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Sheet Metal Workers International Association Local Union No. 1 v. Senica Cooling & Heating LLC

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS, PEORIA DIVISION


June 2, 2010

SHEET METAL WORKERS INTERNATIONAL ASSOCIATION LOCAL UNION NO. 1, PLAINTIFF,
v.
SENICA COOLING & HEATING LLC, SENICA HEATING & AIR CONDITIONING, INC., AND DARYL R. SENICA, DEFENDANTS.

The opinion of the court was delivered by: U.S. Magistrate Judge Byron G. Cudmore

REPORT AND RECOMMENDATION

Before the Court is Plaintiff's Motion for Default (d/e 4) filed April 7, 2010. The Court is proceeding with a Report and Recommendation as Plaintiff's Motion (d/e 4) requests not only default, but also judgment in a sum certain and is therefore dispositive in nature.

On February 18, 2010, Plaintiff filed its Complaint (d/e 1) and summons were issued on all three Defendants. Plaintiff's Complaint, at paragraph 4, states: "Senica Cooling & Heating, LLC is a successor employer to Senica Heating & Air Conditioning, Inc. Daryl R. Senica is the individual who manages and controls the affairs of both Senica Heating & Air Conditioning, Inc. and Senica Cooling & Heating, LLC".

The receipts filed as "Summons Returned Executed" (d/e 3) indicate that all three summons were personally served upon "Elizabeth Senica / agent / wife" on February 22, 2010, creating an answer due deadline of March 15, 2010. Plaintiff's motion requests the Court grant default judgment because none of the Defendants have filed a timely pleading.

Defendant Daryl R. Senica

Although Elizabeth Senica may be the wife of Defendant Daryl R. Senica, she is not a defendant herein. Rule 4(e)(2), Federal Rules of Civil Procedure, provides that service upon an individual may be accomplished by:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

There is no indication that Elizabeth Senica was served at Defendant Daryl R. Senica's "usual place of abode". In fact, the address listed on the summons for Defendant Senica is LaSalle, Illinois, and the receipts indicate that Elizabeth Senica was served in Utica, Illinois. There is no evidence provided that Elizabeth Senica is "an agent authorized by appointment or by law" to receive process for Defendant Daryl R. Senica.

Defendants Senica Cooling & Heating LLC, Senica Heating & Air Conditioning, Inc.

Rule 4(h)(1)(B), Federal Rules of Civil Procedure, provides that service upon a corporation may be accomplished by "delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and - if the agent is one authorized by statute and the statue so requires - by also mailing a copy of each to the defendant".

There is no indication made in the Complaint, or on either summons issued (d/e 2) or receipts of service (d/e 3) that Elizabeth Senica is an officer or agent of either Defendant Senica Cooling & Heating, LLC or Defendant Senica Heating & Air Conditioning, Inc.

For the above reasons, service has not been perfected upon Defendants herein and default is not proper.

UNDER THESE FACTS, IT IS RESPECTFULLY RECOMMENDED that Plaintiff's Motion for Default Judgment (d/e 4)be DENIED and that Plaintiff be allowed relief from the 120-day deadline of Rule 4(m) and be granted an extension of time in which to properly serve Defendants.

The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within fourteen days after ECF service of this Report and Recommendation. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). Failure to object will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538 (7th Cir. 1986). See also Local Rule 72.2. ENTERED this 2nd day of June, 2010.

BYRON G. CUDMORE UNITED STATES MAGISTRATE JUDGE

20100602

© 1992-2010 VersusLaw Inc.



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