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Peter Manjarrez v. Georgia-Pacific LLC and

September 12, 2012

PETER MANJARREZ, PLAINTIFF,
v.
GEORGIA-PACIFIC LLC AND ILLINOIS CENTRAL RAILROAD COMPANY,
DEFENDANTS,
GEORGIA-PACIFIC LLC, THIRD-PARTY PLAINTIFF,
v.
ITS TECHNOLOGIES & LOGISTICS, LLC; CANADIAN NATIONAL TRANSPORTATION LIMITED; AND CANADIAN NATIONAL RAILWAY COMPANY, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

Third-party defendant Canadian National Railway Company ("CNRC") moves to dismiss Georgia-Pacific LLC's ("GP") third-party complaint for insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). CNRC argues that the service was ineffective because the papers were left at the front desk of the building owned by its subsidiary company and not with a person authorized to receive service of process. For the reasons set forth below, the motion to dismiss is denied; however, the Court quashes service. GP has until October 6, 2012 to attempt to properly serve CNRC.

I. Background

On August 16, 2010, Peter Manjarrez, a truck driver for ITS Technologies & Logistics, was in an accident at Illinois Central Railway ("ICR")'s Harvey yard involving a truck carrying GP cargo. (GP's Opp'n CNRC's Mot. Dismiss, Dkt # 52, at 5.) The plaintiff sued GP and ICR, claiming that their alleged negligence caused his accident. (Id.) After initial discovery, GP determined that CNRC, ICR's parent company, was potentially liable to it for contribution, and filed a third-party complaint against it on June 8, 2012. (Third-Party Compl., Dkt # 32.) GP also sued CNRC for breach of its contractual obligations to indemnify GP in case of an accident and provide it with adequate liability insurance coverage. (GP's Opp'n CNRC's Mot. Dismiss, Dkt # 52, at 5.)

GP could not locate a registered agent authorized to accept service of process for CNRC in the United States. (Id.) In fact, CNRC does not maintain an agent for service of process in Illinois. (CNRC's Mot. Dismiss, Dkt # 50, at 6.) Thus, on June 22, 2012, GP sent a process server to a building owned by ICR, CNRC's indirect subsidiary, located in Homewood, Illinois, to serve summons and complaint upon James Vena ("Vena"), CNRC's Senior Vice President for the Southern Region, who occupies an office inside the building. (CNRC's Mot. Dismiss, Dkt # 50, at 2.) Upon arrival, the process server advised Sarah Johnson ("Johnson"), an ICR employee working at the front desk, that she had some papers to serve. (Id.) Johnson called ICR's legal department and Thomas Healey, one of ICR's in-house attorneys, came down to the reception area. (Id.) The process server advised Healey that she had copies of a summons and complaint that were directed to Vena. (Id.) Upon reviewing the papers, Healey advised the process server that he worked for ICR and that he was not authorized to accept service on behalf of CNRC. (Id.) The process server asked Healey if Vena had an office in the building. (Id.) Healey advised the process server that while Vena had an office in the building, he was not there at the time and Healey did not know when he would be returning. (Id. at 3.) When the process server asked Healey if he would accept service on Vena's behalf, Healey stated that he was not authorized to do so. (Id.) The process server then left the building, taking the papers with her. (Id.)

One to two hours after the process server left, she returned, again advising Johnson that she had papers to serve. (Id.) Johnson called ICR's legal department once again, and shortly thereafter, Linda Coyle, litigation counsel for ICR, came down to the reception area. (Id.) The process server advised Coyle that she was there to serve a summons and complaint. (Id.) Upon reviewing the complaint, Coyle advised the process server that she was employed by ICR and was not authorized to accept service of process on behalf of CNRC. (Id.). She further indicated that no one in the building was authorized to accept service of process on behalf of CNRC. (Id.)

Sometime after Coyle's conversation with the process server, the process server approached the front desk and once again asked Johnson if she could leave the papers with her. (Id. at 4.) Johnson advised the process server that she was not authorized to accept service of process under any circumstances. (Id.) Thereafter, the process server, without Johnson's consent, placed the papers on the front desk and left. (Id.) On the top of the papers was a post-it note directing the papers to Healey. (Id.)

The return of service executed and filed by GP states that the summons was left with Coyle and contains the following comments from the process server:

I spoke to Linda Coyle, in house attorney for Illinois Central, and she said that she could not accept the paperwork unless it was for Illinois Central. I advised her I was leaving the paperwork here as Jim Vena has an office here and left the paperwork at the receptionist's desk. (CNRC's Mot. Dismiss, Dkt # 50, Ex. 4.)

On July 9, 2012, the same process server arrived at the reception area of ICR headquarters for the third time and attempted to see Vena. (CNRC's Reply, Dkt # 54, at 2.) Johnson called the legal department and another ICR attorney, John Furlan, came down to the lobby and told the process server that he did not think Vena was in his office. (Id.) The process server then asked Furlan if Vena was out of town on vacation, and he told her that he did not know. (Id.) Furlan gave the process server his business card and told her that he would be happy to speak with whomever had hired her if that individual had any questions. (Id.). The process server then left the building, taking the papers with her. (Id.)

Healey, Coyle, Furlan and Johnson are ICR employees and have no direct employment or agency relationship with ICR's Canadian parent company, CNRC. (Id. at 5.) CNRC indirectly owns 100% of ICR's common stocks: it owns all the common stock of Grand Trunk Corporation, a Delaware corporation, which in turn owns all of the common stock of Illinois Central Corporation, which owns all of the common stock of ICR, an Illinois railroad. (Id.) ICR was acquired by CNRC in a 1999 merger. (GP's Opp'n CNRC's Mot. Dismiss, Dkt # 52, at 3-4.) According to CNRC's annual report, ICR's financial statements are consolidated with those of CNRC. (Id.)

II. Discussion

A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 4(h)(1), a domestic or ...


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