# Kurtzeborn v. Ritzhaupt

> District Court, S.D. Illinois · January 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10155931

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** January 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CHARLES KURTZEBORN, )
)
Plaintiff, )
)
vs. ) Case No. 3:22-cv-00746-DWD
)
MICHELLE RITZHAUPT )
)
Defendant. )

MEMORANDUM AND ORDER

DUGAN, District Judge:
Pending before the Court is a Motion to Dismiss filed by Defendant Michelle
Ritzhaupt (Doc. 5). Plaintiff Charles Kurtzeborn filed a Response (Doc. 8), and on October
4, 2022, the Court held a hearing on the matter (Doc. 8). For the reasons set forth below,
the Motion to Dismiss is GRANTED with prejudice.
I. BACKGROUND
The parties to this action were involved in a car accident on November 11, 2014.
On November 9, 2016, two days before the expiration of the statute of limitations, Plaintiff
filed his initial complaint in Madison County Circuit court alleging he sustained injuries
as a result of the car accident (Doc. 6-1). The complaint, however, was never served, and,
on July 24, 2019, the action was dismissed for lack of prosecution. Id. Plaintiff refiled the
complaint on July 22, 2020 (Doc. 6-2). Service of process, however, was not completed
until March 18, 2022 – over five years and four months after the expiration of the statute
of limitations. Id.
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On April 15, 2022, Defendant removed the action on the basis of diversity
jurisdiction (Doc. 1) and shortly thereafter filed a motion to dismiss for insufficient service

of process (Docs. 5 and 6). Defendant’s motion to dismiss is supported by records from
the Madison County circuit court (Docs. 6-1, 6-2, 6-4, and 6-5), and by an affidavit
indicating that, from November 2014 until approximately May 2017, she resided at an
address in Brighton, Illinois (Doc. 6-3). This address was set forth on her driver’s license,
and she received mail at that address (Doc. 6-3). Defendant moved to an address located
in Bucyrus, Ohio in May 2017. Id. She had her driver’s license changed to reflect the new

address and she received mail at the new address upon establishing residence there. Id.
II. LEGAL STANDARD
Defendant moves to dismiss the Complaint under Federal Rule of Civil Procedure
12(b)(5) for insufficient service of process. Federal Rule 12(b)(5) provides that a party may
move to dismiss a complaint based upon insufficient or delayed service of process. See

Cardenas v. City of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011). Analysis under Federal Rule
12(b)(5) may include consideration of matters outside the pleadings. See Harris v. Gland-
O-Lac Co., 211 F.2d 238 (6th Cir. 1954) (wherein the court relied on affidavits in quashing
service). “In determining whether service has been properly made [under Federal Rule
12(b)(5) ], ‘the facts are viewed in a light most favorable to the non-moving party.’

” United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., Nos. 2:07-CV-358 JVB, 3:08-
CV-60-JVB, 2009 WL 2762763, at *1 (N.D.Ind. Aug.26, 2009); see also Purdue Research
Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir .2003) (discussing the standard
2
governing a similar motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) for
lack of personal jurisdiction). However, a plaintiff's diligence as it relates to service of

process “must be established factually, by affidavits in conformance with the rules of
evidence.” Mayoral v. Williams, 219 Ill.App.3d 365, 162 Ill.Dec. 382, 579 N.E.2d 1196, 1199
(Ill.App.Ct.1991). See also Bachenski v. Malnati, 11 F.3d 1371, 1376 (7th Cir. 1993) (Plaintiff
has the burden of establishing sufficiency of service of process, or to demonstrate good
cause for any failure to effect service within the required time limit).
Here, because Defendant removed this lawsuit from state court, Illinois Supreme

Court Rule 103(b)—instead of Rule 4(m)—governs whether this suit should be dismissed
based upon insufficient service of process. FED. R. CIV. P. 81(c); Romo v. Gulf Stream Coach,
Inc., 250 F.3d 1119, 1122 (7th Cir. 2001) (“federal courts may apply state procedural rules
to pre- removal conduct,” including “the timeliness of service of process.”); Allen v.
Ferguson, 791 F.2d 611, 616 n. 8 (7th Cir. 1986) (“In determining the validity of service

prior to removal, a federal court must apply the law of the state under which the service
was made....”).
Rule 103(b) “calls for plaintiffs to ‘exercise reasonable diligence’ in serving process,
as measured by ‘the totality of the circumstances.’ ” Kimbrell v. Brown, 651 F.3d 752, 754
(7th Cir. 2011). In calculating the time spent in effectuating service for purposes of a Rule

103(b) motion, Illinois courts consider the periods of time before a dismissal for lack of
prosecution and after a refiling as separate time frames that must be added together in
assessing diligence. See Case v. Galesburg Cottage Hospital, 880 N.E.2d 171 (Ill. 2007);
3
Martinez v. Erickson, 127 Ill.2d 112, 119, 535 N.E.2d 853 (1989) (“A ruling on a Rule 103(b)
dismissal motion, made following service of process of a refiled action, therefore requires

an examination of the plaintiff's diligence in the original action as well as in the refiled
action even if service was never effected in the original action”).
When deciding whether to grant dismissal pursuant to Rule 103(b), Illinois courts
look to the following seven factors: (1) the length of time used to obtain service of process,
(2) the activities of the plaintiff, (3) the plaintiff’s knowledge of the defendant’s location,
(4) the ease with which the defendant’s whereabouts could have been ascertained, (5) the

