In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3301
M ARIA C ARDENAS, et al.,
Plaintiffs-Appellants,
v.
C ITY OF C HICAGO, a municipal corporation, and
A LEJANDRO G ALLEGOS, a Chicago Police Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 3174—Charles R. Norgle, Sr., Judge.
A RGUED JUNE 8, 2011—D ECIDED JULY 20, 2011
Before P OSNER, K ANNE, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. Chicago police officer Alejandro
Gallegos led a team of officers in executing a search
warrant at the apartment of Maria Cardenas, Evanhido
Cardenas, and Natalia Barron (the “Plaintiffs”). The
officers entered the apartment, without knocking and
announcing their presence, and then handcuffed and
harshly handled the residents. The residents subsequently
2 No. 10-3301
sued the City of Chicago and Officer Gallegos, bringing
three state-law and two federal claims based on the
allegedly unlawful search. They did not properly serve
Officer Gallegos with process, however, and he moved
to dismiss the complaint against him more than 360 days
after service was due. The district court granted his
motion to dismiss, finding that the single attempt at
service was inadequate, that no good cause for the
failure was shown, and that an extension was not war-
ranted by the circumstances. It then dismissed the City,
as the City could not be held liable under Illinois law
without the officer’s presence in the suit. We affirm.
I. B ACKGROUND
Officer Gallegos obtained a search warrant for the
residence of Maria Cardenas, Evanhido Cardenas, and
Natalia Barron, authorizing officers to search the apart-
ment for a wanted individual, narcotics, money, and
drug paraphernalia. The team of officers, led by Officer
Gallegos, entered the apartment on December 14, 2007,
without knocking or announcing their presence. The
warrant did not authorize this procedure. According to
the complaint, each of the Plaintiffs was in the residence,
threatened with firearms, and restrained against his or
her will. The Plaintiffs allege that the officers searched
recklessly, destroying some belongings and damaging
the apartment itself. The officers left empty-handed,
having found no person or object described in the warrant.
Believing the officers’ conduct violated their rights,
the Plaintiffs sued Officer Gallegos and the City of
No. 10-3301 3
Chicago in state court on April 22, 2008, alleging unlawful
execution of a search warrant, assault, battery, and a
federal count of unlawful search and seizure. The
Plaintiffs attempted to serve both defendants on May 9,
2008, through the Cook County Sheriff. The Sheriff suc-
cessfully served the City, but Officer Gallegos’s sum-
mons—which the Plaintiffs had directed to the Chicago
Police Department (“CPD”) Headquarters, care of
the Superintendent—was returned unserved on May 12,
2008.
The City removed the case to federal court on June 2,
2008.1 The removal notice stated that Officer Gallegos
had not yet been served. Counsel for the Plaintiffs
then called CPD on June 19, 2008, and asked how to
properly serve a CPD officer. Counsel undertook no
further service-related effort until November 12, 2008,
when he sent a letter to the City’s counsel requesting
that the City waive service for Officer Gallegos or that it
at least provide Officer Gallegos’s current address. The
two counsel spoke on December 17, 2008, and they
dispute the contents of the telephone conversation: the
City alleges that it described how the CPD Office
of Legal Affairs facilitates the service of an officer, but
Plaintiffs’ counsel claims that no mention of insufficient
service was made. They agree, however, that the City
indicated it lacked the authority to waive service
on Officer Gallegos’s behalf and that it withheld his
1
Officer Gallegos neither participated in nor objected to the
removal.
4 No. 10-3301
address due to policies regarding officer safety and
privacy.
The City and Officer Gallegos jointly moved to dismiss
the suit on September 28, 2009. 2 They first argued that,
because Officer Gallegos had never been served, the
complaint against him must be dismissed under Rule
12(b)(5). The motion noted that the CPD’s Office of Legal
Affairs was the appropriate entity to facilitate personal
service on Officer Gallegos. They then argued that the
complaint against the City must be dismissed under
Rule 12(b)(6) because the state’s Tort Immunity Act
would not support municipal liability resulting from an
officer’s act where the officer himself was not liable.
The Plaintiffs opposed the motions, claiming that their
attempt to serve Officer Gallegos through the Superin-
tendent was sufficient and that the City counsel’s stated
settlement intentions led them to believe further service
attempts were unnecessary. While the motions to
dismiss were pending, the Plaintiffs obtained an alias
summons for Officer Gallegos on October 14, 2009. Their
counsel served the summons through CPD’s Office of
Legal Affairs on November 9, 2009, approximately 525
days after the suit was removed.
