The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILMA’S FOOD GROUP d/b/a WILMA’S
FAMOUS BBQ, an Illinois corporation,
and WILMA’S JAMAICAN JERK LLC, an
Illinois limited liability company,
Plaintiffs,
No. 25 CV 4432
v.
Judge Manish S. Shah
VILLAGE OF DOLTON, a municipal
corporation, and TIFFANY HENYARD, in
her capacity as Mayor of the Village of
Dolton and Local Liquor Control
Commissioner,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs Wilma’s Famous BBQ and Wilma’s Jamaican Jerk applied for
renewals of business and liquor licenses. They say that defendant Tiffany Henyard,
who was the mayor of defendant Village of Dolton, refused to act on their renewal
applications for political reasons, costing them business, sales, and profits. They sued
the Village and Henyard, alleging violations of due process and equal protection, and
seeking a writ of mandamus. To date, neither defendant has been served. Defendants
move to dismiss for untimely service and failure to state a claim under Federal Rules
of Civil Procedure 12(b)(5) and (b)(6). For the reasons discussed below, the motion to
dismiss for untimely service is denied and the motion to dismiss for failure to state a
claim is granted in part and denied in part.
I. Legal Standards
A court may dismiss a case for insufficiency of service of process pursuant to
Federal Rule of Civil Procedure 12(b)(5). United States v. Ligas, 549 F.3d 497, 501
(7th Cir. 2008). A plaintiff must serve the defendant with a summons and a copy of
the complaint within ninety days of filing the complaint. Fed. R. Civ. P. 4(c), (m). If
service is not timely made, it is the plaintiff’s burden to demonstrate good cause for
the failure. UWM Student Ass’n v. Lovell, 888 F.3d 854, 858–59 (7th Cir. 2018);
Cardenas v. City of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011). If the plaintiff does
not meet its burden, I must either dismiss the suit or grant an extension. Cardenas,
646 F.3d at 1005.
A complaint requires only “a short and plain statement” showing that the
plaintiff is entitled to relief. Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662,
677–78 (2009). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the
plaintiff must allege facts that “allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements” are insufficient. Id.
At this stage, I accept all factual allegations in the complaint as true and draw
all reasonable inferences in the plaintiffs’ favor. Id.
II. Facts
Plaintiffs Wilma’s Food Group d/b/a Wilma’s Famous BBQ and Wilma’s
Jamaican Jerk were two restaurants in the Village of Dolton owned by Jason Rogers.
[1] ¶¶ 4–5, 14.1 Rogers was the son of Riley Rogers, the former mayor of defendant
Village of Dolton and longtime political rival of defendant Dolton Mayor Tiffany
Henyard. [1] ¶¶ 14–15, 37–39. In 2022, Wilma’s Famous BBQ was granted a Class D
liquor license, which allowed it to serve to-go cocktails for one year. [1] ¶¶ 35, 56.
There were only eleven Class D licenses available in the Village of Dolton. [1]
¶ 34. Wilma’s Jamaican Jerk applied for a business license in November 2022, which
the Village granted. [1] ¶¶ 117–18.
In April 2023, Wilma’s Famous BBQ applied for renewal of its business license
and Class D liquor license and Wilma’s Jamaican Jerk applied for renewal of its
business license. [1] ¶¶ 35, 48, 119. That summer, the Village “began enforcement
against allowing authorized businesses to sell to-go cocktails.” [1] ¶ 57. Wilma’s
Famous BBQ lost a “significant” amount of income from the lack of to-go cocktail
sales. [1] ¶ 61.
Plaintiffs allege that in October 2023, Wilma’s Famous BBQ was served with
a “Notice of Hearing on Revocation/Non-Renewal of Business License.” [1] ¶ 62; [1-1].
Wilma’s Famous BBQ zealously opposed the notice, and the Village ultimately
abandoned the notice without proceeding to a hearing. [1] ¶ 70.
