United States District Court, N.D. Illinois, Eastern Division
Gustavo Acosta, Maria Del Carmen Rau, and Magdalena Torres, Plaintiffs,
Ashley's Quality Care, Inc., Defendant.
MEMORANDUM OPINION & ORDER
Honorable Thomas M. Durkin United States District Judge
Gustavo Acosta, Maria Del Carmen Rau, and Magdalena Torres
sued defendant Ashley's Quality Care, Inc.
(“Ashley's”) under the Fair Labor Standards
Act and Illinois Wage Payment and Collection Act for failure
to pay minimum and overtime wages. Currently before the Court
are: (1) Ashley's motion to vacate the order of default
against it and to dismiss plaintiffs' citation to
discover assets (R. 36); and (2) plaintiffs' motion for a
turnover order (R. 29). For the reasons set forth below,
Ashley's motion is denied, and plaintiffs' motion is
filed their complaint against Ashley's on May 19, 2016.
R. 1. On July 5, 2016, special process server Kathleen
DiNunno delivered the summons and complaint to 610 West Root
Street, Chicago, Illinois-Ashley's place of business and
the address of its registered agent, Frankie Jean Redditt. R.
39-1 ¶ 4. According to an affidavit filed by DiNunno,
Ashley's receptionist Genorise Carmichael told DiNunno
that Redditt was unavailable, but that Carmichael “was
authorized to accept service on behalf of the
business.” Id. ¶ 6. DiNunno therefore
“left a copy of the summons, complaint, and [a] June
10, 2016 order from the Court with [Carmichael].”
Id. ¶ 7. DiNunno attests that Carmichael
“understood the nature of the documents served upon her
as [DiNunno] informed [Carmichael] of their contents.”
Id. ¶ 9. DiNunno's original affidavit filed
with the Court on July 11, 2016 along with the return of
service states: “Genorise Carmichael is authorized to
accept service on behalf of the business.” R. 6 at 2.
Ashley's failed to answer the complaint, plaintiffs filed
a motion for default, which they served on Ashley's (care
of Redditt) by certified mail. R. 9 at 4. This Court granted
“the entry of a default order” August 25, 2016.
R. 12. Plaintiffs subsequently moved for a default judgment
and served that motion on Ashley's (care of Redditt) by
certified mail. R. 15 at 4. The Court entered default
judgment against Ashley's on November 16, 2016. R. 19.
The default judgment awarded plaintiffs damages for wages
they represented by affidavit had been unpaid.
Id. In October 2017, plaintiffs issued a
citation to discover assets to third-party PNC Bank
(Ashley's bank). R. 22; R. 25. In December 2017,
plaintiffs moved for a turnover order of $1, 824.30 in funds
held by PNC Bank. R. 29.
February 5, 2018, Ashley's moved to vacate the default
and to dismiss plaintiffs' citation to discover assets.
R. 29. In support of its motion, Ashley's filed an
affidavit from its human resource manager Clifford Davis
stating that Carmichael “was not a corporate officer of
Ashley's, ” “did not have corporate
responsibilities at Ashley's, ” and was not
“designated to receive service of process on
Ashley's.” R. 36-1 ¶¶ 4-6. Ashley's
also filed an affidavit from its payroll director Lazane Onar
reciting alleged payments made to plaintiffs Del Carmen Rau
and Acosta on certain dates, and attaching compensation
records in support. R. 36-2.
Effectiveness of Service of Process
first argues that Carmichael did not have authority to accept
service of process on behalf of Ashley's. Therefore,
Ashley's says, the default judgment is void under
Fed.R.Civ.P. 60(b)(4) and should be vacated.
service is improper, a default judgment is void for lack of
jurisdiction under Rule 60(b)(4). Relational, LLC v.
Hodges, 627 F.3d 668, 672 (7th Cir. 2010) (“[A]
judgment is void as to any party who was not adequately
served.”). And “no court has the discretion to
refuse to vacate that judgment once it recognizes its lack of
jurisdiction.” Philos Tech., Inc. v. Philos &
D, Inc., 645 F.3d 851, 855 (7th Cir. 2011).
Fed.R.Civ.P. 4(h)(1), a corporation may be served “by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of
process.” A corporation also may be served by
“following state law for serving a summons . . . in the
state where the district court is located or where service is
made.” Fed.R.Civ.P. 4(h)(1) & (e)(1). Illinois law
provides that “[a] private corporation may be served .
. . by leaving a copy of the process with its registered
agent or any officer or agent of the corporation found
anywhere in the State.” 735 ILCS 5/2-204(1).
plaintiff generally bears the burden of showing “that
the district court has jurisdiction over each defendant
through effective service.” Cardenas v. City of
Chi., 646 F.3d 1001, 1005 (7th Cir. 2011). However,
“‘where the agency of the person named on the
return is disputed, the defendant has the burden of proving
that the individual served was not a proper person to receive
service.'” Iosello v. Lexington Law Firm,
2003 WL 21920237, at *3 (N.D. Ill. Aug. 12, 2003) (quoting
Island Terrace Apartments v. Keystone Serv. Co., 341
N.E.2d 41, 44 (Ill.App.Ct. 1975)); accord Esquivel v. Doc
Able's Auto Clinic, Inc., 2016 WL 1463768, at *2
(N.D. Ill. April 14, 2016).