United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee, Judge
Rajan Sharma (“Plaintiff”) has sued Defendants
Big Limos MFG, LLC (“Big Limos”) and Michael
Walstrom (“Walstrom”), alleging breach of
contract. On March 29, 2017, the Court entered an order of
default as to Big Limos. Since that time, Plaintiff has moved
for entry of default as to Walstrom. In addition, Defendants
have now appeared and filed a motion asking the Court to
vacate the entry of default as to Big Limos, deny
Plaintiff's motion for entry of default as to Walstrom,
and grant Defendants leave to file an answer or responsive
pleading. For the reasons stated herein, Defendants'
motion  is denied. Plaintiff's motion for entry of
default as to Walstrom  is granted.
January 3, 2017, Plaintiff filed suit against Big Limos and
Walstrom, alleging that they breached an agreement to sell
Plaintiff a customized limousine for $125, 000. Compl.
¶¶ 14, 22-26, ECF No. 1. Big Limos is a limited
liability company with its principal place of business in
Lake Havasu City, Arizona. Id. ¶ 2.
Walstrom-who is Big Limos's founder, CEO, and registered
agent-resides in Huntington Beach, California. See
Id. ¶ 3.
January 6, 2017, Plaintiff, through a process server,
attempted to serve Defendants at Big Limos's registered
address in Lake Havasu City. Pl.'s 1st Mot. Default
¶ 2, ECF No. 10. When the process server arrived at the
address, however, he learned that it belonged to a grocery
store. Id. The grocery store's staff members
were unable to give any information as to whether Big Limos
or Walstrom could be found at the address. Id.
January 11, 2017, Plaintiff attempted to serve Walstrom at
his residential address in Huntington Beach. Pl.'s Mot.
Alt. Serv. ¶ 5, ECF No. 6. When Plaintiff's process
server arrived at the address, however, there were no
vehicles parked in the driveway, and no one answered the
door. Id. The process server reattempted service on
January 16, 2017. Id. ¶ 6. That day, there were
two cars parked in the driveway, but a locked gate made the
front door inaccessible. Id. Plaintiff attempted
service at the Huntington Beach address several more times
from January 19 to January 22, 2017, making six attempts in
total that month. Id. ¶¶ 7-10. No
individuals could be found at the address during any of these
attempts. Id. ¶ 11.
to serve Big Limos through Walstrom at the Huntington Beach
address, Plaintiff next attempted to serve Big Limos through
the Arizona Corporation Commission. See Pl.'s
1st Mot. Default ¶ 4. The Arizona Corporation Commission
successfully completed service on Big Limos on February 9,
2017. Id. In the meantime, at the Court's
direction, Plaintiff continued his efforts to serve Walstrom.
See Pl.'s 2d Mot. Default ¶¶ 6-7, ECF
No. 15. Plaintiff hired a private investigator named Peter
Dotson (“Investigator Dotson”) to
assist with these efforts. See id. ¶
7. Investigator Dotson confirmed that the Huntington Beach
address was Walstrom's most current home address.
Id. ¶ 8. Investigator Dotson also contacted
Rich McAndrews (“Investigator McAndrews”), a
local investigator in California. Id. ¶ 10.
Investigator McAndrews, too, confirmed that Walstrom was the
current owner of the property at the Huntington Beach
address. Id. ¶ 11.
February 24, 2017, Investigator Dotson spoke with Walstrom
over the telephone. Id. ¶ 9. In a signed
affidavit, Investigator Dotson described his conversation
with Walstrom as follows:
I called Walstrom [ ] and spoke in detail regarding his
knowledge of this case and his desire to make proceeding as
difficult as possible for [Plaintiff's counsel]. Walstrom
claimed to be an ex-attorney who knows the law. Walstrom
stated he would honor the original contract to produce a
custom Limo for [Plaintiff], provided [Plaintiff] drops the
lawsuit. Walstrom said if [Plaintiff] did not cease efforts
in this lawsuit, Walstrom would incur as much cost for
service as possible . . . . Walstrom stated he is well aware
of this lawsuit.
