Strong v. Indiana Department of Correction

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ANDRE STRONG,

Plaintiff,

v. CASE NO. 3:22-CV-428-JD-MGG

INDIANA DEPARTMENT OF

CORRECTION, et al.,

Defendants.

OPINION and ORDER

Ripe before the Court are five nondispositive motions [DE 24, 33, 36, 49 and 54]

and two motions to dismiss [DE 12 and 28], all of which relate to issues with service of

several defendants in this action. Through this Opinion and Order, the Court will

resolve the nondispositive motions. The motions to dismiss will be addressed by

separate order in due course.

I. RELEVANT BACKGROUND

On June 1, 2022, Plaintiff filed a complaint raising multiple claims against

inmates, guards, the warden, prison officials, and the Indiana Department of Correction

(“IDOC”) (collectively “the State Defendants”)1, related to an incident on August 24,

2020, while Plaintiff was incarcerated at Miami Correctional Facility (“MCF”). The

1 Plaintiff also raised claims against a prison doctor and Wexford of Indiana, LLC, who jointly filed a

motion to dismiss challenging the sufficiency of service on the doctor. [See DE 12]. Neither the doctor nor

Wexford are involved in the five nondispositive motions and are therefore not mentioned here.

deadline for Plaintiff to perfect service on Defendants was August 30, 2022—ninety

days after the complaint was filed. See Fed. R. Civ. P. 4(m).

Plaintiff attempted service of the summons and complaint on individual State

Defendants William Hyatte, John Doe Guardsman 1, Officer Caleb Tague, Sergeant

Hensley, Sergeant Callaway, Sergeant Jordan Amaly, Counselor Grove, Counselor

Rennsler, T. Riggle, Shawna Morson, and Sergeant Moore via certified mail in early

June 2022. Plaintiff mailed the summonses and complaint to MCF because the eleven

individual State Defendants were employed there at all times relevant to his claims in

this action. Service was accepted as to Hyatte, Hensley, and Riggle but the other eight

service mailings were refused and marked “return to sender” because those individual

Defendants were no longer employed by IDOC. Plaintiff’s counsel received USPS

tracking notifications on or around June 14, 2022, showing that the refused service

mailings were “Delivered” to his counsel’s office, not the relevant individual

Defendants. [DE 33-1].

On August 2, 2022, Plaintiff sought and received the Court’s permission to

engage in limited discovery to identify four John Doe defendants including one

guardsman and three inmates. [See DE 25]. On August 18, 2022, Plaintiff also attempted

service on four of the individual State Defendants2 for a second time at MCF—this time

using a private process server. However, these summonses were returned unexecuted

with notes that none of the four were employed at MCF anymore. On the same day,

2 Hyatte, Amaly, Morson, and Tague

Plaintiff filed a Motion to Substitute Parties [DE 24] after learning the full names of five

of the State Defendants3. Plaintiff later filed his Motion to Amend Complaint and

Substitute Parties [DE 36] seeking to incorporate the substitutions requested in the

pending Motion to Substitute into his complaint along with clarification of the name of

a sixth State Defendant4, the newfound name of the Doe Guardsman, and related facts.

On August 19, 2022, before Plaintiff’s Motion to Substitute became ripe, Attorney

John Twohy of the law firm Eichhorn & Eichhorn entered his appearance for IDOC and

all the individual State Defendants, including the eight unserved Defendants5. [DE 27].

Also on August 19th, Mr. Twohy filed a Motion to Dismiss on behalf of the eight

unserved individual State Defendants arguing lack of personal jurisdiction and

insufficient service of process [DE 28]. Plaintiff has since filed a brief in opposition to

the Motion to Dismiss [DE 48] and a Motion to Strike the unserved Defendants’ reply

brief as untimely. [DE 54].

In the meantime, Defendants IDOC, Hyatte, Hensley, and Riggle filed their

answer to Plaintiff’s complaint on August 22, 2022. [DE 34]. On that same day, alias

summonses were issued for Hyatte, Morson, and Tague at private addresses. [DE 31].