Over the course of a year, Rogers repeatedly asked representatives from the
Village about the status of both restaurants’ license applications and was told each
time that the applications remained pending. [1] ¶¶ 50–54. He also sent a letter
1 Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings. The facts are taken from
plaintiffs’ complaint, [1].
asking the Village to convert Wilma’s Famous BBQ’s Class D liquor license into a
“combo license.” [1] ¶¶ 59, 103. In December 2023, Wilma’s Famous BBQ filed a
Notice of Appeal with the Illinois Liquor Control Commission for the Village’s failure
to renew the restaurant’s Class D liquor license. [1] ¶ 72. Default judgment was
entered against the Village for its failure to appear in the matter, and the
Commission ordered the Dolton Liquor Control Commissioner—at the time,
Henyard—to renew Wilma’s Famous BBQ’s retail liquor license [1] ¶¶ 74–76. She did
not do so. [1] ¶¶ 77, 91.
In April 2025, the Village told Rogers that it had no record of Wilma’s Jamaican
Jerk’s renewal application. [1] ¶ 123.
Plaintiffs say that Henyard targeted them because Rogers is the son of a
political rival and because they did not support her political campaign. [1] ¶¶ 100–
01, 130–31. They say that they are not the only businesses to suffer retaliation for
not supporting Henyard. [1] ¶¶ 44–46. Plaintiffs allege that a Village board meeting
“erupt[ed] into chaos amid allegations of misspending and harassment” by Henyard,
including that Henyard harassed and revoked the business licenses of businesses that
did not support her. [1] ¶ 46 (alteration in original). Plaintiffs allege that Henyard is
facing other lawsuits sounding in abuse of power. [1] ¶ 47.
Plaintiffs filed their complaint on April 23, 2025. [1]. According to plaintiffs,
they sent waivers of service to counsel for the Village sometime before September 24,
2025. [25] at 4–5, 8; [25-1] ¶ 5.2 Plaintiffs say they followed up on the waivers on
September 24, 2025. [25] at 2; [25-1] ¶ 6. Plaintiffs also say that counsel for the
Village had actual notice of the lawsuit no later than July 25, 2025. [25-1] ¶ 9. Finally,
plaintiffs’ counsel says that he had “extraordinary and overlapping litigation
obligations” that contributed to the failure to serve defendants. [25] at 4; [25-1]
¶¶ 12–19.
IV. Analysis
A. The Village of Dolton’s Liability
Section 1983 “provides a civil remedy against any ‘person’ who violates a
plaintiff’s federal civil rights while acting under color of state law.” Thomas v. Neenah
Joint Sch. Dist., 74 F.4th 521, 523 (7th Cir. 2023); 42 U.S.C. § 1983. Local
governments are “persons” that can be sued under § 1983 for an “official policy or
custom” that violates the Constitution. Monell v. New York City Department of Social
Services, 436 U.S. 658, 690 (1978); Betts v. Boone Cnty., 178 F.4th 1051, 1055 (7th
Cir. 2026). Plaintiffs may sue a local government “if it is alleged to have caused a
constitutional tort through a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.” Betts, 178 F.4th at 1055
(quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (plurality opinion)).
Monell liability is not vicarious liability; a local government “may not be sued
under § 1983 for an injury inflicted solely by its employees or agents.” Id. at 1056
2 Although plaintiffs’ counsel’s affidavit says 2026, plaintiffs’ motion for extension of time for
service was filed before May 2026, and in context, it is clear counsel meant 2025.
(quoting Monell, 436 U.S. at 694). The municipality must be the actor, and so must
have an “official policy,” which “distinguish[es] acts of the municipality from acts of
employees of the municipality.” Id. (quoting Praprotnik, 485 U.S. at 121–22, then
Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)) (alterations and emphasis
in original).
To survive a motion to dismiss, plaintiffs must plead facts that “plausibly
suggest” that: (1) they were deprived of a constitutional right; (2) the deprivation can
be traced “to some municipal action (i.e., a ‘policy or custom’), such that the challenged
conduct is properly attributable to the municipality itself”; (3) “the policy or custom
demonstrates municipal fault, i.e., deliberate indifference”; and (4) “the municipal
action was the moving force behind the federal-rights violation.” Thomas, 74 F.4th at
524 (quoting Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th Cir 2021)).
