In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3117

Beverly Coleman,

Plaintiff-Appellant,

v.

Milwaukee Board of School Directors,

Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 C 1174--Rudolph T. Randa, Judge.

Argued March 6, 2002--Decided May 20, 2002



  Before Posner, Evans, and Williams, Circuit
Judges.

  Posner, Circuit Judge. The district
court dismissed this suit for want of
timely service. Fed. R. Civ. P. 4(m). The
plaintiff was a secretary employed by the
Milwaukee Board of School Directors, a
municipal agency that performs various
functions for the Milwaukee public
schools. Contending that the Board had
discriminated against her on account of
her race and retaliated against her for
complaining about the discrimination, she
brought this suit against the Board
claiming violations of Title VII and the
Thirteenth Amendment. She attempted to
serve the complaint, 115 days after
filing it, by leaving a copy of the
complaint and summons with an employee of
a subordinate unit of the Board. After
the Board moved to dismiss the suit on
the ground that it had not been properly
served, the plaintiff left with another
employee of the unit another copy of the
complaint together with a summons
addressed to the superintendent of the
Milwaukee public schools, who has an
office in the same building as the Board
but is not a member of the Board or its
employee, though the Board appoints and
has general supervisory authority over
him. See Wis. Code sec.sec. 119.32(1),
(2), 36.
  Rule 4 provides two methods for serving
a state or local government organization:
delivering a copy of the complaint and
summons to the organization’s chief
executive officer, or serving the
complaint and summons in the manner
prescribed by state law for serving such
an organization. Fed. R. Civ. P. 4(j)(2).
The Board, as it happens, has no chief
executive officer, and as far as the
method of service prescribed by state law
is concerned, Wisconsin law is explicit
that the complaint and summons must be
served on both "the board president and
the superintendent of schools." Wis. Code
sec. 119.12(2). Neither was served; nor
was either of the employees whom the
plaintiff purported to serve authorized
to accept service on behalf of either
official. Neither was even employed in
the office of the Superintendent of
Schools. Service not having been
accomplished within 120 days, the
district judge dismissed the suit without
prejudice, precipitating this appeal.

  Rule 4(m) provides "that if the
plaintiff shows good cause for the
failure [to serve the defendant within
120 days], the court shall extend the
time for service." Good cause means a
valid reason for delay, such as the
defendant’s evading service. Geiger v.
Allen, 850 F.2d 330, 333 (7th Cir. 1988);
Petrucelli v. Bohringer & Ratzinger,
GMBH, 46 F.3d 1298, 1305-06 (3d Cir.
1995); Friedman v. Estate of Presser, 929
F.2d 1151, 1157 (6th Cir. 1991). There
was nothing like that here. But the case
law allows the district court to extend
the time for service even if there was no
good cause for the plaintiff’s missing
the deadline. Henderson v. United States,
517 U.S. 654, 662 (1996); Troxell v.
Fedders of North America, Inc., 160 F.3d
381, 383 (7th Cir. 1998); Panaras v.
Liquid Carbonic Industrial Corp., 94 F.3d
338, 341 (7th Cir. 1996); Espinoza v.
United States, 52 F.3d 838, 840-41 (10th
Cir. 1995); Petrucelli v. Bohringer &
Ratzinger, GMBH, supra, 46 F.3d at 1305.
Thus there is justifiable delay ("good
cause"), but there is excusable neglect
as well, as grounds for extension. In the
first case, that of good cause, an
extension is mandatory; in the second,
that of excusable neglect, it is
permissive, and the judge must be
affirmed provided he did not abuse his
discretion, that is, act unreasonably, in
deciding whether or not the plaintiff’s
delay was excusable. Troxell v. Fedders
of North America, Inc., supra, 160 F.3d
at 383; ARW Exploration Corp. v. Aguirre,
45 F.3d 1455, 1459 (10th Cir. 1995).

  Where as in this case the defendant does
not show any actual harm to its ability
to defend the suit as a consequence of
the delay in service, where indeed it is
quite likely that the defendant received
actual notice of the suit within a short
time after the attempted service, and
where moreover dismissal without
prejudice has the effect of dismissal
with prejudice because the statute of
limitations has run since the filing of
the suit (it has run on the plaintiff’s
Title VII claim, though not on her
Thirteenth Amendment claim), most
district judges probably would exercise
lenity and allow a late service, deeming
the plaintiff’s failure to make timely
service excusable by virtue of the
balance of hardships. But the cases make
clear that the fact that the balance of
hardships favors the plaintiff does not
require the district judge to excuse the
plaintiff’s failure to serve the
complaint and summons within the 120 days
provided by the rule. It does not abolish
his discretion. Abuse of discretion "is a
hard standard to overcome . . . . Troxell
offers no reason to think that the
district court was completely off base in
deciding not to rely on them [permitted
factors in exercising discretion to
extend the 120-day period] here. The
court knew that it had discretion over
the matter; it evaluated Troxell’s
conduct (or, more accurately, that of her
lawyer) as a whole; and it decided not to
exercise its discretion in her favor."
Troxell v. Fedders of North America,
Inc., supra, 160 F.3d at 383; see also De
Tie v. Orange County, 152 F.3d 1109, 1112
n. 6 (9th Cir. 1998); Adams v.
AlliedSignal General Aviation Avionics,
74 F.3d 882, 888 (8th Cir. 1996). Unlike
the district judge in Panaras (see 94
F.3d at 341), the judge in the present
case did not overlook any of the factors
urged upon him by the plaintiff for
exercising discretion in her favor.

