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JOHNSON v. BURKEN

September 13, 1989

DONALD J. JOHNSON, Plaintiff,
v.
PATRICK H. BURKEN, Defendant


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Defendant Patrick H. Burken has moved to dismiss, under Rule 12(b)(5), for the insufficiency of service of process. For the reasons set forth below, that motion is denied.

 Background

 On August 29, 1986, defendant Burken and plaintiff Donald Johnson were involved in an automobile accident while both were driving on Green Bay Road in Waukegan, Illinois. Johnson blamed Burken for this accident, and consequently, in May 1988, he brought this suit against Burken in the Circuit Court for the Nineteenth Judicial Circuit, Lake County, Illinois. In September of the same year, Johnson purported to serve Burken, pursuant to Illinois' non-resident motorist statute, Ill.Rev.Stat. ch. 95-1/2, para. 10-301(b). *fn1" Johnson served a summons on Secretary of State Jim Edgar on September 8. Within ten days thereafter, on September 15, Johnson mailed a copy of the summons and complaint to Burken at his last known address. Subsequently, Johnson filed an affidavit of compliance with the Clerk of the Circuit Court.

 Burken's insurance company retained counsel on Burken's behalf, and counsel entered a limited appearance in state court. Counsel subsequently moved to quash service as insufficient, but on January 31, 1989, Judge Jack Hoogasian, to whom the case was assigned, denied the motion to quash. On February 9, Judge Hoogasian also denied Burken's motion to vacate and reconsider. On February 27, Burken removed the case to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. Our jurisdiction is premised on the diversity of citizenship between Johnson, a citizen of Illinois, and Burken, a citizen of Iowa.

 Soon after removing the case to this Court, Burken filed his first motion to dismiss, making the same arguments that he had made before Judge Hoogasian in state court: first, that service was improper because Johnson had sent the required copies of the summons and complaint by certified rather than registered mail, and second, that Johnson's affidavit of compliance failed to establish that Burken was actually a non-resident of Illinois and thus failed to establish that the non-resident motorist statute applied. (Curiously, Burken made this second argument even though his notice of removal admitted that he was a resident of Iowa.) Johnson responded that Burken was collaterally estopped to make either argument, since Judge Hoogasian had already rejected them. Johnson also informed us, however, that he had again attempted service on Burken, who was at this time stationed in Norfolk, Virginia. It was our understanding that Burken did not dispute that Johnson's second attempt at service was proper. Accordingly, on May 30, we denied Burken's first motion to dismiss as moot.

 As it turned out, our understanding was incorrect, for on June 8, Burken filed his second motion to dismiss. This time he contended that Johnson's second attempt at service was improper because it did not comport with the requirements of the Illinois Long-Arm Statute. Johnson again responded by arguing that his original attempt at service was sufficient, and that the validity of the second attempt at service need not be considered. We agree with Johnson that the arguments raised in the second motion to dismiss need not be considered. As we describe in more detail below, Judge Hoogasian's decision is now the law of the case, and we are unwilling to disturb it.

 Analysis

 The Seventh Circuit has held that "in determining the validity of service prior to removal, a federal court must apply the law of the state under which the service was made, and the question of amenability to suit in diversity actions continues to be governed by state law even after removal." Allen v. Ferguson, 791 F.2d 611, 616 n.8 (7th Cir. 1986); see also 4A C. Wright & A. Miller, Federal Practice and Procedure § 1082, at 5-6 (2d ed. 1987). Applying Illinois law, Judge Hoogasian concluded that service was sufficient. This decision clearly is not binding on us; "being interlocutory, [the state court's decision is] subject to reconsideration, and [continues] to be so up to the passing of a final decree." General Investment Co. v. Lake Shore & Michigan Southern Railway Co., 260 U.S. 261, 267, 43 S. Ct. 106, 110, 67 L. Ed. 244 (1922); see also Daniels v. McKay Machine Co., 607 F.2d 771, 774 (7th Cir. 1979). Still, the Seventh Circuit and a leading treatise indicate that a federal court may invoke the law of the case doctrine to follow decisions issued by a state court prior to removal. See PaineWebber Inc. v. Farnam, 870 F.2d 1286, 1291 (7th Cir. 1989); Redfield v. Continental Casualty Co., 818 F.2d 596, 605 (7th Cir. 1987); 18 C. Wright, A. Miller & F. Cooper, Federal Practice and Procedure § 4478 at 797-98 (1981). *fn2"

 At its most basic, the law of the case doctrine "provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case." Redfield, 818 F.2d. at 605. "In order for a ruling to constitute the law of the case, the question of law presented in the current action must have been actually decided in the former proceeding." PaineWebber, 870 F.2d at 1291. An issue may be "actually decided" even if the original court did not make an express ruling, if the latter court "can determine that the issue in question was decided by necessary implication." Id. The Seventh Circuit has emphasized that the law of the case is a discretionary doctrine, and will not be enforced where it is clearly erroneous or where doing so would produce an injustice. Redfield, 818 F.2d at 605.

 Applying these general principles to this case, we conclude that Judge Hoogasian decided, by necessary implication, the legal issues raised by Burken's first motion to dismiss in this Court. To be sure, Judge Hoogasian's handwritten orders do not specify the grounds for his decision; indeed, both orders might be summarized simply as "motion denied." However, both in this Court and in state court, Burken has presented two legal issues: whether certified mail is sufficient under section 10-301 and whether Johnson's affidavit of compliance established that the non-resident motorist statute applied. Because Judge Hoogasian found that service was proper, he necessarily, though not explicitly, rejected Burken's position on both points.

 Nor can we say that either decision was clearly erroneous or produced an injustice. First, with regard to the propriety of certified mail under section 10-301, we note that at least one Illinois appellate court has held that certified mail will suffice under a statute calling for registered mail. Olin Corp. v. Bowling, 95 Ill.App.3d 1113, 420 N.E.2d 1047, 51 Ill. Dec. 489 (5th Cir. 1981). Certainly, the facts of Bowling may be distinguished -- in that case, it was necessary to send notices to 3801 people -- but the decision indicates that Illinois courts do not always strictly adhere to the requirement of registered mail. Moreover, we note that commentary to the Illinois practice rules states that "certified mail is the functional equivalent of registered mail for court purposes." Ill.Ann.Stat. ch. 110A, para. 105 Historical and Practice Notes at 146 (West 1985) (authored by A. Jenner, P. Tone & A. Martin). To be sure, there are strong arguments to the contrary, which Burken's counsel has ably made. Perhaps if this were before us as an original matter, we might decide it differently, but we cannot say that Judge ...


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