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Court of Appeals of Illinois, First District, Second Division
April 22, 2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,v.KELVIN CARTER, Defendant-Appellant
Modified upon denial of rehearing April 22, 2014.
Rule 23 filed March 4, 2014. Appeal from the Circuit Court of Cook County. No. 02 CR 16884. Honorable Kevin M. Sheehan, Judge Presiding.
Judgment vacated; cause remanded for further proceedings.
The trial court's sua sponte dismissal of the petition defendant filed under section 2-1401 of the Code of Civil Procedure challenging the firearm enhancement of his sentence for murder was reversed and the cause was remanded on the ground that the dismissal was premature, since defendant served the petition by regular mail, not by summons, certified or registered mail or publication, as required by Supreme Court Rule 105(b), and although the prosecutor was in court, no formal waiver of service was entered on the record.
Michael J. Pelletier, Alan D. Goldberg, and Jennifer L. Bontrager, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Michelle Grimaldi Stein, Assistant State's Attorneys, of counsel), for the People.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Simon and Liu concurred in the judgment and opinion.
Page 442
[¶1] Defendant appeals from the circuit court's sua sponte dismissal of his petition under section 2-1401 of the Code of Civil Procedure (Civil Code). (735 ILCS 5/2-1401 (West 2012)). He argues that this court must remand the case because the circuit judge's sua sponte dismissal of his petition for relief from judgment on the merits was premature given that the petition was not properly served on the State. We agree and for the foregoing reasons, remand the cause to the circuit court for further proceedings.
[¶3] Following a bench trial, defendant was convicted of the murder of Edmond Allen. This court upheld his conviction on appeal. People v. Carter, 363 Ill.App.3d 1193 (2006) (unpublished order under Supreme Court Rule 23). Defendant's subsequent postconviction petition was dismissed by the trial court and that dismissal was also affirmed. People v. Carter, 389 Ill.App.3d 1144, 976 N.E.2d 1208, 364 Ill.Dec. 645 (2009) (unpublished order under Supreme Court Rule 23).
[¶4] Defendant mailed his section 2-1401 petition, wherein he challenged his sentence for the murder, on May 9, 2012. Specifically, defendant argued that the 25-year firearm enhancement he received was void because the trial judge only found him guilty of general murder and his sentence would only be 30 years in prison because that was the initial statement from the judge.
[¶5] The petition was file stamped by the clerk of the circuit court on May 15, 2012.
Page 443
The petition was first docketed on the trial call on June 5, 2012. The cover page of the transcript of the proceedings on June 5, 2014, reflects only the judge and the court reporter were present when the court stated, " Kelvin Carter filed a pro se motion to vacate a judgment. Order of Court to 7/10 for court review."
[¶6] On July 10, 2012, the trial judge dismissed the petition, stating that all of the counts of murder charged defendant with shooting and killing the victim with a firearm, and he concluded that the requisite findings had been made to impose the firearm enhancement. The transcript of the proceeding reflects the trial court stating, " [a]lso post-conviction petition 2-1401 petition, Kelvin Carter, he's on sheet one. Mr. Carter is not present, he's in IDOC custody. His 2-1401 petition is dismissed. Copy of the written order in the file is to be sent to defendant by the clerk within ten days." This is the full extent of the oral record regarding this petition on the date of dismissal. It is from this dismissal that defendant now appeals.
[¶8] Defendant argues that this court must remand this case to the circuit court because the court's sua sponte dismissal of his section 2-1401 petition on the merits was premature, given that the petition was not properly served on the State. According to the proof of service attached to the section 2-1401 petition, defendant mailed his petition on May 9, 2012, and attempted to serve the State by placing the documents in the institutional mail at the Menard Correctional Center " properly addressed to the parties listed above for mailing through the United States Postal Service."
[¶9] The State counters that defendant's argument should be rejected because an assistant State's Attorney was in court at the time the petition was dismissed and had actual knowledge of defendant's section 2-1401 petition. The State waived improper service by not objecting to it. As such, the 30-day time limit commenced and the case was ripe for adjudication when it was dismissed for failure to state a cause of action more than 30 days after it was received by the Court.
[¶10] Section 2-1401 provides a statutory procedure by which final orders, judgments, and decrees may be vacated after 30 days from their entry. People v. Vincent, 226 Ill.2d 1, 7, 871 N.E.2d 17, 312 Ill.Dec. 617 (2007). Pursuant to Illinois Supreme Court Rule 101(d) (eff. May 30, 2008), which governs section 2-1401 of the Civil Code, once a party files a petition for relief, the opposing party has 30 days to answer the petition or otherwise plead. See also People v. Laugharn, 233 Ill.2d 318, 323, 909 N.E.2d 802, 330 Ill.Dec. 780 (2009).
[¶11] Section 2-1401(b) requires " [a]ll parties to the petition [to] be notified as provided by rule." 735 ILCS 5/2-1401(b) (West 2012). Pursuant to Illinois Supreme Court Rule 106, notice of the filing of section 2-1401 petitions " shall be given by the same methods provided in Rule 105." Ill. S.Ct. R. 106 (eff. Aug. 1, 1985). According to Illinois Supreme Court Rule 105, service cannot be made by regular mail. Instead it must be served in the same manner as service by summons, by prepaid certified or registered mail, or by publication. Ill. S.Ct. R. 105(b) (eff. Jan. 1, 1989). We review the dismissal of a section 2-1401 petition de novo. People v. Vincent, 226 Ill.2d 1, 18, 871 N.E.2d 17, 312 Ill.Dec. 617 (2007).
[¶12] In Vincent, our supreme court held that a trial court may sua sponte dismiss a section 2-1401 petition without providing a defendant with notice or an opportunity to address the court, reasoning that because
Page 444
section 2-1401 proceedings are subject to the usual rules of civil procedure, when the State fails to answer a defendant's petition the failure to answer constitutes an admission of all well-pleaded facts. Id. at 9-14. The Vincent court also held that the State's failure to answer the petition rendered the case " ripe for adjudication." Id. at 10. Subsequently, in Laugharn, 233 Ill.2d at 323, our supreme court held that in a case where the State fails to answer a defendant's petition, the case will not be ripe for adjudication until 30 days have passed from the time of service. Id. Hence, a trial court may only properly sua sponte dismiss a section 2-1401 petition 30 days from the date of service. Id. Therefore, in accordance with Vincent and Laugharn, we look to the date of service to determine whether the trial court properly sua sponte dismissed defendant's section 2-1401 petition. See Ill. S.Ct. R. 105(a) (eff. Jan. 1, 1989); Laugharn, 233 Ill.2d at 323-24.
[¶13] Defendant argues that the State was not properly served because defendant placed the petition for mailing with the United States Post Office and therefore the petition was not ripe for adjudication when the court dismissed it. The State counters that it is not clear from the record on appeal that defendant's service did not comply with the requirements of Rule 105(b).
[¶14] We agree with defendant that the State was not properly served in this case. Contrary to the State's argument, the record clearly shows that in defendant's " Proof/Certificate of Service" he attempted to serve the State by placing the documents in the institutional mail at the Menard Correctional Center " properly addressed to the parties listed above for mailing through the United States Postal Service." There is nothing in the record that contradicts this information, nor does either party offer anything to the contrary.