The district court granted the joint motion to dismiss. It
first determined that the Plaintiffs had not properly
served Officer Gallegos within the 120-day limit estab-
lished by Rule 4(m). It also determined that the Plain-
2
The City’s counsel entered an appearance on Officer
Gallegos’s behalf when it filed the joint motion.
No. 10-3301 5
tiffs lacked good cause for the failed service and declined
to grant a discretionary extension. The district court then
determined that, without Officer Gallegos in the suit,
liability would not lie against the City. It dismissed the
Plaintiffs’ suit with prejudice on February 15, 2010. The
district court subsequently denied the Plaintiffs’ motion
to alter or amend the judgment, in which they argued
that the court had not considered all of the appropriate
factors in its extension decision.
II. A NALYSIS
The Plaintiffs now appeal the dismissal of their suit,
presenting two issues for our review. First, they contend
that the district court erred in granting Officer Gallegos’s
motion to dismiss pursuant to Rule 12(b)(5). They argue
that they successfully served Officer Gallegos within
the allotted time and that—if we find they did not—the
district court erred in denying them an extension during
which they could perfect service. Second, they contend
that if we conclude the district court erred in its service
of process determinations, we must reverse its grant of
the City’s motion to dismiss pursuant to Rule 12(b)(6)
and reinstate their claims against the City. We do not
reach and express no opinion on their second issue, as it
is clearly conditioned upon our determination regarding
their first issue.
After commencing a federal suit, the plaintiff must
ensure that each defendant receives a summons and a
copy of the complaint against it. Fed. R. Civ. P. 4(b), (c)(1).
Unless the plaintiff can demonstrate good cause for being
6 No. 10-3301
unable to do so, she must accomplish this service of
process within 120 days of filing to avoid possible dis-
missal of the suit. Fed. R. Civ. P. 4(m). The same 120-day
period applies where suits are removed to federal court
from state court, except that the period commences upon
the date of removal. See Fed. R. Civ. P. 81(c)(1); Romo v.
Gulf Stream Coach, Inc., 250 F.3d 1119, 1122-23 (7th Cir.
2001); Wallace v. Microsoft Corp., 596 F.3d 703, 706 (10th
Cir. 2010). These service requirements provide notice to
parties, see Henderson v. United States, 517 U.S. 654, 672
(1996), encourage parties and their counsel to diligently
pursue their cases, see Geiger v. Allen, 850 F.2d 330, 331
(7th Cir. 1988), and trigger a district court’s ability to
exercise jurisdiction over a defendant, see United States
v. Ligas, 549 F.3d 497, 500 (7th Cir. 2008).
A defendant may enforce the service of process require-
ments through a pretrial motion to dismiss. Fed. R. Civ. P.
12(b)(5). The plaintiff bears the burden to demonstrate
that the district court has jurisdiction over each de-
fendant through effective service. See Homer v. Jones-Bey,
415 F.3d 748, 754 (7th Cir. 2005). If, on its own or on the
defendant’s motion, the district court finds that the
plaintiff has not met that burden and lacks good cause
for not perfecting service, the district court must either
dismiss the suit or specify a time within which the
plaintiff must serve the defendant. Fed. R. Civ. P. 4(m).
As the text of the rule indicates, the decision of whether
to dismiss or extend the period for service is inherently
discretionary, Ligas, 549 F.3d at 501, and we will review
the district court’s judgment only for abuse of that dis-
cretion. Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d
No. 10-3301 7
932, 934 (7th Cir. 2002); Kurka v. Iowa Cnty., Iowa, 628
F.3d 953, 957 (8th Cir. 2010).
A. Insufficient Service of Process
The Plaintiffs first argue that the district court erred in
its consideration of their initial attempt to serve Officer
Gallegos. They contend that they had properly served
Officer Gallegos on May 9, 2008, and that we should
reinstate their claims accordingly. We review de novo the
district court’s determination regarding the sufficiency
of the Plaintiffs’ service of process. See uBID, Inc. v.
GoDaddy Grp., Inc., 623 F.3d 421, 423-24 (7th Cir. 2010);
Williams v. Leach, 938 F.2d 769, 771 (7th Cir. 1991).