For the second element, three types of municipal action can support liability under
§ 1983: (1) an express policy of the municipality; (2) a widespread practice
constituting custom or usage; or (3) an act by a person with final policymaking
authority. Id.
It appears that plaintiffs proceed on the theory that Henyard, who was the
mayor and local liquor control commissioner of the Village, was a final policymaker.
[26] at 8. Defendants say that the complaint does not contain sufficient allegations of
final policymaking authority and so fails to state a claim against the Village.
A final policymaker is one “whose edicts or acts may fairly be said to represent
official policy.” Monell, 436 U.S. at 694. To have final policymaking authority is to
possess “final authority to establish municipal policy with respect to the action
ordered.” Betts, 178 F.4th at 1056 (quoting Pembaur, 475 U.S. at 481 (plurality)).
Whether an official is a final policymaker is determined by state or local law.
Betts, 178 F.4th at 1056. The question is not whether an official is a policymaker on
all municipal matters, but whether she is a policymaker in the “particular area, or on
a particular issue.” Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 676 (7th Cir.
2009). Officials with final decision-making authority are policymakers under Monell.
Id. The authority to set policy must concern setting policy for liquor license renewals,
not merely the act of denying a liquor license renewal itself. Kristofek v. Village of
Orland Hills, 832 F.3d 785, 799 (7th Cir. 2016). I look to factors like: “(1) whether the
official is constrained by policies of other officials or legislative bodies; (2) whether
the official’s decision on the issue in question is subject to meaningful review; and
(3) whether the policy decision purportedly made by the official is within the realm of
the official’s grant of authority.” Id. (quoting Valentino, 575 F.3d at 676).
Under the Illinois Liquor Control Act, a village has “the power by general
ordinance or resolution to determine the number, kind and classification of licenses,
for sale at retail of alcoholic liquor not inconsistent with this Act” and to “establish
such further regulations and restrictions upon the issuance of an operations under
local licenses.” 235 ILCS 5/4-1. In exercising that power, the Village may not prohibit
a license issuance except for enumerated reasons, including that the applicant is “[a]
person who is not of good character and reputation in the community in which he
resides,” or “[a] person who at the time of application for renewal of any license issued
hereunder would not be eligible for such license upon a first application.” 235 ILCS
5/4-1; 235 ILCS 5/6-2(a)(2), (8). The mayor of the village “shall be the local liquor
control commissioner … and shall be charged with the administration in” the village
“of the appropriate provisions of this Act and of such ordinances and resolutions
relating to alcoholic liquor as may be enacted.” 235 ILCS 5/4-2.
When a liquor license commissioner revokes a liquor license or imposes a fine,
a liquor license holder is entitled to procedural protections under the Liquor Control
Act, including a public hearing, at least three days’ written notice, an opportunity to
be heard, an official written record of evidence, and additional hearings and appeals.
235 ILCS 5/7-5, 5/7-9; Brunson v. Murray, 843 F.3d 698, 710–11 (7th Cir. 2016). But
liquor license renewals do not provide comparable procedural protections. Brunson,
843 F.3d at 711. Instead, the Liquor Control Act says that a license holder may renew
a license at expiration “provided he is then qualified to receive a license and the
premises for which such renewal license is sought are suitable for such purpose.” 235
ILCS 5/6-1. The local liquor license commissioner has the right to investigate any
applicant for a local license renewal. 235 ILCS 5/4-5. But the Act does not grant a
right to notice and a hearing if the commissioner plans or actually decides not to
renew, nor does it require the commissioner to state for the record any reasons for
denying renewal. Brunson, 843 F.3d at 711. The licensee has the right to appeal a
denial, at which time the licensee can continue its operations. Id.; 235 ILCS 5/7-9.
But when a commissioner does not act, she makes “it difficult for [the licensee] to
appeal, which is a key safeguard against unlawful or unconstitutional acts.” Brunson,
843 F.3d at 711.
As local liquor license commissioner, Henyard’s decision to grant or deny a
liquor license renewal was squarely within the realm of her authority. She also had
the authority to simply not act, creating a policy of inaction when she wanted to.
