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Diligent inquiry by plaintiffs required for proper service

Chicago Daily Law Bulletin August 13, 2013

By Colin H. Dunn

Premise Liability Lawyer, Colin H. Dunn – Aviation Accident Attorney

Dunn is an partner at Clifford Law Offices who concentrates in personal injury and aviation law and handles complex and mass tort litigation.

A court may only impose a judgment against a party over whom it has obtained personal jurisdiction. And a court normally obtains personal jurisdiction over a defendant through the effective service of summons upon that defendant.

Providing effective service is a big deal; it protects the defendant's due process rights to proper notification and for an opportunity to be heard. Inadequate service of summons divests the court of personal jurisdiction over the defendant and renders void judgments entered by a court against that defendant. Dar. C., 2011 IL 111083,¶ 60-1.

When a defendant raises an issue as to whether he was properly served, the answer usually boils down to whether the plaintiff was "diligent" in locating the defendant and otherwise effecting service. See Sutton v. Ekong, 2013 IL App (1st) 121975.

In Sutton, the plaintiff filed suit against a driver who rear-ended her. After the sheriff was unable to serve the defendant, the plaintiff had a special process server appointed. The process server tried five times to serve the defendant at his residence: Three times there was no answer; one time a man answered on the intercom and said "go away, I'm not coming downstairs for anything;" and during the final attempt a man who answered on the intercom said that the defendant was not home and refused to go to the main door.

The process server indicated that she spoke with a neighbor who said that the defendant resided at that building and was frequently at home. Based upon this evidence, the plaintiff believed the defendant was evading service.

So she filed a motion for service of the defendant by special order of the court pursuant to Section 2–203.1 of the Code of Civil Procedure (735 ILCS 5/2–203.1 (West 2008)). Normally service on an individual is made by either 1) "leaving a copy of the summons with the defendant personally" or 2) "by leaving a copy at the defendant's usual place of abode, with some person of the family or a person residing there, of the age of 13" plus mailing a copy of the summons to the defendant at the same address. 735 ILCS 5/2-203(a)(1) & (2) (West 2012).

Section 2-203.1 permits a court to order service in a different way (but in a manner consistent with due process) if the plaintiff can show that she has made a "diligent inquiry as to the location of the defendant" and that "reasonable efforts to make service have been unsuccessful." 735 ILCS 5/2–203.1 (West 2008) (detailing requirements for the plaintiff's affidavit in support of the motion).

The plaintiff asserted that she had been diligent in attempting to serve the defendant and suggested that she be allowed to serve the defendant through the secretary of state, like Section 10–301 of the Illinois Vehicle Code (625 ILCS 5/10–301 (West 2008)) allows if the defendant resides out of state, because that manner of service was consistent with due process.

The circuit court granted the plaintiff's motion. With continued radio-silence from the defendant six months after the secretary of state had accepted service, the plaintiff filed a motion for default judgment. The circuit court entered a default judgment and awarded $199,998.32 in damages.

A month after the defendant was personally served with a citation to discover assets, he sought to vacate the default judgment and quash service, asserting that the court did not have personal jurisdiction over him because service was improper. In his motion to quash, the defendant attached an investigation report prepared for the plaintiff that informed her of the defendant's office address and noted that the plaintiff had not attempted to serve him there.

The plaintiff responded that she had sent a copy of the summons and complaint to the defendant's residential address and left several messages with the defendant's staff at his business address after having learned of that address and that the defendant received a copy of the motion for default judgment at his business address.

The plaintiff also maintained that her attorney spoke with the defendant on the day before the entry of default judgment and explained to him that the case was set for a hearing on the motion for default judgment and advised him to attend the hearing, but the defendant said he had done nothing wrong and failed to appear at the hearing.

The plaintiff further maintained that the defendant received the notice of the prove-up hearing, but did not attend that hearing and that counsel for the plaintiff provided the defendant with a copy of the judgment order and memorandum of judgment.

On appeal, the defendant contended that the default judgment entered against him was void because the circuit court did not have personal jurisdiction over him. Specifically, the defendant asserted that service was improper because the plaintiff did not make a diligent inquiry as to his location prior to requesting service by special order of the court.

The court noted that a failure to conduct a diligent inquiry of the defendant's location will result in improper service. Mugavero v. Kenzler, 317 Ill.App.3d 162, 166 (2000). See also In re Marriage of Schmitt, 321 Ill.App.3d 360 (2001) (finding the petitioner had conducted a diligent inquiry to locate the respondent where the process server made approximately 11 unsuccessful attempts to serve the respondent at various locations, including the respondent's Aurora business, the respondent's Chicago business, a local bar and the Kane County courthouse); Mugavero v. Kenzler, 317 Ill.App.3d 162 (2000) (finding that the plaintiff had not established that he made a diligent inquiry to locate the defendant where the plaintiff merely stated that the defendant had moved from the address on the summons and left no forwarding address).

For instance, "relying on a computerized database search of a parent's name while ignoring, or otherwise not investigating, other potentially useful information does not constitute a diligent inquiry." Dar. C., 2011 IL 111083, ¶ 83.

Relying on those cases, the court agreed that the plaintiff had not made a diligent inquiry.

Though she made six attempts to serve the defendant at his residence and a man told the plaintiff's process server "go away, I'm not coming downstairs for anything," there was nothing in the record that the plaintiff took any further steps to verify that this man was the defendant or that the defendant was living there at the time.

Nor did the plaintiff attempt to serve the defendant at his business address and, while there is no evidence that the plaintiff was aware of that address prior to filing her motion for service by special order of the court, the plaintiff did not dispute that the defendant's business address was in the phone book and could have easily been obtained.

The court found that "[a]n earnest and attentive person seeking to locate [the defendant] would have at least conducted the kind of basic search that would have revealed [the defendant's] business address in an attempt to verify that he was the person who spoke to [the process server] and was evading service."

And even if the defendant somehow received notice of the proceedings prior to the entry of default judgment, a judgment rendered by a court without personal jurisdiction is void irrespective of whether the defendant had actual knowledge of the proceedings. Citimortgage, Inc. v. Cotton, 2012 IL App (1st) 102438, ¶ 12.

Because the plaintiff did not conduct a diligent inquiry as to the defendant's whereabouts prior to requesting service by special order of the court, the court did not have personal jurisdiction over the defendant when it entered default judgment.

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