[¶15] The State argues that it effectively waived service by appearing in court and not objecting to improper service. The transcript of the proceedings on June 5, 2014, shows only the judge and the court reporter were present when the court stated, " Kelvin Carter filed a pro se motion to vacate a judgment. Order of Court to 7/10 for court review." From this brief, two-sentence statement of the trial court we can assume nothing regarding the State's knowledge of this petition.
[¶16] When the case next appeared on the court's call on July 10, 2012, the cover page of the report of proceedings reflected that an assistant State's Attorney was " present." The assistant State's Attorney did not make any comment on the record that it was appearing or waiving service. No questions were directed to or comments solicited from the prosecutor by the court. From this record, the State contends it waived the requirement of proper statutory service of the petition.
[¶17] In its petition for rehearing, the State argues that requiring the State to formally waive service directly conflicts with this court's recent opinion in People v. Ocon, 2014 IL App (1st) 120912, 379 Ill.Dec. 616, 7 N.E.3d 42. In Ocon, the defendant argued that the trial court's sua sponte dismissal of his section 2-1401 petition was improper as premature because the State had not been properly served with the defendant's petition. In support of his argument, the defendant cited People v. Prado, 2012 IL App (2d) 110767, 979 N.E.2d 564, 365 Ill.Dec. 960, and People v. Nitz, 2012 IL App (2d) 091165, 971 N.E.2d 633, 361 Ill.Dec. 531.
Page 445
[¶18] In People v. Nitz, the defendant's proof of service showed that he mailed his section 2-1401 petition to the circuit court for filing but there was no proof of service on the State. The trial court sua sponte dismissed the petition. A panel of the Second District of this court reasoned that the dismissal was proper because the failure to give notice amounted to a deficient pleading. However, the Nitz court held the dismissal was premature because the 30 days for the State to respond had not commenced. It concluded that the appropriate action was to dismiss the petition without prejudice for a failure to comply with section 2-1401, reasoning that a remand for further proceedings would be meaningless where no further proceedings would occur, because the State would never move to answer or move to dismiss the petition, and the court would be unable to take any action while the case remained permanently on its docket. Id., ¶ 13.
[¶19] In People v. Prado, defendant sent service of his section 2-1401 petition to the State through regular mail. The trial court sua sponte dismissed the petition. On appeal, a panel in the Second District court agreed with the holding in Nitz that the dismissal on the merits was premature when service was improper, but disagreed that dismissal without prejudice was the proper disposition. Instead, the Prado court agreed with the decision in Powell v. Lewellyn, 2012 IL App (4th) 110168, ¶ 14, 976 N.E.2d 1106, 364 Ill.Dec. 543, wherein the Fourth District noted that remanding for further proceedings would not be meaningless or result in the case being indefinitely set on the court's docket. The
Prado court found that an immediate sua sponte dismissal even without prejudice was premature. The court's reasoning was consistent with Lewellyn, that " if defendant wished to have his case heard, he can promptly serve the State. [Citation.] Otherwise, the trial court has the power to dismiss the case for want or prosecution, after a reasonable period of time." Prado, 2012 IL App (2d) 110767, ¶ 9. The court also stated that the action could be dismissed under Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), if the defendant failed to exercise due diligence in serving the State. Id.
[¶20] The Ocon court found that, unlike the cases cited by the defendant, an assistant State's Attorney was present in court when Ocon's petition was docketed and the subsequent dismissal by the trial court's was entered after the 30-day period for a response had passed.
" Although the record is unclear whether defendant properly served the State with his section 2-1401 petition, the State had actual notice of the filing of the section 2-1401 petition. The report of proceedings from January 10, 2012, indicates that an assistant State's Attorney was present for defendant's case when the trial judge docketed the petition. This is in contrast with the facts in Nitz where the prosecutor was present only when the case was dismissed, which did not permit time for the State to receive notice of the petition and choose to respond." Ocon, 2014 IL App (1st) 120912, ¶ 31.
[¶21] Unlike Ocon, there is no indication in this case that anyone other than the judge and the court reporter was present in court when defendant's petition was docketed on June 5, 2012. Only the cover page of the report of proceeding shows that an assistant State's Attorney was present when the petition was dismissed on July 10, 2012. Nothing indicates that the prosecutor had any knowledge of, and could therefore knowingly waive, service of the petition. The entire record of the
Page 446
court's dismissal of the petition reflects the trial court stating, " [a]lso post-conviction petition 2-1401 petition, Kelvin Carter, he's on sheet one. Mr. Carter is not present, he's in IDOC custody. His 2-1401 petition is dismissed. Copy of the written order in the file is to be sent to defendant by the clerk within ten days." The State did not make a single utterance or take any position on the existence or dismissal of defendant's section 2-1401 petition. We cannot assume the state had knowledge of the petition and waived service simply because the prosecutor was shown on the cover page of the transcript of the proceedings as " present" in court at the time the case was called.
[¶22] We could assume the judge believed the State had been served because the circuit court clerk had also been served and the notice of mailing reflected the document was mailed to both entities. We could also assume the court made the assumption that the State need not or would not respond once it took the time to review the petition. We could further assume that the absence of any utterance attributed to the assistant State's Attorney is because the assistant was otherwise occupied and focused on other matters or was in fact unaware of the petition or that it was under consideration by the court. In short, there are many events that one could assume took place where the prosecutor was shown to be present that do not necessarily reflect service of the petition and an intentional waiver of service and right to respond.
[¶23] The criminal justice system has many important moving parts, one being the prosecutor. It is not the function of the reviewing court to assume what the State " effectively" intended based on the record before us. Prosecutors have a job to do and that job includes standing before the trial court and clearly and articulately stating the State's position regarding the matter at hand.
[¶24] The State's argues that in the interest of judicial economy we find that the State waived service and affirm the trial court. Judicial economy is best served when the prosecutor, in the first instance, affirmatively spreads of record whether the petition has been served and, if not, whether the state intends on waiving the required service. When this has been done, the trial court will be in a position to inquire whether the prosecution intends to file a response. Should the trial court then dismiss the petition, this potential appellate issue will be eliminated. Otherwise, notwithstanding the reasoned decision in Ocon, section 2-1401 defendants that use the same or similar method of service as used by the defendant in this case will routinely seek appellate review.
[¶25] Because a case is not ripe for adjudication until 30 days after service, the circuit court in this case prematurely dismissed defendant's petition sua sponte where service was never effectuated. Laugharn, 233 Ill.2d at 323. In the absence of proper service, we choose to follow Prado with respect to its disposition as we find it to be more in line with existing case law. Because Laugharn and Vincent demand that we base our determination as to whether the circuit court prematurely sua sponte dismissed a section 2-1401 petition by looking at the date of service, it necessarily follows that proper dismissal, either with or without prejudice, cannot be achieved without service or an affirmative showing that proper service was waived by the prosecution. See Ill. S.Ct. R. 105(a) (eff. Jan. 1, 1989); Laugharn, 233 Ill.2d at 323-24; Vincent, 226 Ill.2d at 5.
Page 447
[¶26] Therefore, because there is no evidence that the State was properly served in this case, the court sua sponte dismissed the section 2-1401 petition prematurely. In accordance with Prado, the appropriate disposition is to vacate and remand for further proceedings.
[¶28] For the foregoing reasons, the circuit court's sua sponte dismissal on the merits of defendant's section 2-1401 petition was premature. We vacate the judgment of the circuit court and remand for further proceedings.
[¶29] Judgment vacated; cause remanded for further proceedings.