When she failed to act, there was no meaningful review. Brunson, 843 F.3d at 711.
And though there are some policies and statutes limiting a local commissioner’s
decision, see 235 ILCS 5/6-2, there is no ordinance or statute that constrained the
time in which the Dolton liquor commissioner must act on renewal applications.
Henyard was a final policymaker on liquor license renewals for purposes of Monell
liability.
Henyard was not, however, a final policymaker for business license renewals.
Under the Dolton Municipal Code, business licenses shall be granted when a business
owner submits a form “prescribed and furnished by the Village Board and submitted
to the office of Comptroller and Revenue Administrative Services.” Dolton Mun. Code
§ 110.004. Licenses “shall be granted and signed by the Village President and issued
by the office of the Comptroller and Revenue Administration Services. Any
application may be ordered by the President or the Village Board to be presented to
and approved by such Board before issuance or approval of the license, and the Board
may overrule the decision of the President in reference to any application for license.”
Dolton Mun. Code § 110.009 (emphasis added). Each business license expires on the
last day of the fiscal year, and businesses must apply for a renewal each year. Dolton
Mun. Code § 110.010.
In the case of business licenses, Henyard was constrained by the municipal
code—she was required to grant the license unless certain conditions applied. The
Village Board had final approval authority and could overrule any decision Henyard
made. Because Henyard was not a final policymaker for granting or renewing
business licenses, there is no Monell liability and the Village cannot be held liable for
any constitutional violations relating to either Wilma’s Famous BBQ’s or Wilma’s
Jamaican Jerk’s business license renewals.
B. Henyard’s Liability
Defendants say that plaintiffs only sue Henyard in her official capacity, and so
the claims against her are redundant and she should be dismissed as a defendant.
[15] at 5–6; see Malhotra v. Univ. of Ill. at Urbana-Champaign, 77 F.4th 532, 535 n.2
(7th Cir. 2023).
If a public official violates a person’s constitutional rights, the person can sue
the public official in their individual capacity or in their official capacity. Orr v.
Shicker, 147 F.4th 734, 739 (7th Cir. 2025). In an official-capacity suit, “the plaintiff
alleges that the defendant was party to the execution or implementation of official
policy or conduct by a government because the real party in interest is the entity.” Id.
(quoting Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991)). By contrast “an
individual capacity suit focuses on the constitutional torts of an individual officer.”
Id. (quoting Hill, 924 F.2d at 1372). “To recover damages under § 1983, a plaintiff
must establish that a defendant was personally responsible for the deprivation of a
constitutional right.” Mack v. City of Chicago, 151 F.4th 887, 898 (7th Cir. 2025)
(quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). Plaintiffs need to
establish “some causal connection or affirmative link between the action complained
about and the official sued.” Id. (quoting Gentry, 65 F.3d at 561)
Plaintiffs sue Henyard “in her capacity as mayor of Dolton and local liquor
control commissioner.” [1] at 1. The complaint caption does not specify that it is in
her official capacity. Nor does the complaint say anywhere it is suing Henyard in her
“official” capacity. There is no “‘rigid rule’ that presumes a § 1983 plaintiff is suing a
defendant in her official capacity simply because the complaint is silent.” Orr, 147
F.4th at 739. I look to the complaint “in its entirety” and to the conduct alleged to
determine whether plaintiffs intend to sue Henyard in an official or individual
capacity. Id. at 740.
Plaintiffs allege that at the direction of Henyard, the Village attempted to not
renew or revoke Wilma’s Famous BBQ’s business license. They allege Henyard did so
to issue a liquor license to one of her own associates, in retaliation for Wilma’s
Famous BBQ’s refusal to donate to her mayoral campaign, because its principal was
her political rival, and/or so that she could profit off the issuance of one of the finite
number of Class D licenses. [1] ¶¶ 79, 81, 100–01. Plaintiffs also allege that Henyard
deprived them of due process when she refused to renew their licenses and ignored
the Illinois Liquor Control Commission’s order to renew Wilma’s Famous BBQ’s
liquor license. [1] ¶¶ 87, 90–91, 126. Plaintiffs say that defendants “singled out”
Wilma’s Famous BBQ and Wilma’s Jamaican Jerk, treating them differently from
similarly situated businesses in the Village. [1] ¶¶ 100–01, 104, 107, 130–32, 135.
