United States District Court, C.D. Illinois, Peoria Division
SHEET METAL WORKERS' LOCAL No. 1 WELFARE TRUST, et al., Plaintiffs,
THE LANE COMPANY, INC., Defendant.
E. SHADID CHIEF UNITED STATES DISTRICT JUDGE
before the Court are the Defendant's, The Lane Company,
Inc., Motion to Vacate Judgement (D. 18),  and the
Plaintiffs', Sheet Metal Workers' Local No. 1 Welfare
Trust, and several other entities, Response (D. 27). For the
reasons set forth below, the Defendant's Motion to Vacate
(D. 18) is DENIED in part and GRANTED in part.
Plaintiffs filed suit in January 2018, seeking to recover
from the Defendant delinquent fringe benefit contributions
and check-offs due under the terms of a collective bargaining
agreement. (D. 1). They further sought liquidated damages and
interest on said amounts, along with reasonable
attorney's fees, court costs, and all other reasonable
expenses incurred. Id. The Plaintiffs-by way of a
McClean County Sheriff's Office deputy-served the
Defendant's registered agent, Barbara Page, with a copy
of the Complaint on January 11, 2018. (D. 4).
the Defendant failed to file a response to the
Plaintiffs' Complaint, the Plaintiffs filed a Motion for
Entry of Default. (D. 5). The Court granted the
Plaintiffs' Motion and the Clerk of the Court entered
Default against the Defendant. (See the Court's February
9, 2018 Text Orders). Later that month, still with no
response from the Defendant, the Plaintiffs filed a Motion
for Default Judgment. (D. 6). The Court ultimately granted
the Plaintiffs default judgment in May 2018 and the Clerk
entered judgment in favor of the Plaintiffs on June 6, 2018.
(D. 9); (D. 10).
5, 2018, counsel entered a Notice of Appearance on behalf of
the Defendant in this case and filed the Motion to Vacate
Judgment presently before the Court. (D. 15); (D. 18). The
Defendant also filed a supporting memorandum, attached to
which is an affidavit signed by Page. (D. 19 at pp. 9-12).
She claims she “just” retained counsel in this
case when her counsel incidentally discovered the existence
of the suit and that she does “not believe [she] was
served with the Complaint in this matter[.]”
Id. at pg. 10. Most of the Defendant's arguments
are premised on the assumption that Page was not properly
served with the Complaint. They bring their Motion pursuant
to Federal Rules of Civil Procedure 52(b), 55(c), 59(e), and
60(b), and further invoke Federal Rule of Appellate Procedure
it is the Plaintiffs' burden to prove service by a
preponderance of the evidence, since there is documentation
of valid service on the record in this case, that service is
presumed to be effected. O'Brien v. R. J. O'Brien
& Associates, Inc., 998 F.2d 1394, 1398 (7th Cir.
1993) (“A signed return of service constitutes
prima facie evidence of valid service which can be
overcome only by strong and convincing evidence.”)
(internal quotations omitted). In other words, “once
such a prima facie showing is made, the burden
shifts to the defendant to demonstrate that service was
not received.” Homer v. Jones-Bey,
415 F.3d 748, 752 (7th Cir. 2005) (emphasis added, citations
omitted). Mere denials that service was effected does not
constitute strong and convincing evidence. See Bilal v.
Rotec Indus., Inc., 2004 WL 1794918, at *3 (N.D. Ill.
Defendant offers no evidence that calls into question the
validity of service to Page. Rather, Page asserts that she
does not “recall” being served and counsel
represents that she does not “believe” she was
served with a copy of the Complaint. (D. 19 at pg. 10); (D.
18 at pg. 2). This is merely a denial that service was
effected. As noted above, such conclusory statements fail to
qualify as strong and convincing evidence sufficient to rebut
the presumption that the Defendant was validly served with a
copy of the Complaint. Therefore, all of the Defendant's
arguments proceeding from the starting point that Page was
not properly served are DENIED.
Defendant makes two additional arguments in the alternative.
Even if service is deemed valid, the Defendant asserts that
the Court should: (1) relieve them from judgment due to
mistake, inadvertence, surprise, or excusable neglect,
pursuant to Federal Rule of Civil Procedure 60(b)(1) and (6)
(D. 19 at pp. 4-5); or (2) extend their time to file an
appeal, pursuant to Federal Rule of Appellate Procedure
4(a)(5) (Id. at pp. 5-6).
order for the Court to find that the Defendant is entitled to
relief under Federal Rule of Civil Procedure 60(b), it must
find that they have demonstrated: (1) good cause for default;
(2) quick action to correct the default; and (3) a
meritorious defense to the Plaintiffs' Complaint.
O'Brien, 998 F.2d at 1401. “Failure to
make any of the three showings warrants denial of a motion to
vacate.” Wells Fargo Equipment Finance, Inc. v.
PMRC Services, Inc., 2011 WL 635861, at *2 (N.D. Ill.
2011) (citing Pretzel & Stouffer v. Imperial
Adjusters, Inc., 28 F.3d 42, 46-47 (7th Cir. 1994)).
Defendant posits in their Rule 60(b) argument that Page
excusably neglected the proceedings at hand because she was
tending to her mother and husband, both of whom had serious
medical issues, and is further in the midst of a divorce. (D.
19 at pp. 4-5). While the Court sympathizes with her plight,
these problems-as significant as they are-do not establish
good cause for default. The Defendant, through Page,
neglected to file a pleading in this matter until July 5,
2018. This was nearly six months after she was served with a
copy of the Complaint. At some point before the Court entered
default judgment in favor of the Plaintiffs, the Defendant
could have acknowledged these proceedings, if only to request
additional time to respond due to the extenuating
circumstances now being brought to the Court's attention.
Accordingly, the Defendant's request for relief pursuant
to Rule 60(b) is DENIED.
to Federal Rule of Appellate Procedure 4(a)(4), however, the
Defendant is entitled to file a notice of appeal within 30
days of this ruling. The Court need not address their
argument regarding Federal Rule of Appellate Procedure
4(a)(5). (D. 19 at pp. 5-6). Rule 4(a)(4) states that
“the time to file an appeal runs for all parties from
the entry of the order disposing of[, ]” inter
alia, motions brought pursuant to Federal Rules of Civil
Procedure 52(b), 59, and 60, that were filed no later than 28
days after judgment was entered. The Defendant's Motion
to Vacate, brought in part pursuant to the Rules 52(b), 59,
and 60, was filed precisely 28 days after judgment was
entered in this matter. As a result, the Defendant may file a
notice of appeal no later than 30 days from entry of this
Order (by September 3, 2018) and their Motion is GRANTED in
foregoing reasons, the Defendant's Motion to Vacate (D.
18) is DENIED in part and GRANTED in part.