United States District Court, N.D. Illinois, Eastern Division
Charles P. Kocoras United States District Judge.
before the Court are three motions to dismiss Plaintiff
Joseph Sneed's (“Sneed”) complaint: (i)
pursuant to Federal Rules of Civil Procedure 12(b)(5) and (6)
by Defendant Paul Wersant (“Wersant”); (ii)
pursuant to Federal Rule of Civil Procedure 12(b)(6) by
Sequoia Financial Solutions, Inc. (“Sequoia”);
and (iii) pursuant to Federal Rule of Civil Procedure
12(b)(6) by Defendant Kent Sederman (“Sederman”).
For the following reasons, the Court grants in part and
denies in part Defendants' motions.
purposes of the instant motions, the following well-pleaded
allegations derived from Sneed's complaint are accepted
as true. The Court draws all reasonable inferences in favor
of Sneed. See Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008).
by and through its attorney, Wersant, filed a foreclosure
action against Sneed. See Sequoia Financial Solutions,
Inc. v. Joseph Sneed, et al, Case No. 14-cv-6688.
Sequoia and Wersant thereafter hired Winston Honore Holdings,
LLC d/b/a Accurate Serve (“Winston”) and Sederman
to serve process on Sneed. According to Sneed's
complaint, on “or around September 12, 2014, Sederman
and Winston, via Wersant, executed and filed with the Court a
false Return of Service (‘the Return').”
Return, Sederman and Wersant falsely claimed that Sederman
executed substitute service on Sneed by serving his mother
Annie Sneed at the home that they both share. However, Sneed
asserts that no member of his family was served by
Defendants. Sneed also alleges that other “false
returns were filed thereafter in an attempt to amend defects
in the original Return.” This Court entered a default
judgment against Sneed in the foreclosure matter on January
further alleges that Defendants “conspired to deprive
[him] of equal protection of the law, namely to deprive [him]
of [his] due process right to proper notice of the
lawsuit.” Sneed claims that he did not learn about the
foreclosure action against him until February 27, 2015 when
he received a “postcard advertisement . . . from a
private attorney informing him that his home was scheduled to
be sold on March 13, 2015.” Thereafter, Sneed hired an
attorney in March 2015. Sneed alleges that it was not until
after he consulted with his attorney that he became aware
that “Defendants had executed and filed the Return
[indicating] Annie Sneed [was] served on September 12, 2014,
and that a default had been entered.” On March 29,
2015, Sneed's counsel filed a motion to quash service in
the foreclosure matter. We granted the motion to quash on
October 6, 2015. In bringing the current action, Sneed
alleges that “Defendants made false sworn written
statements, and filed and presented said statements in court
to induce [Sneed] to believe that service had been effected,
and that personal jurisdiction had been obtained over
[Sneed]-all in order to attempt to enforce and collect an
alleged consumer debt from [Sneed].” Accordingly, Sneed
brings this suit alleging a violation of the Fair Debt
Collection Practices Act (the “FDCPA”) against
all Defendants (Count I); abuse of process claims against all
Defendants (Count II); and violations of the Illinois
Consumer Fraud Act (“ICFA”) against Sequoia,
Winston, and Sederman (Count III).
STANDARDS A. Motion to Dismiss Pursuant to Fed.R.Civ.P.
4(e) allows service to be made in one of three ways. First, a
defendant can be personally given a copy of the complaint and
summons. Fed.R.Civ.P. 4(e)(2); 735 ILCS 5/2-203(a)(1).
Second, copies can be left at the defendant's abode with
a person of suitable age and discretion. Fed.R.Civ.P.
4(e)(2). Third, if the defendant has an agent who is
authorized by the defendant or by operation of law to receive
service of process on the defendant's behalf, the
complaint and summons can be personally given to that agent.
Id. An agency of this kind does not typically arise
through implication and is “intended to cover the
situation where an individual actually appoints an agent for
that purpose.” Schultz v. Schultz, 436 F.2d
635, 637 (7th Cir. 1971). When a defendant challenges the
sufficiency of service, the burden is on the plaintiff to
affirmatively demonstrate that service was proper.
Robinson Engr. Co. v. Pension Plan & Trust, 223
F.3d 445, 453 (7th Cir. 2000).
Motion to Dismiss Pursuant to Fed. R. Civ. Proc.
considering a 12(b)(6) motion to dismiss, a court evaluates
the legal sufficiency of a plaintiff's complaint, not its
merits. Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). To survive a motion to dismiss, a
plaintiff need only provide a “short and plain
statement” under Rule 8(a)(2); the particulars of the
claim are not required. Midwest Gas Servs. v. Ind. Gas.
Co., 317 F.3d 703, 710 (7th Cir. 2002). Nonetheless, to
withstand a motion to dismiss, a complaint must allege facts
that set forth the essential elements of the cause of action.
Doherty v. City of Chi, 75 F.3d 318, 326 (7th Cir.
Wersant's 12(b)(5) Motion
first consider whether Wersant was properly served. Sneed
claims that he served Wersant by delivering the complaint and
summons to Michelle Stimmel (“Stimmel”), a
receptionist in Wersant's office. Wersant argues that
Stimmel is not an “agent authorized to accept
service.” Since Wersant has challenged the sufficiency
of service, the ...