  The judge understandably was troubled by
the fact that the plaintiff had delayed
till almost the last minute in attempting
service and then had failed not once but
twice to serve the defendant in the
manner prescribed by Rule 4(j)(2). The
plaintiff’s lawyer could not reasonably
have believed that she was serving the
president of the Board even if she
mistakenly believed that he was the
Board’s chief executive officer, or that
she was serving the Superintendent of
Schools when she attempted to serve an
employee of the Board, the Board and the
Superintendent being separate entities.
In both attempts at service, the
complaint and summons were deposited with
employees in subordinate units of the
Board, not in the office of the president
of the Board, let alone in any office
subordinate to the Superintendent of
Schools.

  In her brief in this court, the
plaintiff advances for the first time a
reason for waiting until the 115th day to
attempt service. She had a related claim
against the Board (a claim for disability
discrimination) that she wished to fold
into her suit, but she could not do that
until she received her right-to-sue
letter on that claim from the EEOC. If
she had served the defendant in the
present suit soon after filing the
complaint, and the defendant had then
answered promptly as it might well have
done, she would have lost her right to
file an amended complaint, containing the
disability claim, without leave of court.
See Fed. R. Civ. P. 15(a); Chavez v.
Illinois State Police, 251 F.3d 612, 632
(7th Cir. 2001); Payne v. Churchich, 161
F.3d 1030, 1036 (7th Cir. 1998); Crim v.
Board of Education, 147 F.3d 535, 547-48
(7th Cir. 1998).

  This is not a good reason for the delay
in service, since there was no real
danger that the district court would have
refused to let her amend her complaint,
thus forcing her to file two separate
discrimination suits arising out of the
same employment. In any event, she failed
to urge that or any reason on the
district judge, who was left with the
impression that the plaintiff’s lawyer
had had no reason at all for the
riskydecision to delay service to the
last minute. And then the lawyer failed
twice to serve the defendant properly,
with no even colorable justification
either time. The district judge could
still have excused the failure to make
timely service but he was not required to
do so, and so the dismissal of the suit
must be

Affirmed.



  Williams, Circuit Judge, concurring. As
the majority opinion makes clear, the
district court did not abuse its
discretion by dismissing Coleman’s case
for her failure to properly comply with
Federal Rule of Civil Procedure 4, and so
we must affirm its decision. Doing so,
however, troubles me, given the
circumstances of this case. As Judges
Posner and Evans point out, there is no
doubt that the defendants had notice of
Coleman’s suit and given the short
statute of limitations governing
Coleman’s Title VII claim, I believe that
the better course would have been to let
the suit proceed. However, the district
court considered all the reasons that
Coleman raised in seeking an extension
under Federal Rule of Civil Procedure
Rule 4(m) and rejected them, so given our
holding in Troxell v. Fedders of North
America, Inc., 160 F.3d 381, 383 (7th
Cir. 1998), I cannot find an abuse of
discretion.


 EVANS, Circuit Judge, dissenting. The
bottom line here is that Beverly Coleman
loses her race discrimination case on a
technicality. Now it’s admittedly hard to
feel too sorry for her because she
contributed to her predicament by waiting
until close to the end of a 120-day
period to get this case moving, and for
that she has no one but herself
(actually, her lawyer or her process
server) to blame. But the law prefers
that cases be resolved on their merits,
not technicalities, and for that reason I
would hold that the district judge abused
his discretion when he decided not to
give Ms. Coleman a few extra days to
perfect service.

  If a defendant is a natural person, the
service of process is easy. It gets a bit
more complicated when the defendant is a
corporation. When the defendant is a
governmental entity, the service of
process can get very tricky, and in this
case it was not a walk in the park.
Chapter 801 of the Wisconsin Statutes,
entitled "Commencement of Action and
Venue," is the starting point for
learning how to properly get a case going
in Wisconsin. Section 801.11 covers the
"manner of serving" a summons on almost
everyone and everything. For instance,
the statute tells us that in an action
against a city, service on the mayor,
city manager, or clerk will suffice. In
an action against a technical college,
service on the district board chairperson
or the secretary will do. But there’s a
bit of a trap, because the Milwaukee
School Board has its own service statute
lurking three volumes away from Chapter
801 in sec. 119.12(2). That statute
provides, as the majority notes, for
service of a summons and complaint to be
made on the president of the school board
and the superintendent. Why both, when
most all other entities allow service on
either one person or office? Who knows.
Logic, at least, does not seem to provide
the answer.

  So we start here with a unique service
statute with which, I agree, Coleman did
not comply. But what she did do was a
"right church, wrong pew" sort of thing:
she delivered her summons and complaint
to the Milwaukee School Board’s "Office
of the Board of Governance." This office
is in the headquarters of the school
board, and for all we know it may be on
the same floor as the offices of the
board’s president and superintendent. For
this reason, the defendant school board
(to its credit) does not hide the fact
that it had prompt actual notice of
Coleman’s claim. And because it had
actual notice, the board cannot in any
way, shape, or form complain that it was
prejudiced by Coleman’s deficient
service.

  Given these circumstances--the
preference for resolving cases on their
merits, a very unique service law (unlike
the simple service requirement the
plaintiff blew in Troxell v. Fedders of
North America, Inc., 160 F.3d 381 (7th
Cir. 1998)), plus actual notice and no
prejudice to the defendant--the district
court, even if this did not add up to
"good cause," should have given Coleman a
little more time to dot her "i’s" and
cross her "t’s." Panaras v. Liquid
Carbonic Indus. Corp., 94 F.3d 338, 340-
41 (7th Cir. 1996). I think most courts,
given these circumstances, would have
exercised discretion favorable to Ms.
Coleman. And because her claim would be
(and is now) forever barred by a very
short statute of limitations, I believe
all but a tiny fraction of district
courts would have exercised discretion
favorable to Ms. Coleman. For these
reasons, I would find an abuse of
discretion and reverse the judgment of
the district court.