The Plaintiffs’ contention that they properly served
Officer Gallegos within 120 days as required by Rule 4(m)
lacks merit. Their asserted belief that they properly
served Officer Gallegos on May 9, 2008—as well as their
incredible claim that “[i]t was only upon being served
with Defendant’s Motion to Dismiss” that they realized
that their attempt was “supposedly deficient”—is flatly
belied by (1) the return of the summons three days later
marked as not served, (2) their post-removal inquiry
regarding the proper means of service, and (3) their
request for the city to waive service on Officer Gallegos’s
behalf. They nevertheless argue, unconvincingly, that the
Superintendent is the de facto head of the Office of
Legal Affairs and that serving the summons on the Super-
intendent’s office was essentially the same as giving it
to the Office of Legal Affairs. They also complain about
the difficulty of serving police officers in general. But
8 No. 10-3301
neither point explains how their attempt at service com-
plied with either the state or federal rules.
Perhaps the Plaintiffs believe that offering the sum-
mons to another office on the same floor as the correct
office should suffice, and thus wish us to deem their
singular attempt valid. Whether such an effort should
arguably be effective has no bearing on whether it
was legally sufficient. Because this attempt at service
occurred before the case was removed, Illinois service of
process rules govern whether the attempt was legally
sufficient. Allen v. Ferguson, 791 F.2d 611, 616 n.8 (7th
Cir. 1986). Under Illinois law, serving an individual’s
employer or other putative agent is not sufficient for
service on the individual. See 735 Ill. Comp. Stat. 5/2-203.
Even if the Federal Rules of Civil Procedure applied to
this singular attempt at service, the Plaintiffs have not
shown that the Superintendent was an authorized agent
to receive service of process on Officer Gallegos’s behalf.
See Fed. R. Civ. P. 4(e)(2)(C). Accordingly, the district
court did not err in determining that the Plaintiffs had
not served Officer Gallegos within the 120-day period.
B. Denial of Extension
Despite knowing that the summons for Officer Gallegos
was returned unserved, the Plaintiffs undertook no service-
related efforts until well after the 120-day deadline had
passed. Perhaps because of this unexplained lapse, they
renounce any argument that they had good cause for
their lack of service and that they were entitled to the
No. 10-3301 9
resulting compulsory extension. See Fed. R. Civ. P. 4(m);
Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th
Cir. 1996). Instead, the second prong of the Plaintiffs’
argument is that the district court erred in its refusal to
grant them a discretionary extension of time in which
to serve Officer Gallegos. They allege that the district
court abused its discretion because it failed to take the
relevant factors into consideration and because the
balance of hardships militated an extension. They ask us
to reverse its decision and reinstate their claims now
that Officer Gallegos has been served with process.
The district court declined to extend the deadline for
service and chose instead to dismiss the claims against
Officer Gallegos. In doing so, it acknowledged that
the expiration of the statute of limitations would bar
refiling of the suit, but correctly noted that this factor
alone neither required nor justified an extension. See
Panaras, 94 F.3d at 341; Kurka, 628 F.3d at 959. The
district court ultimately determined that the fault for the
profound delay rested squarely on Plaintiffs’ counsel’s
shoulders: “Counsel made no other attempts at service,
though it should have been aware that it would face
serious consequences if it ultimately failed to serve an
essential party. The Court sees no reason to allow
Counsel more time to accomplish what it should have
done several months ago.” Cardenas v. City of Chicago,
2010 WL 610621, at *5 (N.D. Ill. Feb. 15, 2010).
On appeal, the Plaintiffs argue that the district court
was required to balance the parties’ hardships in exer-
cising its discretion by considering five factors they
10 No. 10-3301
distill from various cases: (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. The
Plaintiffs are correct that district courts should consider
the relative hardships of the parties in arriving at its
discretionary choice between dismissal and extension
of time. See Coleman, 290 F.3d at 934; Zapata v. City of
New York, 502 F.3d 192, 197 (2d Cir. 2007). Rule 4(m)
does not specify which factors the district court must
consider in exercising its discretion, see United States v.
McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006) (noting
that the rule “specifies no criteria for the exercise of
mercy”), but the Plaintiffs correctly identify some
factors that the district court may consider in its deci-
sion. See, e.g., Coleman, 290 F.3d at 934 (harm to
defendant’s ability to defend, receipt of actual notice,
expiration of statute of limitations); McLaughlin, 470
F.3d at 701 (evasion of service, admission of liability,
windfall to defendant); Troxell v. Fedders of N. Am., Inc.,
160 F.3d 381, 383 (7th Cir. 1998) (actual notice
and eventual service). Yet the Plaintiffs propose only
those factors they believe favor their chances of securing
an extension, overlooking other acceptable consider-
ations—such as whether they ever requested an ex-
tension from the court due to difficulties in perfecting
service (they did not) and whether they diligently
pursued service during the allotted period (they did
No. 10-3301 11
not). Further, even if the balance of hardships appears
to favor an extension, the district court retained its dis-
cretion to hold the Plaintiffs accountable for their ac-
tions—or, more accurately, inaction—by dismissing the
case. Coleman, 290 F.3d at 934.