Plaintiff also filed his Motion for Extension of Time to Complete Service seeking an

additional 30 days to complete service on the State Defendants. [DE 33]. One day later,

additional alias summonses were issued as to Defendants Amaly, Callaway, John Doe

3 Hensley, Callway, Grove, Rennsler, and Moore

4 Amaly

5 The eight unserved individual State Defendants are Amaly, Callaway, Tague, Grove, Rennsler, Morson,

Moore, and John Doe Guardsman 1. Attorney Twohy joined his Eichhorn & Eichhorn colleagues,

Attorneys Carly Brandenburg and Zachary Peifer, who had previously entered their appearances for

IDOC, Hensley, Hyatte, and Riggle. [DE 19 & 21].

(Inmate 3), Grove, Hensley, Moore, Rennsler, and Riggle, as well as Hyatte, Morson,

and Tague, all in care of Attorney Twohy at his law firm, Eichhorn & Eichhorn. [DE 35].

Plaintiff then filed proofs of service on August 24, 2022, stating that summonses had

been returned executed as to all but the Doe Defendant6. The proofs of service all

indicate that the summonses were served on Rebecca Turnquist7, Office Manager at

Eichhorn & Eichhorn, on August 24, 2022.

After the original Rule 4(m) deadline for service passed on August 30, 2022, ten

Defendants8 filed a Motion to Quash Service[DE 49] arguing that Plaintiff’s service to

Mr. Twohy at his law firm’s office did not constitute proper service of process.

II. PLAINTIFF’S MOTION TO SUBSTITUTE [DE 24] AND MOTION TO AMEND

COMPLAINT [DE 36]

Defendants were afforded ample time to file a response brief related to these two

Motions. See N.D. Ind. L.R. 7-1(d)(3)(A). No responses were filed. As such, the Court

can only assume that Defendants do not object to Plaintiff’s Motions.

Notably, Plaintiff’s Motion to Substitute and Motion to Amend seek essentially

the same relief—to clarify the record after discovering the full and proper names of

certain individual State Defendants. With good cause shown and no objection,

Plaintiff’s Motion to Amend is GRANTED. [DE 36]. Plaintiff’s Motion to Substitute is

accordingly DENIED AS MOOT. [DE 24].

6 Amaly [DE 38], Callaway [DE 39], Grove [DE 40], Hensley [DE 41], Hyatte [DE 42], Moore [DE 43],

Morson [DE 44], Rennsler [DE 45], Tague [DE 46], and Riggle [DE 47]

7 Some of the proofs of service spell the Office Manager’s name as “Rebecca Turnquist” and others spell

her name as “Rebecca Turnquest.” Based on the spelling used by Defendants in their Motion to Quash

[DE 49], the Court will refer to the Eichhorn & Eichhorn Office Manager as Rebecca Turnquist.

8 Amaly, Callaway, Grove, Hensley, Hyatte, Moore, Morson, Rennsler, Tague, and Riggle

III. PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO COMPLETE SERVICE [DE 33] AND

THE STATE DEFENDANTS’ MOTION TO QUASH SERVICE [DE 49]

Under Fed. R. Civ. P. 4(m), which requires service of defendants within 90 days

after the complaint is filed, Plaintiff’s deadline for service of all Defendants in this

action was August 30, 2022. On August 22, 2022, Plaintiff filed his instant Extension

Motion [DE 33] because he had not yet achieved service on the State Defendants. On

August 24, 2022, two days after Plaintiff filed the extension Motion and about six days

before his Rule 4(m) service deadline passed, Plaintiff filed proofs of service for ten of

the individual State Defendants. [DE 38–47]. Faced with what appears to be timely

service, this Court would be inclined to deny Plaintiff’s Extension Motion as moot.

However, the ten State Defendants have since filed their Motion to Quash Service [DE

49] challenging the propriety of the August 24th proofs of service.

A. Motion to Quash [DE 49]

When a defendant challenges the sufficiency of service, the plaintiff bears the

burden of demonstrating that proper service occurred. See Cardenas v. City of Chicago,

646 F.3d 1001, 1005 (7th Cir. 2011); see also Ali v. Gary Police Dep’t, No. 3:20-CV-765 JD,

2022 WL 2981667, at *1 (N.D. Ind. July 28, 2022). In their instant Motion to Quash, the

individual State Defendants challenge the sufficiency of process citing Fed. R. Civ. P.