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Appeal from the Circuit Court of McLean County; the Hon. Wayne
C. Townley, Jr., Judge, presiding.
After a jury trial, defendant Willie Singleton was convicted of the offense of aggravated battery. (Ill. Rev. Stat. 1981, ch. 38, par. 12-4.) Upon consideration of his criminal record, he was sentenced to three years' imprisonment, the sentence to run consecutive to the 10-month misdemeanor sentence of imprisonment then being served. Defendant appeals the judgment of the circuit court of McLean County. We affirm.
Defendant raises two issues on appeal: (1) Whether the language of section 5-8-4(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(d)) prohibits the trial court from ordering a defendant to serve a felony sentence consecutive to the misdemeanor sentence of imprisonment then being served; and (2) whether a consecutive sentence may properly be imposed where the trial judge does not use the statutory language of section 5-8-4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(b)) to indicate such sentence was imposed to protect the public.
The record discloses the following facts. On the evening of March 27, 1982, while at the Salt and Pepper Lounge in Bloomington, Illinois, defendant struck one Horace Yarbrough in the head causing his nose to bleed. Defendant left the bar, reentering several minutes later with one hand in his raincoat pocket. He drew this hand from his pocket and struck Yarbrough again, knocking him unconscious. Several witnesses testified that they saw a gun cupped in defendant's hand as he struck Yarbrough after reentering the bar. There was testimony that defendant then "stomped" Yarbrough's head. During the course of these events, Yarbrough made no attempt to strike the defendant. As a result of the incident, Yarbrough received 43 stitches inside and outside the area of his mouth and near one eye. One of his teeth was knocked out and his dentures were broken.
On January 14, 1983, a jury found defendant guilty of the offense of aggravated battery.
The sentencing hearing was held on February 28, 1983. The State argued that a sentence of five years' imprisonment was necessary to protect the public; and that a lesser sentence would deprecate the seriousness of the offense and minimize defendant's criminal record. The presentence report reflects the following prior convictions of defendant:
6/14/61 Indecent liberties one to three years, Illinois Department of Corrections Penitentiary System
2/9/63 Paroled
10/10/65 Disorderly conduct Fined $100; spent two days in county jail
4/7/74 Aggravated assault Fined $32.60
4/30/74 Battery Fined $150
8/10/75 Wrong way on one-way street Fined $10 plus costs
10/16/76 Unlawful use of weapons Sentenced on March 3, 1977, (76-CM-1433) to one year probation, fined $75 and ordered to spend two days in county jail
3/25/77 Failure to obey police officers Fined $50 plus costs
6/18/78 Unlawful use of weapons Sentenced on February 21, (78-CM-659) 1979, to 12 months' probation, 30 days in jail, and a fine of $100 plus costs
1/20/79 Criminal damage to property Sentenced on May 18, 1979, to (79-CM-99) 12 months' probation and ordered to pay a $200 fine, costs, and $51.99 restitution
8/2/80 Resisting a police officer Sentenced on November 25, (80-CM-1284) 1980, to 12 months' probation and 14 days in jail
3/25/81 Deceptive practice over $150 Convicted on April 21, 1982; (81-CF-385) sentenced on May 14, 1982, to a term of 30 months' probation and ordered to pay $145 restitution plus costs within 12 months
6/12/81 Battery (81-CM-856) Pleaded guilty on September 20, 1982; ordered to pay $50 fine plus costs
7/5/81 Unlawful use of weapons Sentenced on March 19, 1982, (81-CM-1064) to 10 months in the Department of Corrections — Penal Farm; case appealed; sentence upheld by mandate on November 21, 1982; mittimus issued December 1, 1982
9/25/82 Battery, resisting a peace Hearing pending officer (82-CM-1308)
In pronouncing sentence, Judge Townley made the following observations:
"Mr. Singleton, I'm sorry to say I'm afraid the record here indicates that you have repeatedly been given opportunities to straighten out your life. Now you had four [five] probations granted to you before you committed this offense. Four [five] different times you got * * * probation with some time, small jail sentences. At the time you committed this offense you had just been sentenced eight days before to ten months and had appealed that case and were out waiting disposition of the appeal so within eight days after you had been sentenced for ten months at the Penal Farm for unlawful use of weapons, which would indicate to you you are facing real trouble, and you needed to straighten yourself out, you got involved in this which is a serious offense from the testimony as to the injuries that Mr. Yarbrough had and the circumstances under which the offense took place.
The Court just cannot consider this to be other than a serious offense, and so I cannot admit you to probation this time, and I am going to sentence you to the Illinois State Penitentiary for a term of three years which is not what the State is asking, and it is not the minimum sentence. However, the Court is going to provide that that three-year sentence is to be consecutive to the ten months you are serving. And the reason is there is no reason to reward you for getting involved in more trouble again after you had been sentenced to 10 months and say, `We will just throw those two sentences together,' because it is obvious to me that that would be a miscarriage of justice. And while the Court could impose a greater sentence here, it seems to me that isn't the point. The point is that we should make the sentence consecutive so you are serving your sentence for the ten months * * * which is a separate item from this and also impose the three year sentence for your charge here. Now the Court could impose a greater sentence, but it would appear to me not to be the way to handle this case.
You pay the penalty on each of those separately, and the Court is going to order a Mittimus to issue. * * * And depending on your conduct, you are entitled to earn some good time and some early release periods, but in the meantime you are going to have to remember what you do is primarily going to determine when you are going to get out. I think it is time you realize if you don't change your conduct you are going to get longer and longer sentences here. And if you do, you are going to end up paying the penalty if you make the wrong decision [about] what you are going to do."
• 1 Defendant first contends that the trial court erred by ordering his felony sentence to be served consecutive to the 10-month misdemeanor sentence in 81-CM-1064. Section 5-8-4(d) of the Unified Code of Corrections states:
"An offender serving a sentence for a misdemeanor who is convicted of a felony and sentenced to imprisonment shall be transferred to the Department of Corrections, and the misdemeanor sentence shall be merged in and run concurrently with the felony sentence." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(d).)
Defendant urges that the language of this statute be read as mandatory, citing People ex rel. Moss v. Pate (1964), 30 Ill.2d 271, 195 N.E.2d 641. We disagree for several reasons and find that the language of section 5-8-4(d) is directory.
• 2 The use of the word "shall" in a legislative enactment does not automatically dictate a mandatory construction. See, e.g., People v. Davis (1982), 93 Ill.2d 155, 442 N.E.2d 855; In re Application of Rosewell (1983), 97 Ill.2d 434, 454 N.E.2d 997.
This court has held that when a defendant is first sentenced for a felony and subsequently sentenced for a misdemeanor conviction, the sentences need not be merged under section 5-8-4(d). People v. Porzelius (1981), 97 Ill. App.3d 865, 423 N.E.2d 985.
• 3 The language and structure of article 8 of the Unified Code of Corrections, effective January 1, 1973 (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1 et seq.), shows both explicitly and implicitly that contemporaneous sentences of imprisonment imposed for a misdemeanor and a felony may be either concurrent or consecutive. Section 5-8-1 states the scheme of sentences for felonies, while section 5-8-3 provides the terms of sentences for misdemeanors. Section 5-8-4(a) provides general judicial authority in the language "* * * when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State * * * the sentences shall run concurrently or consecutively as determined by the court." (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(a).) That section continues to state that sentences shall be served concurrently unless otherwise specified by the court, but does not distinguish the exercise of judicial discretion as between felonies and misdemeanors, severally or jointly.
