In the
United States Court of Appeals
For the Seventh Circuit
No. 20‐2017
KIRK C. JONES,
Plaintiff‐Appellant,
v.
KEVIN RAMOS, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:19‐cv‐00166‐DRL‐MGG — Damon R. Leichty, Judge.
ARGUED JANUARY 19, 2021 — DECIDED SEPTEMBER 3, 2021
Before ROVNER, HAMILTON, and ST. EVE, Circuit Judges.
ROVNER, Circuit Judge. The district court dismissed this
personal injury case without prejudice for failure to timely
serve the summons and complaint on the defendants. Because
the plaintiff had filed the suit only two days short of the
limitations period, this ruling effectively ended the litigation.
We find no abuse of discretion in the district court’s decision,
and so we affirm.
2 No. 20‐2017
This diversity suit arose from an automobile accident that
occurred on October 28, 2016. The plaintiff, Jones, was a
passenger in an Uber car owned by Jerilyn Langwith and
driven by Daniel Waterhouse. That car was struck by a second
vehicle owned by Mario Ramos and driven by Kevin Ramos.
Uber and those four individuals are the defendants. Although
the accident occurred in Indiana, the Ramos defendants are
citizens of New Jersey. Jones, who was injured in the accident,
filed suit in federal court in New Jersey on October 26, 2018,
two days before the applicable statute of limitations was due
to run. After the plaintiff’s attorney failed to effect service of
the summons and complaint on any of the defendants within
the ninety‐day period prescribed by the Federal Rules of Civil
Procedure, the New Jersey court issued a Notice of Call for
Dismissal Pursuant to Fed.R.Civ.P. 4(m) (“Notice”) on Febru‐
ary 5, 2019. The Notice warned that the suit would be dis‐
missed on March 5, 2019 unless the plaintiff established that
service was effected within the ninety‐day period by filing
proof of service before the March 5 return date.
On March 5, 2019, instead of providing proof of service or
attempting to serve the summons and complaint on the
defendants, Jones’s counsel filed a motion to change venue to
the Northern District of Indiana, asserting that the Uber driver,
a citizen of Indiana, was not subject to personal jurisdiction in
New Jersey. The New Jersey district court granted that motion,
and directed Jones to serve a copy of the venue order on the
defendants within five days. The plaintiff’s counsel served the
venue order on the defendants but still did not serve the
summons and complaint. Three months later, on June 10, 2019,
Waterhouse moved to dismiss the case on two grounds: first,
No. 20‐2017 3
under Rule 12(b)(5), for failure to timely serve the summons
and complaint as set forth in Rule 4(m); and second, under
Rule 12(b)(6), for failing to properly commence the case within
the statute of limitations.1 Nine days later, new counsel for
Jones entered an appearance in the Indiana district court, and
the next day began the process of serving the summons and
complaint on all of the defendants. Ultimately, the summons
and complaint was served on all of the defendants between
June 21 and June 27, 2019, between 238 to 244 days after the
filing of the complaint. Within weeks, Uber and Langwith
joined Waterhouse’s motion to dismiss, and on August 12,
2019, the Ramos defendants filed their own motion seeking
dismissal for the same reasons given by Waterhouse.
Jones asked the court to exercise its discretion to deny the
motion to dismiss, noting that all defendants had now been
served, and asserting that none of the defendants were
prejudiced by the delay. Jones pointed out that the defendants
were aware of the litigation within days of the change of venue
at the latest, and that some of the delay in serving the sum‐
mons and complaint was due to efforts to find new counsel in
Indiana, who then moved quickly to effect service. Jones
1
Waterhouse’s theory for dismissal under Rule 12(b)(6) was that the nearly
blank summons that Jones submitted to the New Jersey District Court was
insufficient to commence the litigation, and so the suit was time‐barred
under the statute of limitations. The district court concluded that the
summons was sufficient and dismissed on the alternate ground that Jones
failed to timely serve the summons and complaint. Because we resolve this
appeal on that second issue, we decline to address whether the summons
was sufficient to commence the litigation, and we will not address this issue
further.
