Oberloh v. eClips Hair Design Inc
Filing
14
OPINION AND ORDER denying 12 Motion to Dismiss. Defendants ORDERED to file responsive pleading by 7/6/2011. Signed by Chief Judge Philip P Simon on 6/22/11. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DONALD TERRY OBERLOH,
Plaintiff,
v.
eCLIPS HAIR DESIGN INC., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
3:10-CV-497-PPS-CAN
OPINION AND ORDER
Before the Court is Defendants’ motion to dismiss pro se plaintiff Donald Oberloh’s
lawsuit for insufficient service of process, pursuant to Federal Rule of Civil Procedure 12(b)(5)
[DE 12]. Oberloh did not file a response to the motion. For the reasons discussed below,
Defendants’ motion is DENIED.
Oberloh filed this lawsuit on December 1, 2010 [DE 1], asserting claims against the
Defendants, owners of a hair salon, for violation of Title III of the ADA [Id.]. Specifically,
Oberloh alleges that the Defendants’ hair salon is inaccessible within the meaning of Title III of
the ADA [Id.]. Oberloh filed an in forma pauperis petition on the same date he filed the
complaint [DE 2], which the Court granted several months later, on April 4, 2011 [DE 3].
December 1, 2010 is the filing date here, despite the Court’s delay in resolving the IFP
application. The Seventh Circuit discussed the relationship between IFP applications and the
substantive filing date of civil complaints in Williams-Guice v. Board of Education, 45 F.3d 161
(7th Cir. 1995). Williams-Guice explained that, if a court grants an IFP application, as this Court
did, “the complaint is deemed filed when lodged with the clerk.” Id. at 164.
1
Defendants argue, under Rule 12(b)(5) that the case should be dismissed without
prejudice because of Oberloh’s failure to serve them within the 120-day deadline set by Federal
Rule of Civil Procedure 4 [DE 12]. Rule 4 sets forth the requirements for properly serving a
defendant. Fed. R. Civ. P. 4. Rule 4(m) provides that service of process shall be “made upon a
defendant within 120 days after the filing of the complaint.” Fed. R. Civ. P. 4(m). A motion to
dismiss pursuant to Rule 12(b)(5) asks the court to determine whether service of process on the
defendant was sufficient. See Fed. R. Civ. P. 12(b)(5).
Defendants are correct that Oberloh did not comply with Rule 4(m)’s 120-day deadline.
The granting of Oberloh’s IFP application means that his complaint was deemed filed on
December 1, 2010, the date Oberloh lodged it with the clerk. Williams-Guice, 45 F.3d at 164.
Yet, Defendants were not served with copies of the summons and complaint until April 14, 2011
[DE 5-8], 134 days later and thus beyond Rule 4(m)’s 120-day deadline.
However, Rule 4(m)’s time period for service is not absolute. Under certain
circumstances, a court may allow service to be made beyond that time frame. See Fed. R. Civ. P.
4(m) (stating that if service is not made within 120 days after the filing of the complaint, the
court may direct that service be effected within a specified time). Even if good cause for an
extension of time to effect service is not shown, courts have discretion to grant an extension of
time beyond the 120-day period provided for in Rule 4(m). See Fed. R. Civ. P. 4, Advisory
Committee Notes, 1993 Amendments, Subdivision (m) (new subdivision (m) “explicitly
provides that the court shall allow additional time if there is good cause” and “authorizes the
court to relieve a plaintiff of the consequences of an application of this subdivision even if there
is not good cause shown”); see also Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 341
2
(7th Cir. 1996) (under Rule 4(m), courts have discretion to enlarge the 120-day period even if no
good cause is shown).
Significantly, the Advisory Committee Notes to subdivision (m) of Rule 4 also provide
that the “district court should . . . take care to protect pro se plaintiffs from consequences of
confusion or delay attending the resolution of an in forma pauperis petition.” See Fed. R. Civ. P.
4, Advisory Committee Notes, 1993 Amendments, Subdivision (m) (citing Robinson v.
America’s Best Contacts & Eyeglasses, 876 F.2d 596 (7th Cir. 1989)).
The Court’s responsibility to protect pro se plaintiffs clearly extends to the circumstances
here. The delay attending the resolution of Oberloh’s IFP petition is precisely what the Advisory
Committee Notes contemplate as a circumstance that justifies relief from the application of Rule
4(m)’s 120-day deadline. Accordingly, I find that Oberloh had good cause for his failure to
serve process within 120 days of filing his initial complaint.
For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss [DE 12].
Moreover, pursuant to Federal Rule of Civil Procedure 12(a)(4)(A), Defendants are ORDERED
to file responsive pleadings within 14 days after notice of this order. Fed. R. Civ. P. 12(a)(4)(A).
SO ORDERED.
ENTERED: June 22, 2011
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?