Subsection (b) of section 5-8-4 states certain standards for the exercise of judicial discretion in imposing a consecutive sentence without distinction between a felony and a misdemeanor. Subsections (c)(1) and (c)(2) state the limits upon the aggregate maximum period permitted for consecutive sentences and each subsection includes a provision applicable "* * * [w]hen sentenced only for misdemeanors * * *." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(c)(2).
Subsection (d) has been quoted as incident to defendant's argument for relief. That argument disregards the language of the subsection which immediately follows:
"(e) In determining the manner in which consecutive sentences of imprisonment, one or more of which is for a felony, will be served, the Department of Corrections shall treat the offender as though he had been committed for a single term with the following incidents: * * *." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(e).
Section 5-8-4(e)(1) further specifies:
"[T]he maximum period of a term of imprisonment shall consist of the aggregate * * *, if any, plus the aggregate of the imposed determinate sentences for felonies plus the aggregate of the imposed determinate sentences for misdemeanors * * *." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(e)(1).
The sum of the language of the several provisions simply does not countenance an argument that the trial court is without authority to impose consecutive sentences of imprisonment upon convictions of felonies and misdemeanors or support a view that a misdemeanor sentence of imprisonment must necessarily be merged with a felony sentence.
The opinion in People ex rel. Moss v. Pate (1964), 30 Ill.2d 271, 195 N.E.2d 641, does not enhance the effect of section 5-8-4(d) upon the issue. Pate substantially antedates the Uniform Code of Corrections and its provisions for concurrent and consecutive sentences. There were no judicial consecutive sentences concerned, although it may be said that a consecutive sentence was effectively created by the action of the prison administration. The court considered the "merger" language found in the then penitentiaries code (Ill. Rev. Stat. 1961, ch. 108, par. 49.1). The language of that section is of similar purport to that of subsection (d), but as construed in the Pate opinion cannot be associated with a judicial consecutive sentence under the present code.
• 4 Examination of the language and structure of article 8 of the Code makes clear that section 5-8-4(d) providing for the "merger" of misdemeanor and felony in prison does not bar a judicial decision to impose the consecutive sentences upon coexisting convictions of felony and misdemeanor. We conclude that a construction of 5-8-4(d) as directory is consistent with the legislative intent and is designed to control the administration of sentences where there is no judicial imposition of consecutive sentence.
• 5 We next consider the merits of defendant's argument that the judge erred in imposing consecutive sentences since he did not state that the term was necessary for the protection of the public. The State argues that the sentencing court need not include a ritualistic recitation of the statutory language of section 5-8-4(b) that "a consecutive term is required to protect the public from further criminal conduct by the defendant." This precise issue was considered by the supreme court in People v. Pittman (1982), 93 Ill.2d 169, 442 N.E.2d 836. Therein the court stated:
"Although it would be better practice to state the opinion in the language of the statute, failure to do so does not necessarily require reversal. (See People v. Davis (1982), 93 Ill.2d 155; People v. Kuesis (1980), 83 Ill.2d 402, 409-10; People v. Cox (1980), 82 Ill.2d 268, 280-81; People v. Meeks (1980), 81 Ill.2d 524, 534.) What is required is that the record show that the sentencing court is of the opinion that a consecutive term is necessary for the protection of the public. * * * As to the sufficiency of the reasons set forth in the record for the consecutive sentence, it is settled that a reviewing court will not substitute its judgment for that of a sentencing court merely because it would have balanced the appropriate factors differently. (People v. Perruquet (1977), 68 Ill.2d 149.)" (93 Ill.2d 169, 177-78, 442 N.E.2d 836, 840.)
(See also People v. Soloman (1983), 116 Ill. App.3d 481, 451 N.E.2d 953.) We conclude that the reasons for sentencing set forth in the record are sufficient to satisfy the requirements of section 5-8-4(b).
• 6 Finally, defendant contends the only reason the trial court imposed a consecutive sentence was to punish him for committing another crime. We are satisfied that consecutive sentence was imposed in view of the nature and circumstances of the offense and the history and character of the defendant, consistent with the terms of section 5-8-4(b).
MILLS, P.J., concurs.
JUSTICE WEBBER, concurring in part and dissenting in part:
I concur with my colleagues that the trial judge need not recite the precise statutory litany when imposing a consecutive sentence. I disagree, however, that a trial judge possesses unbridled authority to impose a consecutive sentence. Section 5-8-4(d) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(d)) represents one restriction.
Pate, rejected by the majority, is precisely in point. Present section 5-8-4(d) is simply a paraphrase of former section 1 of "An Act in relation to merger of certain sentences" (Ill. Rev. Stat. 1961, ch. 108, par. 49.1). An offender cannot be "transferred to the Department of Corrections" within the meaning of section 5-8-4(d) unless he is already serving some sentence elsewhere, presumably in the county jail under section 5-8-6(b) of the Code. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-6(b).
The majority's reliance on section 5-8-4(e) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(e)) is misplaced. In my opinion sections 5-8-4(d) and 5-8-4(e) are aimed at different situations. (d) deals with the case wherein an offender is already serving a term for a prior and unrelated misdemeanor; (e) is directed at multiple convictions, both felony and misdemeanor, growing out of the same act or series of related acts. The Pate court saw this clearly and precisely articulated the legislative policy behind it. The wisdom of the merger policy is not for us to examine.
In the instant case the trial judge appeared to be aware of the problem by saying, "Now the Court could impose a greater sentence, but it would appear to me not to be the way to handle the case." It appears to me that this is precisely the way to handle the case. If the trial judge is insistent that both offenses be punished, and if he is aware of the merger provisions of the statute, all that need be done is to increase the felony sentence by the amount of the unserved time under the misdemeanor sentence.
The business of construing a statute under the mandatory-versus-directory hypothesis is a tricky operation at best and is too slender a reed upon which to lean in this case. The question should not even be reached.
I would affirm the convictions but vacate their consecutive nature pursuant to this court's authority under Supreme Court Rule 366(a)(5) (87 Ill.2d R. 366(a)(5)).
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PGA Tour Majors
The PGA Tour hosts four major championships each calendar year, with three played in the United States and one in the United Kingdom. These tournaments are the pinnacle of professional golf, and some of the finest names in the sport have lifted championship trophies.
Click on any of the following tournaments for a more in-depth description:
The Masters
Location: Augusta National Golf Club
Hosted by: Invitational
First Tournament: 1934
Current Champion: Phil Mickelson
US Open
Location: Various locations in the United States
Hosted by: USGA
First Tournament: 1895
Current Champion: Graeme McDowell
British Open
Location: One of nine links courses in the United Kingdom
Hosted by: The R&A
First Tournament: 1860
Current Champion: Louis Oosthuizen
PGA Championship
Location: Various locations in the United States
Hosted by: Professional Golfers� Association of America
First Tournament: 1916
Current Champion: Yang Yong-eun


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Never leave batteries unattended whilst charging. Never charge for more than four hours at a time.Vapouriz
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Your Lumina Starter Kit will come complete with a free 10ml Vapouriz E-Liquid, in the flavour of your choice and the range includes everything from traditional tobacco to blueberry, cola and mint.
Never leave batteries unattended whilst charging. Never charge for more than four hours at a time.