4 No. 20‐2017
argued that the New Jersey court could have dismissed the
case rather than allow the change of venue, but did not do so
and asked the Indiana court to honor that decision. Jones
explained that even dismissal without prejudice would
essentially end the case because the limitations period had
passed.
The Indiana district court found that there was no good
cause for the delay, and declined to exercise its discretion to
grant an extension. The court noted that Jones’s New Jersey
counsel not only failed to follow Rule 4(m) but also ignored the
Notice that the court issued, warning of dismissal by March 5,
2019 if he failed to comply. Moreover, after the change of
venue, Jones still did not effect service of process, and instead
waited until after one of the defendants moved to dismiss the
case before serving the summons and complaint. The court
considered the non‐exhaustive list of factors that we set forth
in Cardenas v. City of Chicago, 646 F.3d 1001 (7th Cir. 2011), and
concluded that the circumstances in this case did not “invite a
permissive extension.” Jones had missed three opportunities to
serve the defendants over the course of approximately 240
days: first, within the ninety‐day period prescribed by Rule
4(m); second, when the New Jersey court issued the Notice
warning of imminent dismissal by March 5, 2019; and third, for
three months after the change in venue. Aware that dismissal
without prejudice would effectively end the suit because of the
limitations period, the court nevertheless dismissed.
Jones moved for reconsideration under Rule 60(b), attach‐
ing an affidavit from his New Jersey lawyer explaining his
efforts at settling the case prior to and after filing the com‐
plaint, his difficulties in finding local counsel in Indiana (where
No. 20‐2017 5
he is not licensed to practice law) after the change in venue,
and his personal struggles with the illness and death of a
family member during the time that the motion to dismiss was
under consideration. The district court denied the motion,
finding that Jones did not meet the stringent standards for
relief under Rule 60(b), and noting that all of the information
provided in the affidavit of his New Jersey lawyer was
available prior to the ruling on the motion to dismiss. Finally,
the court found that the information provided in the affidavit
demonstrated that the prejudice to the defendants occasioned
by the delay was greater than had been apparent earlier, and
that the case for dismissal under Rule 4(m) was stronger. The
court denied the motion. Jones appeals.
We review the court’s decision whether to dismiss or
extend the period of time for service under Rule 4(m) for abuse
of discretion. Henderson v. United States, 517 U.S. 654, 662–63
(1994); Cardenas, 646 F.3d at 1005; Fed. R. Civ. P. 4(m). We
review a court’s decision to deny relief under Rule 60(b) for an
abuse of discretion only. Adams v. United States, 911 F.3d 397,
403 (7th Cir. 2018). Rule 60(b) provides relief only in extraordi‐
nary situations where a judgment is the inadvertent product of
special circumstances and not merely an erroneous application
of law. Adams, 911 F.3d at 403 (citing Kennedy v. Schneider Elec.,
893 F.3d 414, 419 (7th Cir. 2018)). Once a district court has
denied relief, “Rule 60(b) proceedings are subject to only
limited and deferential appellate review.” Gonzalez v. Crosby,
545 U.S. 524, 535 (2005).
The factors that courts typically consider when deciding
whether to grant an extension of time for service of process
include but are not limited to: whether the defendant’s ability
6 No. 20‐2017
to defend would be harmed by an extension; whether the
defendant received actual notice; whether the statute of
limitations would prevent refiling of the action; whether the
defendant evaded service; whether the defendant admitted
liability; whether dismissal will result in a windfall to a
defendant; whether the plaintiff eventually effected service;
whether the plaintiff ever requested an extension from the
court due to difficulties in perfecting service; and whether the
plaintiff diligently pursued service during the allotted period.
Cardenas, 646 F.3d at 1006–07. “Even if the balance of hardships
appears to favor an extension, the district court retain[s] its
discretion to hold the Plaintiffs accountable for their ac‐
tions—or, more accurately, inaction—by dismissing the case.”