Plaintiffs allege that Henyard was personally responsible for the deprivation
of their constitutional rights and committed the wrongs or ordered others to commit
the wrongs on her behalf. Plaintiffs also allege that Henyard acted for her own
personal gain. Based on these allegations, plaintiffs sue Henyard in her individual
capacity and Henyard remains as a defendant. She may raise any individual
arguments in response to the complaint after she enters an appearance. To the extent
that plaintiffs sue her in her official capacity, those claims are redundant and are
dismissed. Malhotra, 77 F.4th at 535 n.2.
C. Due Process
1. Property Interest
To allege a constitutional violation for Henyard’s final policymaking acts as
liquor commissioner, plaintiffs must also allege a property interest in their sought-
after liquor licenses.
The Fourteenth Amendment prevents municipalities from depriving a person
of their property without due process of law. U.S. Const. amend. XIV, § 1. A plaintiff
must allege that he was deprived of a protected property interest. See Malhotra, 77
F.4th at 536. “To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire’ and ‘more than a unilateral expectation of it.
He must, instead, have a legitimate claim of entitlement to it.” FKFJ, Inc. v. Vill. of
Worth, 11 F.4th 574, 592 (7th Cir. 2021) (quoting Town of Castle Rock v. Gonzales,
545 U.S. 748, 756 (2005)).
“[A]n Illinois liquor license is a property interest within the meaning of the due
process clause.” Brunson, 843 F.3d at 713; Pro’s Sports Bar & Grill, Inc. v. City of
Country Club Hills, 589 F.3d 865, 870 (7th Cir. 2009) (“One granted, an Illinois liquor
license is a form of property within the meaning of the due process clause. This
interest extends to the license’s annual renewal.” (internal citation omitted)). Wilma’s
Famous BBQ held a Class D liquor license and was seeking its renewal. It had a
property interest in that license and its renewal. The Due Process Clause applies to
the deprivation of Wilma’s Famous BBQ’s liquor license renewal.
On the other hand, there is no property interest in liquor licenses that have
not been granted. The Dolton Municipal Code lays out sixteen restrictions on the
issuance of liquor licenses. See Dolton Mun. Code § 111.005. It also has ten different
kinds of licenses, each with different requirements, many of which are in direct
conflict with others. Compare Dolton Mun. Code § 111.006(A)(1) (authorizing the sale
at retail and consumption of alcoholic liquor) with § 111.006(A)(8) (authorizing the
sale at retail and consumption of only beer). Finally, it places a limit on how many
licenses can be issued. Dolton Mun. Code § 111.007. Because there are a limited
number of licenses for each category, and certain restrictions on who may be granted
a license, there is no legitimate claim of entitlement to a liquor license in the first
instance. Similarly, there is no entitlement to a change in the category of a license.
Just because a business has been approved for a Class A license for alcoholic liquor
sales, for example, does not mean that it is entitled to convert its license to a Class G
license to sell beer, for which the Village has allotted fewer licenses to be issued.
Dolton Mun. Code § 111.007(A)(1). Wilma’s Famous BBQ does not have any
entitlement to and so has no protected property interest in a “combo” license. Any due
process claim based on the refusal to convert Wilma’s Famous BBQ’s Class D license
to a “combo” license is dismissed.