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Our UK free delivery service will generally mean that if placed between Monday and Friday your order will arrive the day after you place the order as all orders are sent out via Royal Mail First Class delivery, however on the rare occasion it can take up to 7 days (note Royal Mail does not deliver on a Sunday).
Next Day (guaranteed) Delivery - Royal Mail Special Delivery (Next Day by 1pm) - £5.99
Royal Mail Special Delivery orders will be delivered by 1pm the next working day when placed before 4pm Mon - Fri. This service is unavailable in certain outlying areas and deliveries do not occur Sundays or Bank Holidays.
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This product comes with a 60 days warranty from date of order. However, this does not cover misuse, damage or standard wear and tear.
The Electric Tobacconist® Ltd abides by the Distance Selling Act (2000). If, once you have purchased items from us, you decide you no longer want them, then you have 28 calendar days in which to return them and we will refund them in full within 28 days of the cancellation date (including any postage and packing paid) as long as the packaging remains unopened. This excludes e-liquids, clearomizers and disposables.


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Fergie's Pub
Every Monday at 9pm
Hosted by Allie1214 Sansom Street
Philadelphia, PA
- There is an on going open mic at this place on Monday's 9 PM 2015-07-20
- reply to this commentJohn Yaschur III (7/2015)
- The Open Mic has a new host and is regaining its mojo.
- reply to this commentAnonymous (11/2010)
Went there for the 4th time last night. Pete's no longer running the Open Mike, it's now run by Allie, the bartender. She's really busy running the bar and sound and the list, so it'll start later than 9:00.
And, the talent was pretty slim. This event has lost its mojo.
- reply to this commentFred Bement (10/2010)
Excellent night last night. Pete runs a really fun open mike and attracts REALLY talented musicians.
I recommend you stop by and give this one a try.
- reply to this commentFred Bement (6/2010)
This was my first open mic. Decent crowd of about thirty people. There may had been more if it weren't for the Phillies game that night.
Peter runs the show and does a good job at it. It seems to me that his friends are the majority of the performers, and they are a mix of different skill levels anywhere from decent to excellent. Nobody sucked except some random guy, and after his first song, Peter kindly asked, "One more man?" and the sucky act replied "Nah, I got two more." People then proceeded to leave.
If you're on a schedule and you have to play and run, this probably isn't for you. I didn't even go on until thirty minutes after the time slot I signed up for. That put me behind, but no big deal.
- reply to this commentAndrew Foust (10/2009)


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Radford University, located in Radford in the U.S. state of Virginia, is one of the state's eight doctoral-degree granting public universities. Originally founded in 1910, Radford offers comprehensive curricula for undergraduates in more than 100 fields, and graduate programs including the M.F.A., M.B.A. and specialized doctoral programs in health-related professions. Radford's undergraduate programs emphasize the liberal arts, business, and teacher education. The graduate and undergraduate programs in business administration offered by the College of Business and Economics at Radford University are accredited by the AACSB International The Association to Advance Collegiate Schools of Business. Radford is among the 9 percent of the world's (top 10% in the United States) business schools that have achieved business and/or accounting accreditation from AACSB. The university has a student/faculty ratio of 19:1 with an average class size of 30 to 40.
Contributions by Bvjrm, Ma3145tt, and KenDawg07.


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United States District Court, Northern District of Illinois, Eastern Division
March 12, 2003
ARQUEST, INC., PLAINTIFF,v.RHONDA TRACY, DEFENDANT.
This matter comes before the court on Plaintiff Arquest, Inc.'s ("Arquest") motion for attorney's fees pursuant to 35 U.S.C. § 285 and motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. For the reasons set forth below, we deny the motion for sanctions and grant the motion for attorney's fees.
This lawsuit arises from a patent, U.S. Pat. No. 5, 797, 824 (the "`824 patent"), held by Rhonda Tracy. The `824 patent covers an improvement for disposable diapers. Arquest sued Tracy for declaratory judgment that its diapers (the "Arquest Diapers") and training pants (the "Arquest Pants") do not infringe the `824 patent and that the `824 patent is invalid. Tracy filed a counterclaim in the action alleging infringement. Previously, we granted summary judgment that the Arquest Diapers and the Arquest Pants do not infringe the `824 patent. Arquest, Inc. v. Tracy, 2002 WL 31744658 (N.D. Ill. Dec. 5, 2002). Subsequent to the summary judgment, Arquest filed the present motions, which are based on Tracy's filing and maintenance of her counterclaim as well as certain arguments made in support of the counterclaim and against summary judgment of non-infringement.
Arquest moves to sanction counsel for Tracy for violating Rule 11(b)(3) of the Federal Rules of Civil Procedure by making allegations and other factual contentions without evidentiary support. Rule 11(b)(3) states:
By presenting to the court (whether by signing,
filing, submitting, or later advocating) a pleading,
written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of
the person's knowledge, information, and belief,
formed after an inquiry reasonable under the
circumstances . . .
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so
identified, are likely to have evidentiary support
after a reasonable opportunity for further
investigation or discovery.
Arquest moves for attorney's fees pursuant to 35 U.S.C. § 285, which states that, with respect to patent cases, "[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party." 35 U.S.C. § 285. An exceptional case may be established by showing, for example: "inequitable conduct before the PTO; litigation misconduct; vexatious, unjustified, and otherwise bad faith litigation; [or] a frivolous suit or willful infringement." Epcon Gas Sys. v. Bauer Compressors, 279 F.3d 1022, 1034 (Fed. Cir. 2002). A finding that a case is exceptionaj is a factual finding for the court and must be supported by clear and convincing evidence. Hoffmann-La Roche Inc. v. Invamed Inc., 213 F.3d 1359, 1365 (Fed. Cir. 2000). Arquest contends that this case is exceptional because counsel for Tracy failed to perform an adequate infringement investigation before filing Tracy's counterclaim and because Tracy maintained frivolous infringement arguments. As we stated above with respect to the Rule 11 motion, we are unconvinced that counsel for Tracy did not perform an adequate pre-filing investigation. Thus, we immediately turn to the issue of maintaining frivolous infringement arguments.
In our summary judgment ruling, we held that the Arquest Diapers did not infringe claim 2 of the `824 patent because they lacked two elements of the claim: "the first strip providing an additional absorbent barrier against leakage" and a "soft substance presenting a soft surface along at least a portion of said inside of the diaper waistband portion despite said plastic layer edge." Tracy argued that the elastic member of the Arquest Diapers satisfied both of these elements. Both arguments were unjustified.
The elastic member is utterly nonabsorbent. Tracy's insistence that it is capable of providing an additional absorbent barrier against leakage was unjustified.
The elastic member does not present a soft surface for a baby's skin or protect a baby's skin against a plastic layer edge in any manner because the elastic member material is sandwiched between two other layers. Because it is sandwiched, it cannot and does not contact the baby's skin or cover any portion of a plastic layer edge that would otherwise be exposed to the baby's skin. Tracy's argument as to this element was unjustified.
In our summary judgment ruling, we held that the Arquest Pants did not infringe claim 2 of the `824 patent because they lacked two elements of the claim: "a plastic layer having an edge at the edge of the diaper" and a "soft padding member being distinct from all of said body-portion layer." Tracy unjustifiably argued that both elements were present in the Arquest Pants.
