Lozanovski v City of Crown Point et al

Filing 55

OPINION AND ORDER: DENYING 38 MOTION to Dismiss for Lack of Jurisdiction by Defendants Robert Ballas, Scott Bourrell, Derrell Josleyn, Mille Knezevic. Signed by Judge Rudy Lozano on 2/15/2018. (lhc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CRAIG A. LOZANOVSKI,
Plaintiff,
vs.
OFFICER SCOTT BOURRELL,
in his individual
capacity, et al.,
Defendants.

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NO. 2:15-CV-454

OPINION AND ORDER
This matter is before the Court on the Defendants’ Motion to
Dismiss Plaintiff’s Amended Complaint, filed by the defendants on
March 7, 2017.

(DE #38.)

For the reasons set forth below, the

motion is DENIED.

BACKGROUND
The plaintiff, Craig A. Lozanovski (“Plaintiff”), filed a
complaint against the defendants, the City of Crown Point, Indiana,
Officer Scott Bourrell, Officer Derrell Josleyn, Officer Robery
Ballas, and Officer Mille Knezevic (collectively, “Defendants”), on
December 16, 2015.

(DE #1.)

On June 29, 2016, Defendants filed a

motion to dismiss the complaint, arguing that Defendants had not

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been properly served, that the claims against the defendant police
officers in their official capacities were redundant and improperly
sought to hold the City liable on the basis of vicarious liability,
and that Plaintiff had not alleged a sufficient factual basis to
support entity liability.

(DE #16.)

With the permission of the

Court, Plaintiff subsequently filed an amended complaint.
#24 & DE #25.)

(See DE

On August 8, 2016, Defendants filed a motion to

dismiss the amended complaint, again arguing that Defendants had
not been properly served and that Plaintiff had not alleged a
sufficient factual basis to support entity liability.

(DE #26.)

On January 24, 2017, Judge Theresa L. Springmann1 granted in part
and denied in part the motion.

(DE #33.)

The claims against the

City of Crown Point, Indiana were dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(6), and the Plaintiff was ordered to
perfect

service

of

February 23, 2017.

process

upon

the

remaining

Defendants

by

(Id.)

On February 14, 2017, Plaintiff filed an Affidavit of Special
Process Server and Certificates of Service signed by Susan Mack,
Deputy Clerk (“Ms. Mack”) and dated February 7, 2017.

(DE #34.)

In the Certificates of Service, Ms. Mack certified that she had the
authority to accept service on behalf of Defendants and had been
served.

1

(DE #34.)

On March 7, 2017, Defendants filed the instant

The case was reassigned to the undersigned Judge on May 1, 2017.

#53.)

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(DE

motion to dismiss on the basis that they had not been properly
served because Ms. Mack did not have the authority to accept
service on behalf of Defendants.

(DE #38.)

On March 16, 2017,

Plaintiff filed a verified motion for leave to file service of
process,

attaching

an

exhibits

entitled

Affidavit

of

Special

Process Server and Certificates of Service signed by Kathleen
Broukal (“Ms. Broukal”) and dated March 8, 2017.
1, & DE #40-2.)

(DE #40, DE #40-

In the Certificates of Service, Ms. Broukal

certified that she had the authority to accept service on behalf of
Defendants and had been served.

(DE #40-2.)

On March 21, 2017, Plaintiff filed a response to the instant
motion to dismiss, arguing that he believed service had been
perfected on February 7, 2017, and upon learning that Defendants
claimed Ms. Mack did not have authority to accept service on their
behalf, he immediately arranged for the summons and complaints to
be re-served the next day as described in the preceding paragraph.
(DE #41.)
On April 5, 2017, Defendants filed a reply to the instant
motion to dismiss as well as a response to the motion for leave to
file service.

(DE #46 & DE #47.)

In both, Defendants maintain

that service was not perfected because Ms. Broukal did not have the
authority to accept service on behalf of Defendants, and they argue
that Plaintiff should not be afforded any additional time to file
service of process.

