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Thompson v. Ross Dialysis-Englewood, LLC

Court of Appeals of Illinois, First District, First Division

September 11, 2017

KEITH THOMPSON, Plaintiff-Appellee,
v.
ROSS DIALYSIS-ENGLEWOOD, LLC; FRESENIUS MEDICAL CARE OF ILLINOIS, LLC; and JAMILA BRAGGS, Defendants, (Jamila Braggs, Defendant-Appellant).

         Appeal from the Circuit Court of Cook County No. 14 L 13197 The Honorable Eileen M. Brewer, Judge Presiding.

          PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Neville and Hyman concurred in the judgment and opinion.

          OPINION

          PIERCE, PRESIDING JUSTICE

         ¶ 1 In this interlocutory appeal, Jamila Braggs, an Illinois resident, challenges the circuit court's order denying her motion to dismiss for lack of personal jurisdiction. Plaintiff sought leave of court to serve defendant by alternative methods after his attempts to personally serve her with an alias summons and complaint were unsuccessful. Defendant argues that plaintiff did not demonstrate diligence in attempting to serve her with a summons and complaint either through personal or substitute service, and therefore was not entitled to a special order of court allowing alternative service. We agree. We therefore reverse the circuit court's order granting plaintiff's motion for alternative service, quash the service of process on defendant, and remand for further proceedings.

         ¶ 2 BACKGROUND

         ¶ 3 On December 22, 2014, Keith Thompson filed a complaint against Ross Dialysis-Englewood, LLC, Fresenius Medical Care of Illinois, LLC, and Jamila Braggs. Thompson alleged that Braggs, an employee or agent of Ross Dialysis, assaulted and battered him while plaintiff was an invitee at Ross Dialysis. On February 13, 2015, a summons was issued addressed to Braggs at 14528 Des Plaines Street, Harvey, Illinois. The sheriff's office of Cook County made three unsuccessful attempts between March 1 and March 7 to serve Braggs at 14528 Des Plaines Street. The affidavit of non-service explained that Braggs was not served because, "per the Forte family, [defendant] unknown."

         ¶ 4 On May 1, 2015, an alias summons was issued addressed to Braggs at 14528 Des Plaines Street. On May 28, 2015, plaintiff's special process server executed an affidavit stating that he served Braggs with a copy of the summons and complaint at 15722 Spaulding Avenue, Markham, Illinois on "May 21, 2013, " [sic] at 9:13 p.m. The process server's affidavit stated that the person served with the summons and complaint "[r]efused to show ID, " and was described as an African American female, approximately 35 years old.[1]

         ¶ 5 On September 9, 2015, Braggs filed a motion to quash the "May 21, 2013, " [sic] service of process. Attached to the motion to quash was Braggs's affidavit executed on August 24, 2015. She averred that she currently resided at 151 South Desplaines Street, Joliet, Illinois, and she had lived there since September 2014. She stated that she did not reside at 15722 Spaulding Avenue, had not resided at that address since 2012, and was not present at that address on May 21, 2015. Braggs further claimed that she had not been served with any summons or complaint. Her affidavit was not supported by any exhibits or corroborated by any evidence of her address.

         ¶ 6 On September 16, 2015, the circuit court entered a handwritten order granting Braggs's motion to quash. The order also granted Thompson leave to issue an alias summons and appointed a special process server. On September 18, 2015, an alias summons was issued for "Jamilla Braggs, "[2] with a listed address of "151 Desplaines St., Joliet, IL 60436." A case management order entered on October 28, 2015, states that "[i]f [Defendant] Braggs not served Plaintiff granted leave to issue alias summons and appoint *** [a] special process server."

         ¶ 7 On December 17, 2015, Thompson filed a motion for leave to issue a third alias summons and appoint a special process server. The motion explained that his special process server had changed addresses and was not able to timely serve the second alias summons that had been previously issued. The circuit court granted Thompson's motion on December 28, 2015, and the third alias summons was issued on January 8, 2016.

         ¶ 8 On March 2, 2016, Thompson filed a motion for alterative service pursuant to section 2-203.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-203.1 (West 2014)), claiming that he had incurred "significant expense attempting to locate and personally serve [Braggs], however [p]laintiff has been unable to serve [Braggs]." Attached to the motion was a skip trace performed on February 9, 2015, by Stewart & Associates, Inc. that listed 18 possible addresses for Braggs, one of which was 15722 Spaulding Avenue. Also attached to the motion for alternative service was an affidavit of non-service executed by Joseph Bell on February 12, 2016. Bell's affidavit stated that he attempted to serve Braggs at 15722 Spaulding Avenue and that "[i]t has been determined that subject does not live at address listed on summons. The address on summons [sic] is 151 Desplaines St., Joliet, IL 60436." Bell detailed two attempts to serve Braggs at 15722 Spaulding Avenue. On January 19, 2016, at 8:43 a.m., Bell observed a grey Nissan with Illinois license plates parked in the driveway.[3] After he knocked on the door and announced his presence, a female spoke through the door, asked him to leave, and threatened to call the police. She refused to provide her name or identification. On January 27, 2016, Bell again observed the grey Nissan in the driveway. Without opening the door, a female occupant insisted that Bell leave or that she would call the police. She refused to provide her name or identification, and she called the police. A Markham police officer arrived, and Bell asked the officer to confirm the women's identify. The officer refused to do so.

         ¶ 9 On March 3, 2016, the circuit court granted Thompson's motion for alternative service. The order granted Thompson leave to attempt service by certified mail and posting on Braggs's door. A fourth alias summons for Braggs was issued on March 9, 2016, with a listed address of "151 Desplaines St., Joliet, IL 60436." Thompson sent the summons and complaint via certified and regular mail to 151 Desplaines Street, and both letters were postmarked March 9, 2016. On April 2, 2016, Bell executed an affidavit for service by publication and posting, in which he attested that Braggs was concealed within the state.[4]

         ¶ 10 On April 15, 2016, Braggs filed a motion to dismiss pursuant to section 2-301 of the Code (735 ILCS 5/2-301 (West 2014)) for lack of personal jurisdiction. She argued that Thompson failed to effectuate personal or substitute service pursuant to section 2-203(a) of the Code (735 ILCS 5/2-203(a) (West 2014)), and that service by alternative method was not available where Thompson did not demonstrate that personal or substitute service was impractical. Furthermore, Braggs argued that Thompson's motion for leave to obtain service through alternative methods failed to demonstrate that Thompson made a diligent inquiry into Braggs's whereabouts or made a reasonable effort to achieve personal or substitute service pursuant to section 2-203(a) of the Code. Attached to Braggs's motion to dismiss was an affidavit she executed on April 6, 2016, which states that Braggs resided at 151 South Desplaines Street "and [had] lived at this address since the date of my last [a]ffidavit *** until the present date[, ]"[5] that she had not lived at the Spaulding address since 2012, and that she was not present at the Spaulding address on either January 19 or January 27. She further claimed that on March 12, 2016, she received mail at 151 South Desplaines Street from Thompson's attorney's firm, and that on March 16, 2016, she received a summons and complaint taped to her door at 151 South Desplaines.

         ¶ 11 On April 22, 2016, the circuit court denied Braggs's motion to dismiss "based upon plaintiff's prior attempts at service and order granting alternative service." Braggs filed a petition for leave to appeal pursuant to Illinois ...


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