The edge of the plastic layer in the Arquest Pants is clearly not at the edge of the diaper — indeed it is approximately three-quarters of an inch from the edge of the diaper. Tracy even acknowledged that the edge of the plastic layer in the Arquest Pants was "not `at' the edge of the diaper but near the edge." (Tracy's SJ Opp. at 17.) Nevertheless, she maintained her suit against Arquest under the doctrine of equivalents. Tracy argued that the claim term "at" could be expanded to mean "near" under the doctrine of equivalents. As explained in our previous holding, however, Tracy clearly and unequivocally relinquished any coverage for an edge of the plastic layer not "at" the edge of the diaper when she amended her claims and stated her reason for so doing. Arquest, 2002 WL 31744658, *7. Tracy's attempt to recapture patent protection which she clearly yielded during prosecution was unjustified.
Tracy accused the outer body portion (or backsheet) layer of the Arquest Pants of being the soft padding member. Claim 2 requires a "soft padding member being distinct from all of said body-portion layer." This clearly means that the soft-padding member cannot be one of the body portion layers. Despite this straightforward claim language, Tracy maintained that the outer body portion layer of the Arquest Pants provided the soft padding member. Even under the doctrine of equivalents, Tracy's argument was unjustified. See Warner Jenkinson Co. v. Hilton Davis Chem., 520 U.S. 17,39 n. 8 (1997) ("if a theory of equivalence would entirely vitiate a particular claim element," the theory is in applicable).
Based on the foregoing analysis, we deny the motion for sanctions and grant the motion for attorney's fees.
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What's next Stewy?Great Satan and Shitreal's new Doctrine = Kill and be killed - you can run but you can't hide behind the apartheid wall
Is the great nation of Persia going to mop the floor with Jew-heads? You of all people would benefit greatly from a high colonic. Do it today...you'll thank me for it.


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Digital Issues
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Issues In Print
Most issues back to 1990 are available in print for $10.00 each (includes US shipping). Quantities are limited.
Issue List
December, 2016
- Community Lives: Creating a universal language
- Perspectives: Colloquial and formal communication choices
- Perspectives: Translation: the business of innovation
- Post Editing
- Continuous delivery for emerging markets
- Entering Latin America
- India vs Latin America: Similarities and differences
- Iran as an emerging market
- Localization for the next generation of emerging markets
- The calculus of global content
- Adventures in DTP
- Crossing sentence boundaries in statistical machine translation
Oct/Nov, 2016
- Brexit and the European Union: Causes and consequences
- The Taiwanese linguistic mosaic
- Community Lives: Apertium: Free and open-source MT
- Perspectives: Translating in Asia
- Post Editing
- Chinese construction equipment - building a brighter future
- Creating a language lexicon for Asian languages
- Just a garage band from Shanghai - Radical localization and the future of global enterprise
- Localizing for India
- Unification and its discontents in Southeast Asia
- Word order errors in Simplified Chinese MT
- Nostradamus and the localization industry
- A comparative study of post-editing guidelines
September, 2016
- Community Lives: TED community and translation
- Perspectives: Navigating the maze of interpreting and certification
- Perspectives: Risk-taking in the translation industry
- Post Editing
- World Savvy: Will English exit the EU because of Brexit?
- Automatic interpretation for health care
- Behind Skype's machine interpreting
- Life sciences regulatory updates in the EU
- The Turkish market for medical devices
- Creating a global platform for creative writing and translating
- Selling 101 for freelancers
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Jul/Aug, 2016
- Translation management in a continuous delivery world
- Community Lives: Localization volunteer communities
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- Perspectives: Working together on open source
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- Errors in MT and human translation
- Machine translation with brains
- Origins and functionalities of Microsoft's MAT tool
- Overcoming the challenge of the mobile economy
- Translating Rapanui
June, 2016
- A new model for moderator-translator teams
- An approach to risk management in the language industry
- Community Lives: Red T
- Localization Business School: It's about people and relationships
- Off the Map: Emerging game industries
- Post Editing
- Character corruption in video games
- Entering mobile gaming markets in Southeast Asia
- MMOs: A strategy for world domination
- Mobile-first development and localization
- The double whammy of game localization
- The price of infinite choice
- TV screens and internet memes
- Passwords to Paradise
- Game, Set and Match
April/May, 2016
- Community Lives: The open source way
- Localization Business School: Diving into localization - Creating your own clear blue startup ocean
- Perspectives: Planning for the future - Thinking beyond the initial startup stages
- Post Editing
- Eunicorns: How European startups go global
- Localization for startups
- Preparing your team to localize more mobile moments
- Startup localization and the eCommerce hosting landscape
- The catch-22 of startup localization
- The language of unicorns
- Nine terminology extraction tools - Are they useful for translators?
- The translation leverage model
- Exchanging translated HTML data (almost) painlessly
March, 2016
- Community Lives: PanLex - A database for extreme localization
- Localization Business School: How terminology makes or breaks sales
- Off the Map: When things go wrong
- Post Editing
- Multilingualism and language choice in Sub-Saharan Africa
- Dubbing localization in Europe
- Medley of European localization issues: Views from academia
- Standards, terminology and Europe
- The refugee crisis: A Europe unsure of itself
- Vive la différence: Specializing in non-English languages
- Lingo: Around Europe in Sixty Languages
- The euphemisms of Europe
- Finding a place for SEO in translation
January/February, 2016
- Community Lives: Endangered languages
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- Post Editing: Interpreting versus translation
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- Teaching interpreting in community settings
- The cost of providing quality interpreting
- The growing interpreting market
- Lilt
- The inside game and your unique selling proposition
- Preparing image text for CAT tools
- Open course translation in China
December, 2015
- Localization in the era of disintermediation
- Community lives: Women in Localization
- Localization Business School: The talent trap
- Off the map: The death of context
- Post Editing: Education around the world
- Academia expectations versus industry reality
- Educating the United Kingdom's linguists of tomorrow
- Redefining translation courses with cloud-based technologies
- Securing a competitive edge through further education
- The state of post-editing
- On accepting projects
- Driving international rank with SEO
- Translating from multiple source languages using fuzzy matching


text:
Aslan Court 2
Posted by βogus October 7, 2013
Posted in DAZ | Poser | Carrara, Scenes & Props
Aslan Court is a complete 360-degree 3D interior environment featuring timeless Persian-styled architecture. This set features a modular design that can be broken down into pieces with preloads to load only what you require. Mix and match the parts to create different designs.
Each wall section can be individually hidden. This provides a vast array of options for future add-on packs. DAZ Studio 3.5 and 4 light sets have been included, as used in the promo imagery.
Note: To use the fully loaded set, a reasonably powerful computer is recommended. Short-cuts can be made using the presets of the product and limiting which parts you load.
Aslan Court 1 and Aslan Court 2 can be used separately or together. The product images show some ways to use them together.


text:
Count down to Christmas
Orders taken now
Now stocking VOLUSPA candles
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Whether it's a Wedding flower package or a beautiful flower arrangement for someone special, view our locally sourced Gold Coast and Brisbane Flowers online.


text:
Tatted Up LEGOs
via BoingBoing
7 comments:
Super Cool...is anyone selling these...I want one !!ReplyDelete
Wow... that is some fine detail, indeed! Thanks for sharing.ReplyDelete
2 thingsReplyDelete
1. They sell the pens. I want some now.
2. I clicked through to see the rest. Sad that in even in Lego world, the guys get to be strong and the woman gets sexualized. :P Otherwise, cool idea.