12(b)(5) but do not ask this Court to dismiss Plaintiff’s claims against them. Rather,

Defendants argue generally that Plaintiff’s August 24th service of process is improper

because it was served upon their attorney. In other words, Defendants challenge

Plaintiff’s designated person for service and his method of service.

Fed. R. Civ. P. 4(c) requires service of a summons accompanied by a copy of the

complaint. Rule 4(e) establishes multiple methods of effective service. As relevant here,

an individual

may be served in a judicial district of the United States 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;

[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). Consistent with Rule 4(e)(1), proper service may also be

achieved by the methods authorized through Indiana Rule of Trial Procedure

4.1(A), which specifies methods of service upon individuals. See Directbuy, Inc. v.

Next Level Mktg., Inc., No. 2:09 cv 84, 2010 WL 4386525, at *1 (N.D. Ind. Oct. 28,

2010). Specifically, Trial Rule 4.1(A) authorizes the following methods for service

upon individuals:

(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.

Id. Further, “[w]henever service is made under Clause (3) or (4) of subdivision

(A), the person making the service also shall send by first class mail, a copy of the

summons and the complaint to the last known address of the person being

served, and this fact shall be shown upon the return.” Id. 4.1(B).

After filing his complaint on June 1, 2022, Plaintiff used more than one acceptable

method in his attempt to effectuate service. In June, Plaintiff perfected service on some

of the individual State Defendants via certified mail to MCF, their place of employment.

See Ind. R. Trial P. 4.1(A)(1). In August, Plaintiff tried to effectuate service on the

remaining individual State Defendants by private process server at MCF. See Fed. R.

Civ. P. 4(e)(2)(A); Ind. R. Trial P. 4.1(A)(2). When those summonses were returned

unexecuted, Plaintiff began trying to achieve service on the remaining individual State

Defendants at their last known residential addresses as evidenced by the alias

summonses issued on August 22, 2022. [DE 33]. But then, Attorney Twohy entered his

appearance for all the individual State Defendants. [DE 27]. Plaintiff—through his

counsel—quickly, and before the service deadline passed, served alias summonses

along with copies of the complaint for the individual State Defendants upon Mr. Twohy

at the Hammond office of Eichhorn & Eichhorn, his law firm. Plaintiff also mailed a

copy of the summons and complaint to each individual State Defendant’s last known

address, which was noted in the proofs of service Plaintiff filed on August 24, 2022. [DE

38–47]; see also Ind. R. Trial P. 4.1(B). It is this last effort to effectuate service through

their attorney, Mr. Twohy, that the individual State Defendants now challenge.

“[N]otice to an attorney is imputed to a client . . . when the attorney is of record

and has entered an appearance.” Bennett v. Circus, U.S.A., 108 F.R.D. 142, 148–49 (N.D.

Ind. 1985) (citing State ex rel. Brubaker v. Pritchard, 138 N.E.2d 233, 235 (1956) (“When an

attorney enters his appearance of record in any litigation so long as such attorney

remains the existing attorney of record, he is the agent of the party, and the party is

bound by such attorney’s knowledge and notice of the proceedings in that case so long

as it is pending.”); Smith v. Ind. State Bd. of Health, 303 N.E.2d 50, 56 (Ind. Ct. App. 1973),

cert. denied, 419 U.S. 836 (1974) (finding notice of contempt proceedings to the

defendants’ attorney was sufficient notice). Indeed, notice to defendants of a lawsuit

against them is one of the goals of service. Cochran v. Barnes, Cause No. 2:08-CV-0358

WL, 2010 WL 4555510, at *2 (N.D. Ind. Feb. 1, 2010). Service of process also gives the

court personal jurisdiction over a defendant. Id. As a result, “actual notice of a lawsuit,

without service, is insufficient to give the court the jurisdiction necessary to allow it to

enter a judgment against a defendant.” Id.; see also Bennett, 108 F.R.D. at 149.