Id., Ex. D (“Dotson Aff.”), at 1.
Walstrom acknowledges that he spoke with Investigator Dotson
on February 24, 2017, and he does not dispute the above
description of their conversation. See Walstrom Aff.
March 14 to March 22, 2017, Investigator McAndrews made at
least three more unsuccessful attempts to serve Walstrom at
the Huntington Beach address. Pl.'s 2d Mot. Default
¶¶ 13, 19-20, 22. According to Investigator
McAndrews, no individuals were at the address during this
period, id., although a black Mercedes was parked in
the driveway each time he visited, id. ¶ 29.
Walstrom disputes this assertion, maintaining that he and his
family members regularly entered and exited the property at
the Huntington Beach address around this time. Walstrom Aff.
March 23, 2017, Investigator McAndrews again went to the
Huntington Beach address to attempt service. Pl.'s 2d
Mot. Default ¶ 24. That day, he saw a black Mercedes
slowly pass the residence before making a U-turn at the end
of the block. Id. ¶ 25. The Mercedes then
returned and parked in front of Walstrom's residence.
Id. A woman who matched descriptions of
Walstrom's wife exited the driver's side of the
Mercedes. Id. ¶ 26. Investigator McAndrews
approached the woman and called her name, but she immediately
ran into the residence and shut the patio door behind her.
Id. ¶ 27. Investigator McAndrews dropped the
summons and the complaint over the patio door and advised the
woman that she was being served on behalf of Walstrom.
Id. ¶ 28. He also left copies of the service
documents on the patio and under the windshield wipers of the
Mercedes, and he mailed another copy to Walstrom at the
Huntington Beach address. Id. ¶¶ 29-30.
Plaintiff asserts (and Defendants do not dispute) that these
efforts were sufficient to serve process on Walstrom. See
Id. ¶ 31.
on March 22, 2017, Plaintiff filed a motion for entry of
default as to Big Limos and mailed copies of the motion to
Big Limos's registered address and Walstrom's
Huntington Beach address. Pl.'s 1st Mot. Default at 6.
The Court held a hearing on the motion on March 29, 2017.
Defendants did not appear at the hearing, and Big Limos had
neither filed an appearance nor responded to Plaintiff's
complaint by that time. Accordingly, the Court granted
Plaintiff's motion and entered an order of default as to
Big Limos. Order of 3/29/17, ECF No. 12.
April 19, 2017, Plaintiff filed a motion for entry of default
as to Walstrom. See Pl.'s 2d Mot. Default.
Again, Plaintiff mailed copies of the motion to Big
Limos's registered address and Walstrom's Huntington
Beach address. Id. at 11. By that date, Defendants
still had not appeared or responded to the
April 24, 2017, attorney Dennis Esford (“Esford”)
filed an appearance on behalf of both Defendants. Defendants
claim that they initially contacted Esford regarding this
litigation on February 16, 2017. Defs.' Mot. Vacate
¶ 1, ECF No. 18. At that time, Esford told Defendants
that he could not represent them until he first reviewed the
substance of Plaintiff's claims and determined whether he
had time to take the case. Id. ¶ 2.
Nevertheless, Defendants claim that they believed Esford had
agreed to represent them. Id. ¶ 3. It was not
until April 24, 2017, that Esford learned of Defendants'
mistaken belief. Id. Upon learning this information,
Esford immediately filed an appearance on Defendants'
behalf. Defs.' Mot. Vacate ¶ 4. That same day,
Defendants, through Esford, also filed a motion asking the
Court to vacate the entry of default as to Big Limos.
Id. ¶ 12.
April 26, 2017, the Court held a hearing on Plaintiff's
motion for entry of default as to Walstrom. Esford attended
the hearing on Defendants' behalf. During the hearing,
the parties discussed Plaintiff's pending motion for
entry of default as to Walstrom, as well as Defendants'
pending motion to vacate the entry of default as to Big
Limos. At the conclusion of the hearing, ...