Cardenas, 646 F.3d at 1007. See also Panares v. Liquid Carbonic
Indus. Corp., 94 F.3d 338, 341 (7th Cir. 1996) (citing the Advi‐
sory Committee Note to Rule 4(m) as to what factors a court
may want to consider when deciding to exercise its discretion,
including whether the applicable statute of limitations would
bar the refiled action, or whether the defendant is evading
service or conceals a defect in attempted service).
The district court methodically considered these factors in
deciding the motions to dismiss, and then reweighed them in
light of the additional information provided in the Rule 60(b)
motion. In each instance, some factors favored granting an
extension and others favored dismissal. In its initial ruling, the
court noted that some defendants had actual notice prior to
service, that the defendants had not experienced real prejudice,
and all were eventually served. On the other side of the
equation, none of the defendants had evaded service, and
through no fault of their own would now have to defend the
No. 20‐2017 7
suit long after the statute of limitations had expired and
memories had begun to fade. Moreover, Jones never moved to
extend the time for service in either New Jersey or Indiana, and
Jones’s New Jersey lawyer did not diligently pursue service.
After the filing of the Rule 60(b) motion, the court learned that
although some of the defendants were aware that litigation
was imminent because of pre‐filing settlement discussions,
other defendants did not have actual notice of the suit prior to
receiving the venue ruling. And considering the information
provided in the affidavit filed with the Rule 60(b) motion, the
court found that the prejudice to the defendants was more
manifest than the original record revealed. On balance, in both
its original ruling and its Rule 60(b) ruling, the court declined
to extend the time for service. “If a district court properly sets
out the relevant law and makes no factual findings that are
clearly erroneous, an abuse of discretion exists only if its
decision was arbitrary and unreasonable.” Cardenas, 646 F.3d
at 1007 (internal quotation marks omitted). Here, the court
accurately set out the applicable law and made no clearly
erroneous factual findings; the decision to deny relief was
neither arbitrary nor unreasonable. And Jones does not come
close to meeting the standard for overturning the district
court’s Rule 60(b) ruling. There was no abuse of discretion in
either ruling.
Only one matter remains. Jones asks that we adopt a rule
that the Fifth Circuit employs when dismissal without preju‐
dice effectively ends the litigation because of the running of the
limitations period. In the Fifth Circuit, if the applicable statute
of limitations likely bars future litigation, a district court’s
dismissal of claims under Rule 4(m) is reviewed under the
8 No. 20‐2017
same heightened standard used to review a dismissal with
prejudice. Thrasher v. City of Amarillo, 709 F.3d 509, 512 (5th Cir.
2013). Because dismissal with prejudice is a severe sanction
that deprives a litigant of the opportunity to pursue his claim,
the Fifth Circuit holds that it is warranted only where a clear
record of delay or contumacious conduct by the plaintiff exists
and a lesser sanction would not better serve the interests of
justice. The delay must be lengthy and must be characterized
by significant periods of total inactivity Thrasher, 709 F.3d at
512–13. See also Millan v. USAA Gen. Indem. Co., 546 F.3d 321,
326 (5th Cir. 2008) (setting forth grounds for dismissal with
prejudice).
In ruling on a motion to dismiss under Rule 4(m), our
circuit requires only that the district court consider whether
dismissal without prejudice will effectively end the litigation
as one factor to be weighed with others. We have required no
heightened standard for motions to dismiss under Rule 4(m)
in cases that were filed close to the end of the limitations
period. In fact, we have warned that an attorney who files suit
when the statute of limitations is about to expire must take
special care to achieve timely service of process because a
slip‐up can be fatal. Tuke v. United States, 76 F.3d 155, 156 (7th
Cir. 1996). We see no reason to revisit the existing standards in
our circuit. The district court did not abuse its discretion when
it reasonably applied prevailing Seventh Circuit law.
AFFIRMED.