2. Post-Deprivation Remedies
Defendants say that because plaintiffs fail to allege that post-deprivation
remedies are inadequate, they cannot state a due process claim. They argue that
“when a [municipal] officer acts in a ‘random and unauthorized way … the
[municipality] has no opportunity to provide a pre-deprivation hearing and may
instead satisfy due process by providing an adequate post-deprivation remedy.” Pro’s
Sports Bar & Grill, 589 F.3d at 872. But Wilma’s Famous BBQ is seeking more than
injunctive relief; it also seeks damages because, it alleges, it lost business, sales, and
profits because of the failure to renew its liquor license. [1] ¶¶ 93, 96. It seeks
damages “to compensate [it] for the period of time in which” its license was not
renewed and it could not sell alcoholic beverages. Pro’s Sports Bar & Grill, 589 F.3d
at 872. “Because no state remedy exists to compensate plaintiffs for these damages,
Wilma’s Famous BBQ is “not foreclosed from bringing a due process claim” for the
failure to renew its Class D liquor license. Id.
D. Equal Protection
Plaintiffs also bring equal protection claims alleging that they were targeted
for retaliation by Henyard for not supporting her and because plaintiffs’ principal is
the son of Henyard’s political rival.
The Equal Protection Clause of the Fourteenth Amendment provides that the
government may not “deny to any person … the equal protection of the laws.” U.S.
Const. Amend. XIV, § 1. This is “essentially a direction that all persons similarly
situated should be treated alike.” St. Joan Antida High Sch. Inc. v. Milwaukee Pub.
Sch. Dist., 919 F.3d 1003, 1008 (7th Cir. 2019) (internal citation and quotations
omitted).
Plaintiffs’ equal protection claims rely on the “class-of-one” theory. Indiana
Land Tr. #3082 v. Hammond Redevelopment Comm’n, 107 F.4th 693, 698 (7th Cir.
2024). “To state a claim under this theory, a plaintiff must allege (1) that [they] ha[ve]
been intentionally treated differently from others similarly situated, and (2) that
there is no rational basis for the difference in treatment.” Id. (quoting 145 Fisk, LLC
v. Nicklas, 986 F.3d 759, 771 (7th Cir. 2021)).
Defendants say that plaintiffs have failed to allege comparators that are
“prima facie identical in all relevant respects.” They point out that plaintiffs did not
allege they were treated any less favorably than similarly situated businesses in the
Village of Dolton, and in fact, say that because plaintiffs allege that other businesses
were similarly targeted by Henyard, that Henyard in fact treated plaintiffs “the very
same as the other businesses who did not support her politically.” [15] at 10–11.
Class-of-one claims are not limited to a single claimant. Village of Willowbrook
v. Olech, 528 U.S. 562, 564 n.* (2000) (“Whether the complaint alleges a class of one
or of five is of no consequence because we conclude that the number of individuals in
a class is immaterial for equal protection analysis.”). That there are other businesses
who may have had their business or liquor license renewal ignored for the same
reason that the Wilma’s’ license renewals were ignored shows simply that plaintiffs
are part of the “class” being treated less favorably. Plaintiffs allege that they were
part of a class treated differently from similarly situated businesses because they
were politically opposed to Henyard. [1] ¶¶ 100–104; 129–131, 135. This is sufficient
to put defendants on notice of their claims and to state an Equal Protection Clause
claim. Plaintiffs may proceed with their equal protection claims.
E. Writ of Mandamus and Other Relief
It appears that the claim for mandamus is moot. Defendants say that Wilma’s
Famous BBQ has been issued a business and liquor license for the time period at
issue. [15] at 4. Plaintiffs do not respond to this assertion. Similarly, injunctive relief
may also be moot. It is also likely that damages will be limited to the period of time
in which there was no pending appeal before the Illinois Liquor License Commission,
at which time the “licensee shall resume the operation of the licensed business
pending the decision of the State Commission.” 235 ILCS 5/7-9. As this litigation
moves forward, plaintiffs must show cause why mandamus and injunctive relief are
not moot.
F. Untimely Service
If a plaintiff fails to serve a defendant “within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be made
within a specified time.” Fed. R. Civ. P. 4(m). “[I]f the plaintiff shows good cause for
the failure, the court must extend the time for service for an appropriate period.” Id.
“Good cause means a valid reason for delay, such as the defendant’s evading service,”
Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002), a
defendant’s “refusal to cooperate,” Lewellen v. Morley, 909 F.2d 1073, 1075 (7th Cir.
