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

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION


June 25, 2010

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

The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

ORDER & OPINION

This matter is before the Court on Plaintiff's Motion for Default (Doc. 4), which also requests default judgment against Defendants, and Magistrate Judge Cudmore's Report & Recommendation ("R&R") (Doc. 6) recommending that the Motion for Default be denied and that Plaintiff be allowed an extension of time in which to serve Defendants. For the reasons stated below, the R&R is adopted, the Motion for Default is denied, and Plaintiffs are allowed an additional 28 days in which to perfect service on Defendants.

In his R&R, Magistrate Judge Cudmore found that none of the Defendants had been properly served. As noted by Judge Cudmore, all three summons were personally served on Elizabeth Senica, whom Plaintiff stated was the "agent/wife" of Defendants. However, Judge Cudmore found no indication in the record that Ms. Senica is indeed an agent of any of the Defendants as required by Federal Rule of Civil Procedure 4(e)(2) and 4(h)(1)(B), and so service has not been perfected upon Defendants. As there had never been proper service, default and default judgment are therefore improper.*fn1

In the R&R, Magistrate Judge Cudmore warned the parties that any objection to it was due within fourteen days of service, and that failure to object would constitute a waiver of objections; no party has objected by the deadline of June 21, 2010. See 28 U.S.C. § 636(b)(1); see also Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). Indeed, on June 9, 2010, the clerk's office issued alias summons to Plaintiff for each of the Defendants, indicating that Plaintiff intends to attempt proper service. (Doc. 7). As there have been no objections, the Court hereby adopts the R&R.

IT IS THEREFORE ORDERED that Magistrate Judge Cudmore's Report & Recommendation (Doc. 6) is ADOPTED, Plaintiff's Motion for Default (Doc. 4) is DENIED, and Plaintiffs are ALLOWED an additional 28 days in which to perfect service on Defendants.

Entered this 24th day of June, 2010.


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