United States District Court, C.D. Illinois
SCHANZLE-HASKINS UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff Collin
Cliburn's Motion for Alternate Service and Extension of
Time to Serve Defendant (d/e 11) (Motion). For the reasons
set forth below, the Motion is ALLOWED in part and DENIED in
alleges Defendant MD Medical Solutions, Inc. (MD Medical),
violated the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692, in connection with trying to collect a debt
Cliburn allegedly owed the Menard County, Illinois, EMS.
Cliburn is a resident of Illinois and MD Medical is an
Indiana corporation with its principal place of business
located at 133 W. Market St., Suite 215, Indianapolis,
initially failed to serve MD Medical properly. See Text
Order entered July 26, 2017. Cliburn states in the
Motion that he delayed attempting to effect service because
the parties were negotiating a settlement. Cliburn alleges
that the parties did not settle.
then attempted to serve MD Medical's owner and registered
agent Larry Higgins. Cliburn submitted an affidavit from a
process server named Tim Howard dated November 3, 2017.
Howard states that he unsuccessfully attempted to serve
Higgins at MD Medical's principal place of business
during normal business hours on September 13, 2017, September
15, 2017, September 29, 2017, October 4, 2017, and October
13, 2017. Each time Higgins was not available. Howard also
attempted service on September 20, 2017 at 5:05 pm and on
September 26, 2017, at 8:15 a.m. On these occasions, the
offices were locked.
asks for additional time to serve MD Medical and for
permission to serve MD Medical by alternate service available
under Illinois law, 735 ILCS 5/2-203.1. The Court will allow
the request for extension of time to serve, but will not
allow alternate service under § 5/2-203.1.
Federal Rules of Civil Procedure govern service of process.
Rule 4(h) provides that service on a corporation may be
effected: (1) by service on the registered agent, officer,
manager or general agent, or other agent authorized to accept
service of process, or (2) in the manner prescribed for
service on individuals under Rule 4(e)(1). Fed.R.Civ.P. 4(h).
Rule 4(e)(1) authorizes service by following state law in the
state where this Court is located or the state where service
is made. Fed.R.Civ.P. 4(e)(1). This Court is located in
Illinois and service will be made in Indiana at MD
Medical's principal place of business. Cliburn,
therefore, may serve MD Medical in the manner prescribed in
either Illinois law or Indiana law. Cliburn may also serve
under the manner prescribed by both Illinois and Indiana if
law provides that a foreign corporation authorized to do
business in Illinois may be served by serving the Illinois
Secretary of State whenever the corporation's registered
agent cannot with reasonable diligence be found at the
registered office in Illinois. 805 ILCS 5/5.25(b)(2). The
manner for serving the Illinois Secretary of State is set
forth in 805 ILCS 5/5.25(c). Illinois law also provides that
a foreign corporation doing business in Illinois, but not
authorized to do business in Illinois, is deemed to have
designated the Illinois Secretary of State as its agent for
service of process. The manner of service is set forth again
in 805 ILCS 5/5.25(c). Service under § 5/5.25(c)
involves serving an appropriate clerk in the Illinois
Secretary of State's corporate division, mailing the
appropriate documents to the corporation by certified mail,
and appending the appropriate affidavit on the Illinois
Secretary of State form in the manner prescribed by the
section. If Cliburn serves MD Medical under Illinois law, he
should carefully review and comply with § 5.5.25(c).
law provides that a corporation may be served by serving
registered agent, or if the agent cannot with reasonable
diligence be served, the corporation may be served by
registered or certified mail, return receipt requested,
addressed to the corporation's secretary or other
executive officer at the corporation's principal place of
business. Ind. Code § 23-1-24-4. If Cliburn serves MD
Medical under Indiana law, he should carefully review and
comply with § 23-1-24-4.
Court finds that Cliburn has demonstrated through
Howard's affidavit that he cannot with reasonable
diligence serve MD Medical's registered agent Larry
Higgins personally. Cliburn may therefore follow the methods
set forth in 805 ILCS 5/5.25(c) or Ind. Code § 23-1-24-4
to serve MD Medical. The alternate service method proposed in
the Motion, however, is not appropriate. Illinois law
authorizes alternate service for individuals, not
corporations. 735 ILCS 5/2-203.1.
IT IS ORDERED, Plaintiff's Motion for Alternate Service
and Extension of Time to Serve Defendant (d/e 11) is ALLOWED
in part and DENIED in part. Plaintiff Collin Cliburn is given
an extension of time until December 8, 2017, to serve
Defendant MD Medical Solutions, Inc. The Court denies the
request for alternate service under Illinois law 735 ILCS
5/2.203.1. The Court finds that Cliburn has demonstrated he
cannot with reasonable diligence serve MD Medical's
registered agent Larry Higgins personally. Cliburn should
serve MD Medical in the manner authorized for service of
corporations under such ...