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Fifth Third Bank v. Malone

January 20, 2010


The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.


Before the Court are Plaintiff's motion to approve alternative service pursuant to Federal Rule of Civil Procedure 4(e)(1) [8] and Plaintiff's supplement to that motion [11]. For the reasons stated below, the motion [8] is granted.

I. Background

On October 19, 2009, Plaintiff filed this action against Defendants Donna Malone and Mark Anstett. As set forth in the materials attached to their motion, including the affidavit of their process server, Plaintiff has made several attempts to serve the summons and complaint on Ms. Malone. First, Plaintiff attempted to effectuate service at Malone's residences in Arlington Heights and Chicago. Those attempts failed, although the process server avers that on one occasion while he was on the phone with Malone's neighbor he heard Malone answer her door and refuse to come down to open the apartment building door for the process server. [See 8.] Plaintiff also attempted to obtain a waiver of service from Ms. Malone to no avail. [See 11.] On the basis of the foregoing, Plaintiff concludes that Malone is evading service and requests that the Court approve an alternative method of service.

II. Analysis

As the Seventh Circuit has noted, "[a] district court may not exercise personal jurisdiction over a defendant unless the defendant has been properly served with process." United States v. Ligas, 549 F.3d 497, 500 (7th Cir. 2008). The Court further reminded district courts that "the service requirement is not satisfied merely because the defendant is aware that he has been named in a lawsuit or has received a copy of the summons and the complaint." Id.; see also Equity Residential Properties Mgmt. Corp. v. Nasolo, 364 Ill. App. 3d 26, 35 (1st Dist. 2006) (holding that a defendant's actual knowledge that an action is pending or that service has been attempted is not the equivalent of service of summons and would not relieve the plaintiff of its burden or vest the court with jurisdiction). In other words, the formalities of service of process under Rule 4 must be observed.

The court of appeals stated that "the preferred approach" to service "is for the plaintiff to mail the defendant a copy of the complaint and summons and obtain a waiver of personal service from the defendant under Rule 4(d)." Ligas, 549 F.3d at 500-01. As noted above, Plaintiff has attempted to follow "the preferred approach," but was not successful in obtaining a waiver. Where, as here, "the defendant does not waive service and no federal statute otherwise supplies a method for service process, then Rule 4(e)'s list of methods is exclusive." Id. at 501. Those approved methods include personal service, leaving a copy of the summons and complaint at the defendant's "usual place of abode" with a person of suitable age who resides there, delivering a copy of the complaint and summons to an agent authorized to accept service, or "any other manner of serving process permitted by the law of the state where the district court sits." Id.

Here, having exhausted other methods of service, Plaintiff has invoked Federal Rule of Civil Procedure 4(e)(1) to request an order permitting service by an alternative method. Rule 4(e)(1) provides that service of a summons and complaint may be effected "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." See Swaim v. Moltan Co., 73 F.3d 711, 719 (7th Cir. 1996) (explaining that in the absence of rules for service of process set forth in the statute giving rise to the cause of action, "service of process is governed by the law of the state in which the district court is located").

Like federal law, the Illinois Code of Civil Procedure generally permits service on an individual "(1) by leaving a copy of the summons with the defendant personally, [or] (2) by leaving a copy at the defendant's usual place of abode, with some person of the family or person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode." 735 ILCS 5/2-203(a). However, if service is "impractical" under the methods set forth in Section 2-203(a), a plaintiff "may move, without notice, that the Court enter an order directing a comparable method of service." 735 ILCS 5/2-203.1. A motion to approve service under Section 5/2-203.1 "shall be accompanied with an affidavit stating the nature and extent of the investigation made to determine the whereabouts of the defendant and the reasons why service is impractical * * *, including a specific statement showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful." In re Schmitt, 321 Ill. App. 3d 360, 367 (2d Dist. 2001). If the moving party has satisfactorily made the required showing of "diligent inquiry" by affidavit, "[t]he court may order service to be made in any manner consistent with due process." Id. at 367-68.

The language of Section 2-203.1 contemplates the entry of the order "directing a comparable method of service" in advance of the actual service of the summons and complaint. In view of the adequate showing of "diligent inquiry" by Plaintiff and its unsuccessful efforts to serve Ms. Malone notwithstanding a thorough "investigation made to determine the whereabouts of the defendant" and explanation of "the reasons why service is impractical" under the usual rule, the Court finds that this may be an appropriate case for an order prospectively authorizing alternative service under 735 ILCS 5/2-203.1.

As the Court previously has explained (see Hotel Employees & Restaurant Employees Int'l Union Welfare Fund v. Printer's Row, LCC, 2008 WL 5142187, at *3 (N.D. Ill. Dec. 5, 2008)), at least two of the small handful of published Illinois decisions applying Section 2-203.1 suggest a "comparable method of service" that is readily available to Plaintiffs here and comports with due process where, as here, there is good reason to believe that the defendant is consciously and actively trying to evade service. In one of those cases, In re Marriage of Schmitt, 321 Ill. App. 3d 360 (2d Dist. 2001), the petitioner in a marriage dissolution case contended that the respondent was attempting to evade service of process and sought relief under Section 2-203.1 when the customary methods of effecting service had proven unsuccessful. The trial court issued an order authorizing service by leaving a copy of summons and petition with any two of five individuals or entities, including the respondent's mother, an employee of a corporation that the respondent controlled, and two attorneys who previously had represented the respondent.

After the petitioner served the employee and the attorneys and the case proceeded to judgment on the merits, the respondent appealed, arguing (among other things) that the trial court lacked jurisdiction because service was never properly made. In re Marriage of Schmitt, 321 Ill.

App. 3d at 366-67. The appellate court rejected the respondent's objection to service. Id. at 370; see also Schmitt v. Schmitt, 2002 WL 109359, at *1 (N.D. Ill. Jan. 28, 2002) (noting that the trial court approved service of process on respondent's employee and former lawyers and that "the appellate court held that the method of service of process employed in this case was constitutionally permissible"). In so doing, the court at least tacitly endorsed the trial court's decision to permit service on an attorney where service on the attorney's client through the standard methods had proven impossible or impractical. To be sure, in view of the legal proposition that "an attorney's authority to act for a client terminates when the matter for which he has been retained ends" and the fact that both attorneys who were served under Section 2-203.1 submitted affidavits stating that they no longer represented or had any contact with the respondent, the appellate court hinted (though it did not actually decide) that service on the attorneys may not have been appropriate in that case. In re Marriage of Schmitt, 321 Ill. App. 3d at 370. But the court's discussion clearly leaves open the possibility of lawfully effectuating service on an attorney who currently represents the evasive defendant (or respondent): "[e]ven assuming that service was insufficient on the two attorneys because they no longer represented respondent or his business, respondent presents no valid reason why service on [his employee] was not valid." Id. (emphasis added). The appellate court then concluded that given ...

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