(Id.)
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Plaintiff filed a reply in support of his motion for leave to
file service of process on April 25, 2017, arguing that he had been
making good faith efforts to effectuate process since the inception
of this case.

(DE #51.)

Plaintiff also submitted Affidavits of

Service that same day, indicating individual service on Defendants
occurring between March 21, 2017, and April 19, 2017.

(DE #51-1,

DE #51-2, DE #51-3, & DE #52-1.)
On February 1, 2018, Magistrate Judge Paul R. Cherry issued an
opinion and order granting the motion for leave to file service of
process, in which he determined that Plaintiff had shown excusable
neglect regarding the missed deadline previously set by the Court.
(DE #54.)

Specifically, Judge Cherry stated:
Upon receiving the new deadline to serve
Defendants, Plaintiff acted promptly and made
his first attempt to serve Defendants on
February 7, 2017.
Upon learning that
Defendants did not authorize [Ms.] Mack to
accept service, Plaintiff again acted promptly
and made a second attempt on March 8, 2017.
When Defendants communicated that [Ms.]
Broukal was also not authorized to accept
service, Plaintiff switched to attempting
individual
service,
and
the
Affidavits
reflecting individual service show that
Plaintiff once again acted promptly in seeking
to achieve service.

(Id.)

The instant motion to dismiss (DD #38) is now fully ripe for

adjudication.

DISCUSSION
Defendants have moved to dismiss this case for lack of
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personal jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(2) and for insufficient process pursuant to Federal Rule of
Civil Procedure 12(b)(5) due to Plaintiff’s alleged failure to
properly serve Defendants with a copy of the summons and complaint.
Under a Rule 12(b)(2) motion for lack of personal jurisdiction, the
burden

is

on

the

plaintiff

to

jurisdiction over the defendant.
333 (7th Cir. 1987).

establish

that

the

court

has

Turnock v. Cope, 816 F.2d 332,

Motions made under Rule 12(b)(5) challenging

process and service of process have the same standard of review as
Rule

12(b)(2)

necessary

in

defendant.”

motions
order

because

to

assert

“valid

service

personal

of

process

jurisdiction

over

is
a

Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d

297, 301 (7th Cir. 1991).

Valid service on an individual within a

judicial district of the United States may be effectuated by:
(1) following state law for serving a summons
in an action brought in courts of general
jurisdiction in the state where the district
court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and
of the complaint to the individual
personally;
(B) leaving a copy of each at the
individual’s dwelling or usual place of
abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent
authorized by appointment or by law to
receive service of process.
Fed. R. Civ. P. 4(e).

Under Indiana law, service may be made on an

individual by:
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(1) sending a copy of the summons and
complaint by registered or certified mail or
other public means by which a written
acknowledgment of receipt may be requested and
obtained to his residence, place of business
or employment with return receipt requested
and returned showing receipt of the letter; or
(2) delivering a copy of the summons and
complaint to him personally; or
(3) leaving a copy of the summons and
complaint at his dwelling house or usual place
of abode; or
(4) serving his agent as provided by rule,
statute or valid agreement.
Ind. T.R. 4.1(A).

When service is made pursuant to either of the

last two methods described above, a copy of the summons and
complaint must be sent via first class mail to the last known
address of the person being served.

Ind. T.R. 4.1(B).

If proper

service is not accomplished, Rule 4(m) contemplates dismissal as
follows:
If a defendant is not served within 90 days
after the complaint is filed, the court — on
motion or on its own after notice to the
plaintiff — must dismiss the action without
prejudice against that defendant or order that
service be made within a specified time. But
if the plaintiff shows good cause for the
failure, the court must extend the time for
service for an appropriate period . . . .
Fed. R. Civ. P. 4(m).
When considering a failure to serve a defendant within the
required

timeframe,

the

“court

must

first

inquire

whether

a

plaintiff has established good cause for failing to effect timely
service.”

Panaras v. Liquid Carbonic Industries Corp., 94 F.3d

338, 340 (7th Cir. 1996).

