiffs have not pointed to anything in the record to
show that Norris was intentionally trying to evade service, nor
have they indicated any other circumstances that could make this
judgment

unjust.

In

sum,

Plaintiffs

have

not

demonstrated

exceptional circumstances that warrant the extraordinary remedy of
reversing this Court’s order.

CONCLUSION
For the reasons set forth above, the “Motion to Reconsider for
Good Cause April 9, 2013 Order Dismissing Robert Norris,” filed by
Plaintiffs, Betty and Mark Kapitan, on June 7, 2013 (DE #31), is
DENIED.

DATED: July 10, 2013

/s/ RUDY LOZANO, Judge
United States District Court

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