A district court should, of course, consider the argu-
ments and factors advanced by the plaintiff, see id., and it
should pay particular attention to a critical factor such
as the running of a statute of limitations, see Panaras,
94 F.3d at 341. But while we encourage courts to do so
as a matter of practice, no authority requires a district
court to explain on the record its detailed reasoning
for each plaintiff-proposed factor. And certainly nothing
forbids its consideration of factors plaintiffs tellingly
ignore. The district court’s order in this case does not
show its explicit consideration of all the potentially ap-
plicable factors, but the order specifically addresses
the statute of limitations and rejects it as a basis for ex-
tension under the circumstances. The district court also
notes those factors it regarded as dispositive: Plaintiffs’
lack of diligence, a year’s delay in service even after
being informed of the proper method, and counsel’s
inaction in the face of the known serious consequences
of his failure to serve an essential party. Finally, in its
disposition of the Plaintiffs’ motion to amend the judg-
ment, the district court indicated it had already evaluated
the factors advocated and the cases presented by the
Plaintiffs in opposition to dismissal.
Ultimately, the district court recognized its discretion
in applying Rule 4(m), evaluated the circumstances of
12 No. 10-3301
the Plaintiffs’ failure to serve Officer Gallegos, and de-
termined that the Plaintiffs’ counsel had only himself to
blame. If a district court “properly sets out the relevant
law and makes no factual findings that are clearly errone-
ous, an abuse of discretion exists only if its decision
was arbitrary and unreasonable.” Troxell, 160 F.3d at 383.
The Plaintiffs have offered us “no reason to think that
the district court was completely off base” in deciding
not to rely exclusively on the factors they propose. Id.
The district court could have excused the lack of timely
service, but we cannot call its choice not to grant
an extension unreasonable—especially given both that
Plaintiffs’ counsel made no attempt to serve Officer
Gallegos in the 483 days between removal and the filing
of the motion to dismiss and also that another 42 days
elapsed before counsel finally served the Office of Legal
Affairs. Indeed, it strikes us as eminently reasonable to
hold the Plaintiffs accountable for their unexplained
inaction in the face of their crucial burden to timely
serve Officer Gallegos with process. We conclude that
the district court did not abuse its discretion by granting
Officer Gallegos’s motion to dismiss.
C. Dismissal without Prejudice
Before closing, we must address one final aspect of the
district court’s order. A dismissal pursuant to a Rule
12(b)(5) motion ordinarily should be entered without
prejudice. See Fed. R. Civ. P. 4(m); Ligas, 549 F.3d at 501.
The district court, however, dismissed the claims
against Officer Gallegos with prejudice based on the
No. 10-3301 13
fact that the applicable statute of limitations had expired
while the case was pending. Cardenas, 2010 WL 610621,
at *5. The Plaintiffs argued for the first time at oral argu-
ment that its order was inconsistent with Rule 4(m)’s
clear “without prejudice” requirement.
Both the district court and the Plaintiffs correctly recog-
nize that any refiled suit would be time-barred. That bar
effects a result similar to a dismissal with prejudice:
“[I]f the statute of limitations has meanwhile expired it
will be the limitations defense that greets [any] new
action, which will make the case just as dead as a dis-
position on the merits . . . .” David Siegel, Practice Com-
mentary on Fed. R. Civ. P. 4, C4-38, reprinted at 28
U.S.C.A. Fed. R. Civ. P. 4 at 211 (West 2008). And in
similar circumstances, we previously noted that
dismissal with prejudice was appropriate where the
plaintiff did not meet Rule 4(m) and where the statute
of limitations expired during the federal case. Conover v.
Lein, 87 F.3d 905, 908 (7th Cir. 1996). Accordingly, we
find no error in the district court’s dismissals.
III. C ONCLUSION
The Plaintiffs did not serve Officer Gallegos with
process within the time allotted by the Federal Rules of
Civil Procedure. Because the district court did not abuse
its discretion in declining to extend the period in which
the Plaintiffs could serve him, we A FFIRM its dismissal of
the Plaintiffs’ suit.
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