If a plaintiff establishes good cause,
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the court is required to afford the plaintiff additional time for
service.

Id.; Fed. R. Civ. P. 4(m).

Even when good cause has not

been shown, a court still has discretion to permit service after
the 120 day period.

Panaras, 94 F.3d at 340 (citation omitted).

In coming to this decision, a court must balance the relative
hardships of the parties and can look to several factors including:
“(1) whether the expiration of a statute of limitations during the
pending action would prevent refiling, (2) whether the defendant
evaded service, (3) whether the defendant’s ability to defend would
be prejudiced by an extension, (4) whether the defendant had actual
notice of the lawsuit, and (5) whether the defendant was eventually
served.”

Cardenas v. City of Chicago, 646 F.3d 1001, 1006 (7th

Cir. 2011); see also Coleman v. Milwaukee Bd. of Sch. Dir., 290
F.3d 932, 934 (7th Cir. 2002); Troxell v. Fedders of N. Am., Inc.,
160 F.3d 381, 383 (7th Cir. 1998).
In its motion, Defendants argue that this case should be
dismissed because Plaintiff failed to perfect service for over
eleven months following the time he first became aware that there
was an issue.

Plaintiff responds by arguing that dismissal is

unwarranted because he continually made good faith efforts to
properly serve Defendants and was eventually able to individually
serve each Defendant by April of 2017.

Indeed, Judge Cherry found

that Plaintiff had shown excusable neglect and granted his motion
for leave to file service beyond the previous deadline set by the
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Court,

noting

that

affidavits

evincing

Defendants had been filed on the docket.

individual

service

on

The question is whether

that service of process enough to stave off dismissal.
A balance of the relevant factors leads the Court to conclude,
in its discretion, that dismissal is unwarranted. While good cause
has not been shown, the Court agrees with Judge Cherry’s analysis
that an extension of time to file service of process was warranted
on the basis of excusable neglect.

Plaintiff repeatedly attempted

to perfect service both before and after the Court ordered deadline
of February 23, 2017. In fact, Plaintiff’s counsel believed he had
properly served Defendants as of February 7, 2017, and he acted
promptly to address the issue as soon as Defendants filed their
motion to dismiss; this included switching to individual service as
a final measure after the previous methods had been challenged as
ineffective.

And, the record reflects that all Defendants were

individually served by April 19, 2017, less than two months after
the Court’s deadline.2

Moreover, while there is no compelling

evidence to suggest that Defendants purposefully attempted to evade
service, it is reasonable to conclude that they had actual notice
of the lawsuit from very early on; counsel for all Defendants
entered appearances on their behalf on April 28, 2016 (DE #8 & DE
2

Process server Lisa Everett attests that she delivered copies of the
summons, complaint, and amended complaint personally to Officer Ballas on
April 4, 2017 (DE #51-1), to Officer Josleyn on March 24, 2017 (DE #51-2), to
Officer Knezevic on March 21, 2017 (DE #51-3), and to Officer Bourrell on
April 19, 2017 (DE #52-1). See Fed. R. Civ. P. 4(e)(2)(A); see also Ind. T.R.
4.1(A)(2).

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#9) and have continuously advocated for them since that time.
Thus, it is clear that Defendants’ ability to defend the suit has
not been hampered by the delay in perfecting service.

Finally,

dismissing this case would be fatal to Plaintiff’s claims, as it is
undisputed that the statute of limitations has already run.

See

Cardenas, 646 F.3d at 1007 (citing Panaras, 94 F.3d at 341) (courts
“should pay particular attention to a critical factor such as the
running of a statute of limitations”).

Because a balance of the

foregoing factors weighs heavily against dismissal, the Court, in
its discretion, will permit the service of the complaint and
summons filed beyond the original deadline and declines to dismiss
this case pursuant to Rule 12(b)(5).

CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint (DE #38) is DENIED.

DATED: February 15, 2018

/s/RUDY LOZANO, Judge
United States District Court

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