No wait, 3.
3. Your blog rocks. I don't know how you find all the stuff you do, but it's sweet.
Elizabeth, I agree that there's something wrong about sexualizing female legos, but thanks for the awesome compliment on the blog!:-)ReplyDelete
Oh, tattoos on lil' Lego people; how sad, how very very sad.ReplyDelete
Hey, esbboston, I'm just wondering why every comment you make is negative? Am I missing the joke, or do you truly just not like the stuff I post? Truly curious here.ReplyDelete
The inkwork on these figs is very cool; however I have a feeling that they are not really lego minifigs. No pen point can go that fine.ReplyDelete
... and Paul, I love your Blog!


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In case you missed AUTOMatic and 3099 at "Chill on the Hill"
Last Thursday I had the pleasure of sitting in the plush grass of Humboldt park for it's weekly Chill on the Hill event. Local hip hop persons, AUTOMatic, were there in full fashion to entertain the family-friendly crowd. Before AUTOMatic got started; frontman, A.P.R.I.M.E., performed music from his latest album under the moniker "3099" with award-winning rockers, Midnight Reruns. Check out the photos and video below!
All photos and video by Damon "Jank" Joy
New AUTOMatic single "Sweet Life" leaked
Milwaukee's powerhouse hip hop group AUTOMatic has been rocking your mp3 players and stages for a few years now. Their popularity in and outside of Milwaukee has made put them at the top of the hip hop game in the city. With a new album coming in a few short weeks, someone in AUTOMatic's camp has taken it upon themselves to leak the first sing off of, the coming new release, The Rough MIxtape through Dope Folks Records. Take a listen to the "Sweet Life" below and I guarantee your head will nod.
AUTOMatic Rocks Summerfest Manually
If you went to see any local hip hop shows at Summerfest this year you undoubtedly saw A.P.R.I.M.E. (I hate typing his name) of AUTOMatic on every stage as a guest or with his group. Milwaukee's AUTOMatic (Trellmatic and A.P.R.I.M.E.) Also opened for Common on the Harley Davidson stage with deejays JDL, Bizzon and DMT. They put on a pulse pounding show for hundreds of hip hop starved fans and artists. I also took part with DJ Bizzon in tossing our new mixtape onto the audience. I later lost all control when "Merci" was played and I started dancing on stage only too realize later I was on jumbotron screen. Anyways, look at all the pretty pictures.
MKE Hip-Hop at the Big Gig: AUTOmatic with the jazzy-feel appeal to it
Photo by: Damon "Jank" Joy
AUTOmatic's last album "Transistor" has not left my car since 2010, when was released. The duo of rapper A.P.R.I.M.E. and producer Trellmatic have a certain chemistry that only comes along rarely, and it shows through their music. There are plenty of comparisons that can be made ranging from groups like Little Brother or De La Soul, but they have a unique sound that sets them apart. »Read Full Blog Post
New Video: AUTOmatic - "Move"
AUTOmatic, the duo of MC A.P.R.I.M.E. and producer Trellmatic are gearing up for their upcoming album release, "Art Imitates Life" with the first video for the track "Move". This is actually the second version of the song and Jon Frost provided the newness to it. There is also another remix done by Milwaukee producer Reason that we may get into later.
A.P.R.I.M.E., also called "3099", hits the future with this video where one commenter said he wanted some "matrix cheerios" after watching. Looks like they stole a future Black Eyed Peas video and then added more future to it to create what you are about to see. Dope video and all I hear from the producers on the album and Kid Millions from Dope Folks Records, who is distributing it on vinyl, is that its dope. So when it comes out, we will be first to let you know.


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March 10, 2006
GARY BEAUVOIR, PLAINTIFF,v.UNITED STATES SECRET SERVICE, JAMES DOE (UNKNOWN SECRET SERVICE AGENT), AND JACK DOE (UNKNOWN SECRET SERVICE AGENT), DEFENDANTS.
MEMORANDUM and ORDER
Plaintiff brings this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, to recover damages for injuries he allegedly sustained in a July 2004 automobile accident involving defendants. On February 10, 2006, this Court issued an Order directing plaintiff to show cause why this action should not be dismissed pursuant to Fed. R. Civ. P. 4(m) ("Rule 4(m)") for failure to serve defendants within 120 days after filing the complaint. In response to this Order, plaintiff's counsel has submitted an affidavit conceding that service was not effected within 120 days because neither the United States Attorney nor the Attorney General was ever served. Affidavit in Opposition to Dismissal of Action Pursuant to Fed. R. Civ. P. 4(m) ("Aff.") at ¶ 10. However, plaintiff's counsel argues (1) that there was "good cause" for the failure to serve, (2) that, even in the absence of "good cause," dismissal under Rule 4(m) is not mandatory, and (3) that this Court should exercise its discretion to extend the time for service. In support of the third argument, plaintiff's counsel argues that the applicable statute of limitations, 28 U.S.C. § 2401(b), would prevent plaintiff from refiling this action, and that defendants have actual notice of his lawsuit because he served a copy of the summons and complaint on the General Counsel to the Secret Service.
Plaintiff Has Not Shown "Good Cause"
Rule 4(m) provides that if a plaintiff shows "good cause" for the failure to serve the summons and complaint upon a defendant within 120 days after the filing of the complaint, the Court "shall extend the time for service for an appropriate period." However, "[a] party seeking a good cause extension bears a heavy burden of proof." Alvarado v. American Freightways, Inc., No. 04 Civ. 9536 (JCF), 2005 WL 1467893, at *5 (S.D.N.Y. June 21, 2005) (citing Geller v. Newell, 602 F.Supp. 501, 502 (S.D.N.Y. 1984)). "Good cause is 'generally found only in exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond its control.'" Eastern Refractories Co., Inc. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.N.Y. 1999) (quoting Nat'l Union Fire Ins. Co. v. Sun, No. 93 Civ. 7170 (LAP), 1994 WL 463009, at *3 (S.D.N.Y. Aug. 25, 1994)). Therefore, "[a]n attorney's inadvertence, neglect, mistake or misplaced reliance does not constitute good cause." Id. (quoting Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp. 654, 658 (S.D.N.Y. 1997), aff'd, 173 F.3d 844 (2d Cir. 1999)).
In arguing that there was "good cause" for the failure to serve defendants in this case, plaintiff's counsel alleges "misplaced reliance." Specifically, plaintiff's counsel claims that his office, having little experience with federal litigation, "detrimentally relied upon the office of Elite Process Servers to properly effectuate service." Aff. at ¶ 12. However, as plaintiff's counsel tacitly acknowledges, it is "trial counsel's responsibility to monitor the activity of the process server and to take reasonable steps to assure that a defendant is timely served." McKibben v. Credit Lyonnais, No. 98 Civ. 3358 (LAP), 1999 WL 604883, at *4 (S.D.N.Y. Aug. 10, 1999) (quoting Cox v. Sandia Corp., 941 F.2d 1124, 1125 (10th Cir. 1991)). Accordingly, plaintiff has not established good cause for the failure to timely serve defendants.
