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Century 21 v. Hometown Realtors

January 10, 2012

CENTURY 21
v.
HOMETOWN REALTORS, HOMETOWN REAL ESTATE, AND NICOLETTE MAYER



Name of Assigned Judge Blanche M. Manning Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

On defendants Hometown Realtors, LLC, Hometown Real Estate Group, LLC, and Nicolette Mayer's motion to vacate default judgment [30-1], the court shall hold an evidentiary hearing on February 24, 2012, at 11:30 a.m., in order to determine the validity of service that allegedly occurred on September 1, 2011. If, however, Century 21 re-serves those defendants before the start of the hearing, it shall notify the court's minute clerk and file copies of the returns of service. Status hearing set to 1/12/2011 is stricken.

O [ For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff Century 21 Real Estate LLC filed suit seeking damages and an injunction to stop defendants Alexander Sarovich, Nicolette Mayer, Hometown Realtors, LLC, and Hometown Real Estate Group, LLC, from allegedly continuing to use Century 21's trademarks and service marks after termination of the parties' franchise agreement. Century 21 filed returned certificates of service for all of the defendants, indicating that each had been served. Specifically, according to the Affidavit of Process Server, Mayer was personally served with the summons directed at her individually, as well as with the summonses for Hometown Realtors and Hometown Real Estate Group, of which she was both a principal and the registered agent. According to the affidavit, service occurred on September 1, 2011, at 11:50 a.m. at 7700 W. Belmont in Chicago, which is Mayer's office.

None of the defendants filed an appearance or an answer when due. As a result, Century 21 filed a motion for default judgment, which it noticed for presentment on October 11, 2011. Defendant Sarovich appeared pro se at the hearing on the motion for default judgment, but defendants Nicolette Mayer, Hometown Realtors, and Hometown Real Estate Group did not appear. Accordingly, the court gave Sarovich time to file an answer, and granted Century 21's motion for default judgment against Mayer, Hometown Realtors, and Hometown Real Estate Group.

On October 24, 2011, Mayer, Hometown Realtors, and Hometown Real Estate Group filed a motion to vacate the default judgment under Federal Rules of Civil Procedure 55(c) and 60(b). They offer two arguments in support of their motion. First, they contend that they were never properly served with process and, therefore, the default judgment is void under Rule 60(b)(4). Alternatively, they contend that the default judgment should be aside under Rule 60(b)(1) because they can establish excusable neglect.

Service Of Process

First, the defendants contend that the default judgment is void because they were never served with summons and complaint as required under Federal Rule of Civil Procedure 4(c). In support, they offer two affidavits from defendant Nicolette Mayer, who is also the managing broker and registered agent of Hometown Real Estate Group, and registered agent and former managing broker of Hometown Realty (now defunct). In her first affidavit, Mayer states that "[t]o date I have yet to be personally served with a summons or complaint for this action in any capacity." Affidavit of Nicolette Mayer (attached as Exhibit A to Motion to Vacate [30-1]) ¶ 5.

In a supplemental affidavit, Mayer states that there "is no way I could have been personally served" at 11:50 a.m. on September 1, 2011, because she was out of her office at the time. Specifically, she states that she was out of her office that day from 9:30 a.m. to at least 1:30 p.m. in order to take pictures of several properties, and to attend a closing for one of her agents in Hickory Hills, Illinois. In support, she attached to her affidavit a Settlement Statement that she says she received during the closing in Hickory Hills. The Settlement Statement is time stamped "09/01/11 11:48."

"A signed return of service constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence." Relational, LLC v. Hodges, 627 F.3d 668, 672 (7th Cir. 2010). "To make a prima facie showing, the movant must simply produce a return of service identifying the recipient and noting when and where service occurred, thereby providing enough detail so the opposing party knows what evidence he must rebut." Id. The returns of service Century 21 filed identify Nicolette Mayer as the recipient, 7700 W. Belmont in Chicago as where service occurred, and 11:50 a.m. on September 1, 2011, as when service occurred. Accordingly, Century 21 has made a prima facie showing of valid service.

Upon making a prima facie showing, the burden shifts to the defendants to rebut the presumption of valid service with strong and convincing evidence. Id. at 673. An affidavit in which the defendant merely states that she was not served does not meet the strong and convincing standard. See Bilal v. Rotec Indus., Inc., No. 03 CV 9220, 2004 WL 1794918, at *3 (N.D. Ill. Aug. 5, 2004) ("Oury's sole contention is that he never received a copy of the summons that appears on the docket. Such an allegation, even if it were contained in an affidavit (which it is not), is insufficient to counter the 'strong and convincing evidence' presented by the signed return of service Bilal filed with this court."). However, Mayer has offered more. In her supplemental affidavit, she contradicts the process server's affidavit that she was served at 11:50 a.m. on September 1, 2001, and asserts that, in fact, she was out of her office from at least 9:30 a.m. to 1:30 p.m. In addition, she provides a document she contends she received in Hickory Hills stamped with the same date and time as the process server claims he served Mayer in Chicago.

Because the determination of whether Mayer was physically present when the process server contends personal service occurred turns on disputed questions of fact, the court cannot at this time determine whether she has rebutted Century 21's prima facie showing of valid service. Accordingly, an evidentiary ...


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