1990), or some other “reasonable basis for noncompliance” with the ninety-day
deadline. Floyd v. United States, 900 F.2d 1045, 1047 (7th Cir. 1990) (quoting Winters
v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985). “[S]imple
attorney neglect, without the presence of substantial extenuating factors such as a
sudden illness or natural disaster, cannot constitute the sole basis for a ‘good cause’
determination.” Floyd, 900 F.2d at 1047.
Even without good cause, I can still grant an extension. UWM Student Ass’n,
888 F.3d at 858. Factors to consider in deciding whether to grant an extension
include, Jones v. Ramos, 12 F.4th 745, 749 (7th Cir. 2021):
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.
When the balance of the factors appears to favor an extension, I still have the
“discretion to hold the Plaintiffs accountable for their actions—or, more accurately,
inaction—by dismissing the case.” Id. (quoting Cardenas, 646 F.3d at 1007).
Plaintiffs did not have good cause for their noncompliance with Rule 4(m). They
had until July 22, 2025, to serve defendants. Plaintiffs’ counsel requested a waiver of
service sometime between May 2025 and September 2025 and then did not follow up
on his request until September 24, 2025, more than two months after the Rule 4(m)
service deadline. Plaintiffs say defendants had actual notice of the lawsuit no later
than July 25—after the deadline for service. And despite submitting summons in
November of 2025, plaintiffs still failed to actually serve defendants and have yet to
do so.
Plaintiffs’ counsel says that counsel was involved in another federal litigation
matter during the spring and summer of 2025 and other matters that “constrained
available time.” [25-1] ¶¶ 12–17. But this is the kind of “simple attorney neglect” that
cannot constitute the sole basis for good cause. Floyd, 900 F.2d at 1047. And though
Henyard may have moved out of Illinois, there is no evidence she attempted to evade
service, and neither did the Village. There was no good cause mandating an extension
of the service deadline.
I can still grant an extension. The defendants’ ability to defend the case would
not be harmed by granting an extension. The Village has actual notice, as it filed
appearances for the record and a motion to dismiss. [11]–[14]. It does appear that
plaintiffs’ counsel made some attempts at seeking waivers, talking with opposing
counsel, and tracking down Henyard. And though it took some time, plaintiffs have
requested an extension.
Dismissal would be harsh because some claims may be barred from being
refiled because the statute of limitations has expired. And many of the facts between
Wilma’s Famous BBQ’s and Wilma’s Jamaican Jerk claims are the same, so
defendants are only slightly prejudiced by defending against stale claims. See [26] at
6 (plaintiffs acknowledging that Wilma’s Famous BBQ claims “arguably” ran in
December 2025, though stating there may be tolling or relation-back issues). In
dismissing the case, plaintiffs would be harshly penalized for their counsel’s failures.
On balance, the factors favor an extension.
IV. Conclusion
Defendants’ motion to dismiss, [14], is granted in part and denied in part.
Plaintiffs’ claims for due process violations for the non-renewal of their business
licenses are dismissed with prejudice.3 Wilma’s Famous BBQ’s claims for due process
violations for its liquor license renewal may proceed, but any due process claims
based on the conversion of its Class D license to a “combo” license are dismissed with
prejudice. Plaintiffs’ equal protection arguments may also proceed. Plaintiffs’ motion
for an extension of time to serve defendants, [25], is granted. Plaintiffs must serve
3 While plaintiffs are “generally entitled to at least one chance to amend their complaint to
cure an error in response to a district court’s dismissal order,” Hernandez v. Ill. Inst. of Tech.,
63 F.4th 661, 671–72 (7th Cir. 2023) (internal quotation marks and citation omitted), because
any amendment would be futile, I dismiss with prejudice.
both defendants by August 17, 2026. The Village shall answer the surviving claims
by August 27, 2026 and the parties shall file a joint status report proposing a case
schedule by September 3, 2026.
ENTER:
Manish 8. Shah
United States District Judge
Date: July 16, 2026
20