No rule or legal authority designates service upon a defendant’s attorney as “a

valid substitute for service of process on the defendants.” Lewellen v. Morley, 909 F.2d

1073, 1077 (7th Cir. 1990). Yet Indiana law contemplates successful service of process

“made upon . . . an individual acting in a representative capacity,” specifically an agent

“as provided by rule, statute or valid agreement.” Ind. R. Trial P. 4.1(A)(4). Whether the

State Defendants’ counsel here qualifies as an agent under Rule 4.1(A) is a matter of

dispute. Indiana law is silent as to the sufficiency of service on an attorney as an agent

of a defendant under 4.1(A)(4). Bennett, 108 F.R.D. at 148. The law is clear, however, that

“[i]n order for a court to find that a person acted as a party’s agent by appointment or

agreement, there must be evidence of that appointment or agreement.” Lozanovski v.

City of Crown Point, No. 2:15-CV-454-TLS, 2017 WL 347451, at *4 (N.D. Ind. Jan. 24, 2017)

(quoting Goodman v. Clark, No. 2:09-CV-355, 2010 WL 2838396, at *8 (N.D. Ind. July 12,

2010) (citing Schultz v. Schultz, 436 F.2d 635, 638–39 (7th Cir. 1971))).

Here, the State Defendants, through Mr. Twohy, argue that he was not their

agent for purposes of service of process. Additionally, they contend that Ms. Turnquist,

the Eichhorn & Eichhorn office manager who accepted the service documents, was not

connected in any way to the instant case and was not authorized to accept service on

behalf of any of the State Defendants. Citing Bennett v. Circus U.S.A., State ex rel.

Brubaker v. Pritchard, and Smith v. Ind. State Bd. of Health, Plaintiff asserts that Mr. Twohy

is the State Defendants’ agent making service upon him proper under Ind. R. Trial P.

4.1(A)(4). The record here lacks persuasive evidence either way.

Despite Plaintiff’s conclusion to the contrary, the courts in Bennett, Brubaker, and

Smith do not clearly establish that an attorney is automatically his client’s agent for

purposes of service of process. All three cases are distinguishable. In Bennett, the court

assessed service upon a law firm that represented a defendant in the past on other

matters unlike the situation here where Plaintiff claims to have perfected service on the

State Defendants’ attorney of record who entered his appearance on their behalf before

the Rule 4(m) service deadline passed. See 108 F.R.D. at 148–49. Additionally, the

Brubaker and Smith courts only assessed whether notice of civil contempt proceedings

within an existing case to an attorney of record was imputed to his client, not agency for

purposes of service of process to initiate a case. 138 N.E.2d at 235. In the end, all three

courts found that notice to an attorney of record in a particular case is imputed to the

client party because of the agency relationship between them but do not discuss Rule

4.1(A)(4) appointment or agreement of agency for the purpose of service of process. See

Bennett, 108 F.R.D. at 148–49; State ex rel. Brubaker, 138 N.E.2d at 235; Smith, 303 N.E.2d

at 56. Yet attorneys typically do not enter an appearance in litigation for a specific party

without some kind of agreement of agency—a point accepted by Mr. Twohy and the

State Defendants. Therefore, while Plaintiff has not presented any evidence of an

appointment or agreement that the State Defendants appointed or agreed to Mr. Twohy

as their agent for purposes of service of process, it is not far-fetched to infer that the

State Defendants’ representation agreement with Mr. Twohy may have authorized

counsel to accept service of process. The inference alone, however, does not establish

the necessary agency. See Lozanovski, 2017 WL 347451, at *4.

With that said, the State Defendants have not clearly shown that Mr. Twohy is

not their agent for service of process. In briefing the Motion to Quash, Mr. Twohy and

the State Defendants simply state—without any further evidentiary support—that the

scope of Mr. Twohy’s representation was to file Defendants’ pending motion to dismiss

[DE 28] thereby preserving Defendants’ objections to personal jurisdiction. [DE 56 at 2].