Dismissal is not Mandatory
There appears to be a conflict of authority in this Circuit as to whether Rule 4(m) mandates dismissal without prejudice where a plaintiff has failed to serve a defendant within 120 days of filing the complaint and cannot show "good cause" for that failure. According to some district courts in this Circuit, "there is virtual unanimity that dismissal is mandatory if a defendant is not served within 120 days, unless the plaintiff can show good cause for delay." Howard, 977 F.Supp. at 658 (quoting Nat'l Union Fire Ins, 1994 WL 463009, at *2); see also Virgona v. Tufekian Import-Export Ventures, Inc., No. 03 Civ. 10237 (KNF), 2005 WL 324364, at *1 (S.D.N.Y. Feb. 9, 2005) (quoting McKibben, 1999 WL 604883, at *2). However, several well-respected jurists in this Circuit have expressly held to the contrary. See, e.g., Carroll v. Certified Moving & Storage Co., LLC, No. 04-CV-4446 (ARR), 2005 WL 1711184 , at *2 (E.D.N.Y. July 19, 2005) ("dismissal is not mandatory in the absence of good cause"); Alvarado, 2005 WL 1467893, at *5 (contention that dismissal is mandatory in the absence of good cause is incorrect); ATSI Communications, Inc. v, Shaar Fund, Ltd., 222 F.R.D. 79, 80 (S.D.N.Y. 2004) ("district courts in appropriate circumstances may grant relief under [Rule 4(m)] notwithstanding the lack of good cause").
The latter view is correct. Although proponents of the former position may be right in claiming that their view is held by a majority of district courts in this Circuit, their position is based on cases decided before the 1993 amendments to the Federal Rules of Civil Procedure. Prior to 1993, the 120-day rule was contained in Rule 4(j), which stated:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.
Faced with this unequivocal language, the Second Circuit repeatedly held that "[d]ismissal of an action is mandatory under Rule 4(j) when the 120 day limit is violated unless 'good cause' can be shown." Zankel v. United States, 921 F.2d 432, 436 (2d Cir. 1990) (quoting Yosef v. Passamaquoddy Tribe, 876 F.2d 283, 287 (2d Cir. 1989), cert. denied, 494 U.S. 1028 (1990)); see also Mentor Ins. Co. (U.K.) Ltd. v. Brannkasse, 996 F.2d 506, 512 (2d Cir. 1993); Frasca v. United States, 921 F.2d 450, 453 (2d Cir. 1990). After all, as the Frasca Court noted, "Rule 4(j) . . . expressly provide[d] an exception only on plaintiff's showing of good cause." Id., 921 F.2d at 453 (emphasis added).
However, the Federal Rules of Civil Procedure were amended in 1993 by, inter alia, adopting a new Rule 4(m) and deleting the above-quoted language from Rule 4(j).*fn1 The Advisory Committee Notes to Rule 4(m) state:
The new subdivision explicitly provides that the court shall allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed 120 days, and authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.
28 U.S.C.App. 654 (emphasis added). Quoting these Advisory Committee Notes, the Supreme Court held that the 1993 amendments accorded district courts "discretion to enlarge the 120-day period 'even if there is no good cause shown.'" Henderson v. United States, 517 U.S. 654, 662 (1996). In light of Henderson, the view that dismissal under Rule 4(m) is mandatory unless a plaintiff can demonstrate "good cause" -- even if it still remains the majority view in this Circuit -- is no longer valid.
Extending the Time for Service
This Court, therefore, has discretion to extend the deadline for effecting service. The factors to be considered in deciding whether to grant this relief are : "(1) whether the applicable statute of limitations would bar the refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiff's request for relief from the provision." Carroll, 2005 WL 1711184 , at *2 (quoting Eastern Refractories, 187 F.R.D. at 506).
With respect to the first factor, "[c]courts have consistently considered the fact that the statute of limitations has run on a plaintiff's claim as a factor favoring the plaintiff in a Rule 4(m) analysis." Id., 2005 WL 1711184 , at *2 (quoting AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 F.R.D. 104, 109 (S.D.N.Y. 2000)). Indeed, this factor alone may be sufficient to justify extending the time for service. See Advisory Committee Notes to Rule 4(m) ("Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action . . . .").
In this case, plaintiff's counsel asserts that a refiled action would be time-barred under 28 U.S.C. § 2401(b). This section provides:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
"Although phrased in the disjunctive, this statute requires a claimant to file an administrative claim within two years [of accrual] and file suit within six months of its denial." Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001) (brackets and emphasis in original; internal quotations omitted), cert. denied, 536 U.S. 960 (2002); see Willis v. United States, 719 F.2d 608, 612 (2d Cir. 1983).
Plaintiff's complaint alleges that the Secret Service has "issued a final denial." Complaint at ¶ 20. Although the complaint does not allege when this final denial was mailed, it clearly was received sometime before the complaint was signed on June 6, 2005. Therefore, a refiled action in this case would be untimely because more than six months have passed since the final denial was mailed. See 28 U.S.C. § 2401(b). Since the statute of limitations has run, the first factor favors granting plaintiff relief. See Carroll, 2005 WL 1711184 , at *2.
The second factor also militates in favor of granting relief, since the record suggests that the only non-Doe defendant has already received actual notice of the claims asserted in the complaint. In his affidavit, plaintiff's counsel states that his office "served a copy of the Summons and Verified Complaint [by] regular mail and certified mail, return receipt requested" upon both defendant United States Secret Service and its General Counsel on July 28, 2005. Aff. at ¶ 6. Moreover, counsel states that neither mailing was returned to his office "as unclaimed or undeliverable." Id. at ¶ 7. Although plaintiff's counsel does not attach copies of the return receipts to his affidavit, this Court nonetheless concludes that the Secret Service has likely received actual notice of the claims asserted in the complaint.
The third factor is inapplicable because defendants have yet to be served in this case. However, the fourth factor also militates in favor of granting plaintiff relief. There is nothing to suggest that defendant will be prejudiced if plaintiff is granted an extension of time to file. Even if this Court permits a generous extension of the time to serve defendant, defendants will still be served with the summons and complaint in this action less than two years after the accident. This Court does not perceive how permitting plaintiff to serve within the two-year statute of limitations could prejudice defendants, especially since plaintiff allegedly filed his Notice of Claim on September 3, 2004 -- less than two months after the accident at issue -- and the Secret Service has presumably already investigated the allegations contained in this Notice of Claim.
Since all three factors militate in favor of granting plaintiff relief under Rule 4(m), this Court, in the exercise of its discretion, hereby extends the time for effecting service upon defendants and directs that service be made on or before April 14, 2006. Plaintiff is cautioned that if he fails to effect service on or before that date, his complaint will be dismissed without prejudice and that, for the reasons set forth in this Memorandum and Order, such dismissal will result in this action being time-barred.
SANDRA L. TOWNES United States District Judge
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Express check-in, express check-out, and tour/ticket assistance are available at this apartment. Free WiFi in public areas and free self parking are also provided. Other amenities include a convenience store and a garden.
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All 9 apartments feature kitchens with refrigerators and microwaves, plus free WiFi and flat-screen TVs with DVD players.Information missing or incorrect? Tell us!Opens in a new window
Debbie's Place
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Hotel Amenities
Debbie's Place features tour/ticket assistance, a garden, and a grocery/convenience store. High-speed wireless Internet access is complimentary. This Victorian apartment also offers express check-in and express check-out. Onsite self parking is complimentary. The property may provide extended parking privileges to guests after check-out (surcharge).
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Check-in time starts at 2 PM
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We should mention
Only registered guests are allowed in the guestrooms.


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