United States District Court, S.D. Illinois
DR. GERALD H. BEMIS, SR., D.C., individually and as the representative of a class of similarly situated persons, Plaintiffs,
MERCHANT ADVANCE EXPRESS, INC., ET AL., Defendants.
G. WILKERSON United States Magistrate Judge
matter is before the Court on Plaintiff's motion for
alternate service and extension of time to serve Defendants
Mass. Marketing Solutions, Inc., Email Blast USA Inc., Luis
Schupbach, Patrick Thomas, and Walton Rosenthal (Doc. 80).
For the reasons set forth below, the Motion is GRANTED.
Dr. Gerald H. Bemis, Sr., D.C. (“Plaintiff”),
filed this proposed class action lawsuit on December 14, 2015
against Defendant Merchant Advance Express, Inc.
(“Merchant Advance Express”) and John Does 1-12.
In accordance with the Scheduling Order, Plaintiff sought
leave to file an amended complaint. Plaintiff's motion
was granted and his amended complaint was filed on February
8, 2017 (Doc. 50). The amended complaint names as additional
defendants to this lawsuit Mass. Marketing Data, Inc., d/b/a
Mass. Marketing Solutions, Inc., Email Blast USA Inc., d/b/a
Mass. Marketing Data Inc., Luis Schupbach, Patrick Thomas,
and Walton Rosenthal. Since the filing of the amended
complaint, Plaintiff has attempted service on each of the
newly named defendants, but to no avail. Plaintiff now asks
the Court to allow alternate service on these defendants and
seeks an extension of time to do so. Defendant Merchant
Advance Express, Inc. did not file a response to
district court may not exercise personal jurisdiction over a
defendant unless the defendant has been properly served with
process. U.S. v. Ligas, 549 F.3d 497, 500 (7th Cir.
2008). Acceptable methods for service on an individual are
specified in Rule 4 of the Federal Rules of Civil Procedure.
Id. While the preferred approach for service is
delineated in Rule 4(d), wherein the plaintiff would mail the
defendant a copy of the complaint and summons and obtain a
waiver of personal service, “[u]nless federal law
provides otherwise, an individual … may be served in a
judicial district of the United States by following state law
for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is
located or where service is made.” Fed.R.Civ.P. 4(e).
Rule 4(h) provides that under normal circumstances a
corporation must be served: (1) in the manner prescribed by
Rule (4)(e)(1) for serving an individual; or (2) by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and … by also mailing a copy of each to the
Plaintiff has pled that the corporate defendants are
incorporated in Arizona with their principal place of
business in Arizona and that the individual defendants are
Arizona residents - therefore Arizona would be “where
service is made.” Accordingly, Arizona law controls.
Arizona law, when personal service has become impracticable,
Rule 4.1(k) of the Arizona Rules of Civil Procedure
authorizes service by alternate means. Although
“impracticability” is not clearly defined, it has
been interpreted to mean that circumstances
“demonstrate that service of process through the usual
means would have been ‘extremely difficult or
inconvenient'.” Blair v. Burgener, 226
Ariz. 213, 219 (Ariz.Ct.App. 2010) (quoting Pacific Fire
Ins. Co. v. Reiner, 45 F.Supp. 703, 708 (E.D. La.
1942)). Further, in Blair, the court approvingly
cited language from a New York case on a similar issue in
which it concluded that three attempts at service on three
different days constituted sufficient efforts to warrant
alternative means of service. Blaire, 226 Ariz. at
219; see BMO Harris Bank, N.A. v. D.R.C. Investments,
L.L.C., No. CV-13-1692-PHX-LOA, at *4 (D. Ariz. Sept. 9,
has provided sufficient evidence demonstrating that personal
service has become impracticable on defendants Mass.
Marketing Data, Inc., Email Blast USA Inc., Luis Schupbach,
Patrick Thomas, and Walton Rosenthal insofar as the usual
means of service have proved to be “extremely difficult
or inconvenient.” In particular, Plaintiff has
submitted evidence establishing five separate attempts at
service on Mass. Marketing Data, Inc. on four separate days
that were unsuccessful (see Docs. 64 and 74).
Plaintiff's attempts to ascertain additional information
on Mass. Marketing Data via subpoena were unsuccessful. With
regard to Email Blast USA, Inc. (“Email Blast”),
Plaintiff has demonstrated four failed attempts on four
separate days to effect service (see Docs. 66 and
73). Again, Plaintiff's efforts to obtain more
information regarding Email Blast via subpoena were
the individual defendants Luis Schupach, Patrick Thomas, and
Walton Rosenthal, Plaintiff has provided sufficient evidence
to demonstrate his inability to serve these defendants by the
methods enumerated under Rule 4(d) of the Arizona Rules of
Civil Procedure, set forth as follows:
(1) Delivering a copy of the summons and the pleading being
served to that individual personally;
(2) Leaving a copy of each at that individual's dwelling
or usual place of abode with someone of suitable age and
discretion who resides there; or
(3) Delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
particular, Plaintiff attempted service on Luis Schupbach at
his only known addresses on four separate occasions, but to
no avail (see Docs. 65, 72, and 75). Plaintiff also
attempted service on Patrick Thomas at his only known address
on four separate occasions, but was unsuccessful
(see Docs. 67 and 71). Finally, Plaintiff attempted
service on Walton Rosenthal on four separate occasions at his
only known address, but was unsuccessful again (see
Docs. 63 and 76). Plaintiff represents that he has no other
leads on ...