Confusingly, they acknowledge that there are no longer general and special

appearances in federal courts but then contend that Mr. Twohy’s representation here is

limited to the motion to dismiss filed contemporaneously with his appearance.

Moreover, the cases the State Defendants rely upon to show that Mr. Twohy was

not appointed their agent for service of process are inapposite. Applying Illinois law in

Lewellen v. Morley, the Seventh Circuit found that counsel’s unfulfilled promise to

appear on behalf of the defendants did not relieve the plaintiff of his duty to execute

proper service of process upon the defendants. 909 F.2d at 1076–77. In Cochran v. Barnes,

this Court found service via an improper means (i.e., certified mail to a former

employer) insufficient despite appearance of counsel on the defendants’ behalf. 2010

WL 455510, at *7. In Schultz v. Schultz, 436 F.2d 635, 638–39 (7th Cir. 1971), the court

found that service on an attorney was not sufficient because the attorney only

represented the defendant in an unrelated action. In Shoultz v. State, 995 N.E.2d 647, 658

(Ind. Ct. App. 2013), service was found insufficient under Ind. R. Trial P. 4.1 because it

was attempted on an attorney who was not representing the defendant in that lawsuit.

While interesting, these cases are not useful here where Mr. Twohy undisputedly

represents the State Defendants in this specific litigation and Plaintiff served him on

behalf of the State Defendants.

Parallel to these arguments about the scope of Mr. Twohy’s agency, the State

Defendants challenge the sufficiency of Plaintiff’s service because the documents were

accepted by Eichhorn & Eichhorn’s office manager, Ms. Turnquist, who they contend

was not authorized to accept service of process on their behalf either. Plaintiff does not

present any evidence of Ms. Turnquist’s authority to accept service of process on behalf

of the State Defendants. Once again, however, the State Defendants offer no authority to

show that her acceptance of the service documents constitutes demands a finding of

improper service of process.

This is concerning in light of a decision by this Court in 2013. In Franklin Franklin

v. Tuthill Corporation/Transfer Systems, this Court found service sufficient when the

summons was addressed to the correct individual using a proper means of service

under Fed. R. Civ. P. 4(e) but was intercepted and received by a receptionist acting

within her scope of responsibilities. , No. 1:12-CV-288-PS-RBC, 2013 WL 3353933, at *9

(N.D. Ind. July 3, 2013) .In support, this Court distinguished the factual scenario it faced

with the facts in LaPalme v. Romero, 621 N.E.2d 1102 (Ind. 1993) where the summons was

accepted by a third party on behalf of an individual who lacked authority to receive

process on the defendant’s behalf. Id. In LaPalme, the court considered the effect of Ind.

R. Trial P. 4.15(F), which states:

No summons or the service thereof shall be set aside or be adjudged

insufficient when either is reasonably calculated to inform the person to

be served that an action has been instituted against him, the name of the

court, and the time within which he is required to respond.

Id. at 1105–06. The LaPalme court then concluded the summons was not properly served

because the applicable service of process rules did not authorize service to the

addressee let alone the third party. Id. Based on the LaPalme analysis, however, this

Court found Ind. R. Trial P. 4.15(F) applicable to the attempt at service in Franklin,

noting that the intercepted service was only a technical defect because the plaintiff had

addressed the summons to the correct individual and used a proper method of service.

Franklin, 2013 WL 3353933, at *9.

LePalme and Franklin suggest that Ms. Turnquist’s acceptance of the summonses

at issue—addressed to Mr. Twohy in care of Eichhorn & Eichhorn—may not be

problematic if Mr. Twohy qualifies as a proper individual for service, a fact that the

parties have failed to resolve definitively in briefing the instant Motion to Quash. The

record presented to the Court on whether Mr. Twohy is authorized to accept service of

process on behalf of the individual State Defendants is limited to Plaintiff’s inference of

agency, Mr. Twohy’s contemporaneous filing of the State Defendants’ pending motion

to dismiss and his appearance on their behalf in this litigation, and a complete lack of

legal authority regarding what constitutes proof of an appointment to receive service of

process under Ind. R. Trial P. 4.1(A)(4). While Plaintiff may not have satisfied his

burden to establish sufficiency of service of process in response to the instant Motion to

Quash, see Cardenas, 646 F.3d at 1005, the State Defendants have not persuaded this

Court that Plaintiff’s attempt at service via Mr. Twohy is improper. Therefore, quashing

service and striking the August 24th proofs of service is premature at best and more

likely an excessive discretionary response to the facts surrounding service in this case.