defendant’s knowledge of the pendency of the lawsuit, (6) special circumstances which
would affect the plaintiff’s efforts, and (7) actual service on the defendant. Segal v. Sacco,
136 Ill. 2d 282, 287, 144 Ill.Dec. 360, 555 N.E.2d 719. These factors must be contemplated
in light of the purpose of Rule 103(b). Id. Nevertheless, it is settled that dismissal under
Rule 103(b) is well within the discretion of the trial court. Id. at 286. “In determining

whether there has been an abuse of discretion, we may not substitute our judgment for
that of the trial court, or even determine whether the trial court exercised its discretion
wisely.” Simmons v. Garces, 198 Ill. 2d 541, 568, 261 Ill.Dec. 471, 763 N.E.2d 720 (2002).
III. DISCUSSION
Here, the plaintiff filed his initial Complaint only two days before the statute of

limitations expired. From an examination of the Court’s docket sheet, a Summons was
issued the day the initial Complaint was filed, November 9, 2016. Thereafter, Alias
Summons was then issued on February 1, 2017, almost three months after the expiration
4
of the statute of limitations. Approximately four months later, on June 13, 2017, another
Alias Summons was issued. There was no other activity, including service, that occurred

in the initial lawsuit until the day it was dismissed for lack of prosecution on July 24,
2019, two years and eight months since the Complaint was filed and the limitation
expired (Doc. 6-1).
The case was refiled on July 22, 2020, and a Summons issued the same day. It was
never served. Another Summons was issued on November 25, 2020, over four months
after refiling and over four years after the expiration of the applicable statute of

limitations. Once again, the Summons was not served. The case remained inactive until
March 2, 2022, when an Alias Summons was issued. The Alias Summons was finally
served on Defendant on March 18, 2022, over five years and four months after the
expiration of the statute of limitations (Doc. 6-2 and 6-3).
Plaintiff bears the burden of showing the exercise of reasonable diligence in the

service of process and must provide a reasonable explanation for any apparent lack of
diligence. Kramer v. Ruiz, 2021 IL App (5th) 200026, ¶ 21, 197 N.E.3d 710, 715, reh'g denied
(June 23, 2021), appeal denied, 175 N.E.3d 137 (Ill. 2021) The Plaintiff has failed to meet
his burden here. And, given these facts, it is overtly clear that Plaintiff did not exercise
reasonable diligence to obtain service on Defendant, in either the initial suit or the current

one, and Plaintiff has not offered any meaningful explanation for his lack of diligence.
At the hearing held on October 4, 2022, Plaintiff’s counsel reiterated several
deficient arguments raised in his brief. First, Plaintiff’s counsel argued that the crux of
5
103(b)’s purpose is to enable parties to defend themselves in a timely manner and that
this suit should not be dismissed simply because the Defendant may or may not have
known about the initial 2016 lawsuit. This argument is not well taken as there are a
number of other factors to be considered in a 103(b) analysis. See supra Segal at 287. If this
were truly the paramount factor to be considered, defendants could be sued years after
lawsuits are initiated, without service of process, by the most negligent of plaintiffs. It is
surely not the duty of a defendant to prepare for a lawsuit that may or may not be
lawfully served upon them at some hypothetical, distant date in the future. Second,
Plaintiff's counsel seemed to argue that several of the cases Defendant's counsel cited in
their brief dealing with 103(b) dismissals were distinguishable on the basis that they dealt
with other classes of claims —namely, medical malpractice, personal injury, and premises
liability. Given that 103(b) expressly does not itself limit itself to certain classes of claims,
this argument is likewise not well taken and the Court sees no relevance.
In the most apposite case discussed by the parties here, Kramer, supra, a personal
injury automobile suit was dismissed for lack of reasonable diligence and service under
103(b) after an 8-month delay in service of process. This is a far cry from the delay
evidenced here. Further, as the parties here have acknowledged, multiple 103(b)
dismissals have been affirmed across Illinois dealing with far shorter periods of time. See
Kole v. Brubaker, 325 Ill.App.3d 944, 955 (IIL. App. Ct. 2001) (delay of nine months in effectuating
service of process); Mular v. Ingram, 2015 Ill. App. 142439 (Ill. App. Ct. 2015) (delay of 10 12
months); Long v. Elborno, 376 Ill.App.3d 970, 980 (IIL App. Ct. 2007) (delay of seven months);

Tischer v. Jordan, 269 I\L.App.3d 301, 308 (Ill. App. Ct. 1995) (delay of six months). Length of
time is certainly not dispositive, but the record here is completely void of any legitimate
explanation as to why service occurred five years and four months after the initial suit was filed.
‘Accordingly, in light of the lengthy delay in service, Plaintiff's failure to establish that he
exercised reasonable diligence in attempting to serve process, and the absence of extraordinary
circumstances, the Court concludes that the action must be dismissed with prejudice pursuant to
Rule 103(b).
IV. CONCLUSION
Defendant Michelle Ritzhaupt’s Motion to Dismiss (Docs. 5) is GRANTED. The action
is dismissed with prejudice pursuant to Rule 103(b). The Clerk is DIRECTED to close the
case and to enter judgment accordingly.
SO ORDERED.
Dated: January 19, 2023 Dae L qT
DAVIDW.DUGAN
United States District Judge

Contrary to Justice Cates dissent in Kramer, supra, it is not an abuse of discretion under Rule 103(b)
for a Trial Court to not address all possible factors when a plaintiff fails to provide evidence in support
of due diligence or an explanation for the failure to exercise due diligence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10155931. Public record. Not legal advice.