Quashing service and striking the proofs of service would also be inequitable as

Mr. Twohy’s conduct in rejecting Plaintiff’s service documents—mailing them back to

Plaintiff’s counsel with an attached letter noting his position that the attempted service

was improper and that a motion would be filed with the Court—suggests an attempt by

the individual State Defendants to frustrate or evade service. The record does not

establish any attempt by Mr. Twohy to confer with Plaintiff’s counsel after the August

24th service. Additionally, Mr. Twohy did not assist in achieving service—arguably an

affirmative obligation of an attorney who is also an officer of the court. Such assistance

would also be consistent with the spirit of the service rules in the Indiana Rules of Trial

Procedure that establish duties of communication to their clients and aid in service for

agents receiving service. See Ind. R. Trial P. 4.10, 4.16; cf. Fed. R. Civ. P. 1; Ind. R. Prof’l

Conduct 1.4, 3.2.

Nevertheless, the State Defendants have established that the proof of service for

Defendant Tague is unsupported. Plaintiff filed what is identified as a Summons

Returned Executed with proof of service attached stating that “Officer Caleb Tague”

received the summons addressed to Mr. Twohy from a process server on August 23,

2022. [DE 46-1]. Yet the uncontested packet of service documents filed by the State

Defendants in support of their Motion to Quash does not include any summons for

Defendant Tague. Instead, it includes two summonses for Defendant Hensley. [DE 49-1

at 1, 21]. Therefore, the Court can only assume that the proof of service on Defendant

Tague is inaccurate even if based on only an inadvertent error in service. Therefore,

striking the Tague proof of service only is warranted.

Accordingly, the State Defendants’ Motion to Quash is GRANTED IN PART

and DENIED IN PART. [DE 49].

B. Motion for Extension of Time to Complete Service [DE 33]

Under Fed. R. Civ. P. 4(m), “the court must extend the time for service for an

appropriate period” if the plaintiff demonstrates good cause for failing to complete

service in the initial 90-day period. The good cause standard “primarily considers the

diligence of the party seeking amendment” of a deadline. Trustmark Ins. Co. v. Gen. &

Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005). Good cause exists when a

movant shows that “despite [her] diligence the time table could not have reasonably

been met.” Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995).

“In the absence of good cause, a court has discretion to permit service after the

90-day period or dismiss the complaint without prejudice. “ Freeman v. Carter, No. 3:20-

CV-631 JD, 2021 WL 4146999, at *3 (N.D. Ind. Sept. 13, 2021) (citing Panaras v. Liquid

Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996)).

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 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 v. City of Chicago, 646 F.3d 1001, 1006 (7th Cir. 2011).] “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 actions—

or, more accurately, inaction—by dismissing the case.” Cardenas, 646 F.3d

at 1007.

Jones v. Ramos, No. 20-2017, 2021 WL 4024799, at *3 (7th Cir. Sept. 3, 2021).

Despite the State Defendants’ argument to the contrary, Plaintiff’s efforts from

June through August 2022 demonstrated due diligence in attempting to perfect service

upon them. Even if they did not, the relevant Cardenas factors favor granting Plaintiff an

extension of time. First, the limited record before the Court leaves open the possibility

that the August 24th service on all the State Defendants but Officer Tague was timely

perfected before the August 30th service deadline. Second, nothing even hints that the

State Defendants’ ability to defend against Plaintiff’s claims would be harmed by the

requested extension.

Third, the State Defendants undoubtedly had actual notice of Plaintiff’s claims

no later than August 19, 2022, when Mr. Twohy filed their motion to dismiss. After all,

Mr. Twohy’s knowledge of the complaint was imputed to his clients even if service to

him was improper. See Bennett, 108 F.R.D. at 148–49; State ex rel. Brubaker, 138 N.E.2d at

235; Smith, 303 N.E.2d at 56. Additionally, Mr. Twohy presumably communicated with

his clients about that motion before filing it in keeping with his ethical obligations. See

Ind. R. Prof’l Conduct 1.4. And lastly, Mr. Twohy’s decision to file the State Defendants’

motion to dismiss on grounds of insufficiency of process before the service deadline

passed combined with his failure to confer with Plaintiff’s counsel about the alleged

service issues or to share contact information regarding his clients creates an inference

that he was attempting to manipulate or frustrate service.9

9 Perhaps it is Defense Counsel’s intent to force Plaintiff’s counsel to levy some kind of discovery process

upon his law firm, or alternatively IDOC, to ascertain his clients’ contact information relevant to service

of process? Such an approach nears the boundaries of the “Theatre of the Absurd” given counsel’s duty

to this tribunal to expedite litigation and ensure a just outcome on the merits of the claims and defenses in

this case. See Fed. R. Civ. P. 1; see also Ind. R. Prof’l Conduct 3.2. After all, at the time of his appearance in

this case, Defense Counsel was—and may still be—in the best position to propel this case forward on the

merits given his knowledge of both Plaintiff’s complaint and his clients’ contact information relevant to

service of process. To allow this matter to devolve into a game of “hide the ball” not only undermines the

significance and importance of the Plaintiff’s claims but also demeans the decorum and authority of this

Court to consider claims on the merits rather than on procedural technicalities. See, e.g., Fed. R. Civ. P.

4(l)(3) (“Failure to prove service does not affect the validity of service . . .[t]he court may permit proof of

service to be amended”).

Therefore, a brief extension of time is warranted to allow Plaintiff to perfect

service using any means acceptable under the Federal Rules of Civil Procedure and the

Indiana Rules of Trial Procedure. See Fed. R. Civ. P. 4(m); 4(e). Accordingly, Plaintiff’s

Extension Motion is GRANTED. [DE 33]. The deadline to serve all the State Defendants

is EXTENDED to December 23, 2022.

IV. PLAINTIFF’S MOTION TO STRIKE STATE DEFENDANTS’ REPLY IN SUPPORT OF

MOTION TO DISMISS [DE 54]

Plaintiff’s Motion to Strike was filed on September 7, 2022. Under the Local Rules

of this Court, Defendants automatically received fourteen days to respond to the

Motion to Strike. N.D. Ind. L.R. 7-1(d)(3)(A). They did not. As such, this Court is

authorized to rule summarily on the Motion. See id. 7-1(d)(5). Moreover, Plaintiff has

established that the State Defendants filed their reply brief after the deadline set forth in

the Local Rules passed. See id. 7-1(d)(3)(B). With good cause shown and no sign of

objection, Plaintiff’s Motion to Strike is GRANTED. [DE 54]. The State Defendants’

reply brief in support of their motion to dismiss is STRICKEN. [DE 52].

V. CONCLUSION

For the reasons discussed above, the pending service-related nondispositive

motions are resolved as follows.

• Plaintiff’s Motion to Amend Complaint is GRANTED. [DE 36]. The Clerk is

DIRECTED to file Plaintiff’s First Amended Complaint and Demand for Jury

Trial, as attached to his Motion [DE 36-1], as of August 23, 2022.

• Plaintiff’s Motion to Substitute is DENIED AS MOOT. [DE 24].

• The State Defendants’ Motion to Quash Service is GRANTED IN PART and

DENIED IN PART. [DE 49]. The proof of service as to Defendant Caleb Tague is

STRICKEN. [DE 46-1].

• Plaintiff’s Motion for Extension of Time to Complete Service is GRANTED. [DE

33]. The deadline to serve all the State Defendants is EXTENDED to December

23, 2022.

• Plaintiff’s Motion to Strike is GRANTED. [DE 54]. The State Defendants’ reply

brief in support of their motion to dismiss is STRICKEN. [DE 52].

SO ORDERED this 18th day of November 2022.

s/Michael G. Gotsch, Sr.

Michael G. Gotsch, Sr.

United States Magistrate Judge