01/27/2023
For your reading pleasure, an article I just wrote regarding the law of serving process: what does it take to complete service on people who are skating or simply hard to find?
Service of Process
The requirements for service are found in various statutes and rules. Most cases begin with
service of a summons and complaint, per 735 ILCS 5/2-201-203. A sheriff’s deputy or private
process server hands summons and complaint to defendant, then files an affidavit describing
the date, place, and person. In most cases, this routine matter proceeds now as it did in
Lincoln’s day.
Papers must also be served when courts issue civil contempt orders requiring a respondent to
appear and show cause (735 ILCS 5/12-107.5), in citation proceedings, and at stages of
foreclosure proceedings. This article addresses alternatives to personal service when the person
to be served evades service or cannot be found.
The law of service is rooted in due process. In Mullane v. Central Hanover Bank Trust Co.,
339 U.S. 306 (1950), the court said due process requires notice “reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the action and afford
them the opportunity to present their objections…[T]he right to be heard has little reality or
worth unless one is informed the matter is pending and can choose for himself whether to
appear.” Mullane, 339 U.S., at 314.
What begins with direct reference to a right to know and participate often becomes a game.
Litigants, lawyers, and courts have at times treated personal service as an absolute requirement
and suffered evasion by parties who well know what they avoid. Our appellate courts have
said, however, that service and avoidance is not a game. In Marriage of Schmitt, 321 Ill. App.
3d 360 (2d Dist. 2001), the court wrote, “courts do not favor those who seek to evade service
of summons. (citation omitted)”
735 ILCS 5/2-203.1 provides the alternative to personal service on evasive and unfound
defendants. Without notice, the plaintiff may ask the court to approve an alternative method of
service. The movant must provide an affidavit explaining what has been done to find and serve
the defendant and why personal and abode service are not practical. The affidavit must show
that diligent and reasonable efforts and inquiries to find and serve have been undertaken. Upon
such showing, “[t]he court may order service to be made in any manner consistent with due
process.” Supreme Court Rule 104(c) adds the requirement of “good cause shown”.
In what the Schmitt court describes as the first case decided under section 203.1, Mugavero v.
Kenzler, 739 N.E.2d 979 (2d Dist. 2000) reversed when the trial court allowed substitute
service on the Illinois Secretary of State in a civil action arising from a traffic accident. The
process server’s affidavit said only that the defendant had moved from the address on the
affidavit without leaving a forwarding address. The affidavit failed to set out efforts to locate
the defendant or serve him at any other place. The court said that 203.1 requires strict
compliance in the affidavit filed.
Schmitt sets out a guide to success using 203.1. There, five months after filing for divorce,
plaintiff had not served defendant, whom, they alleged, had engaged in a course of concealing
and dissipating assets. Original and two alias summonses were returned unserved. Counsel’s
affidavit in support of their 203.1 request for alternative service methods detailed their efforts.
They had two detective agencies look for the defendant, and made more than eleven attempts
to serve at a residence, two business locations, the county courthouse, and a bar. They
surveilled an employee and paramour of the husband, one Ms. Bonee. They suggested to the
court that they could serve the defendant’s mother, the paramour/employee, and two lawyers
who had previously represented defendant in a dismissed dissolution proceeding in another
county and an annexation matter for one of his companies. The court ordered that plaintiff
serve, by personal delivery and mail delivery, two of the four, at least one of them being one
of the lawyers. Plaintiff served Ms. Bonee, one lawyer, and the secretary of the other lawyer.
The trial court denied defendant’s motion to quash service. Upholding the service against
claims the method employed violated both due process and 203.1, the appellate court noted
that the affidavit and hearing following the motion to quash revealed evidence of active evasion
of service, a motive for evasion (the wish to conceal and dissipate assets), diligent inquiry into
whereabouts, and reasonable efforts to serve in spite of evasion. The lesson here is that the
203.1 affidavit should set out details of efforts.
In Waller v. Harrison, 810 N.E.2d 589 (2d Dist. 2004), the court affirmed when alternative
service was obtained by publication and regular mail. The state sought injunctive relief to clean
up tires and petroleum waste, and fines for violating environmental laws. The affidavit filed
by an attorney for the state said they had tried service at three addresses. One address had been
determined in researching the buyer of the subject property. The other two were found by
means not described in the affidavit. An effort was also made to serve at the county courthouse.
The affidavit stated in a conclusory manner that diligent efforts had been undertaken, but did
not describe them. The appellate court said that the efforts described in the affidavit were
sufficient for the trial court to infer that the defendant could not be located. The court described
the efforts undertaken in Schmitt as “extraordinary,” and noted that such efforts are not always
required. Waller, 810 N.E.2d, at 982.
Waller also discusses the standard of review. If the matter is only a question of law, the
standard is de novo. When the review is of mixed questions of law and fact, the standard is
whether the trial court’s ruling was clearly erroneous. The lesson for a proponent of 203.1
alternative service is to ask for an evidentiary hearing if the service is later challenged. Call
your process server for sworn testimony as to inquiry and efforts to serve, so that the standard
of review will be the more deferential “clearly erroneous” standard.
Federal courts follow state statutes regarding service. Fed. R. Civil Procedure 4(e)(1). Rule 4
prefers the genteel practice of notifying the opposing party directly and asking them to accept
service and appear. Upon refusal by the defendant, the rule requires personal service or abode
service. Failing either of those, one may resort to, “any other manner of serving process
permitted by the law of the state where the district court sits.” In Hotel Employees v. Printer’s
Row, LLC, 06 C 4630 (N.D. Ill. Dec. 5, 2008), the court ordered service upon the defendant’s
current attorney by delivery, first class mail, and certified mail. The court noted that the
defendant had actively evaded process. Even the defendant’s affidavit challenging service
denied connection with the addresses plaintiff had tried, but did not disclose where he currently
lived or could be found.
In Fifth Third Bank v. Malone, 09 CV 6578 (N.D. Ill. Jan. 20, 2010), the court ordered service
on a current lawyer for the defendant in a different case.
Two post-Schmitt cases illustrate how not to proceed in seeking alternative service. In Sutton
v. Ekong, 994 N.E.2d 589 (1st Dist. 2013), the appellate court reversed where the trial court
authorized service on the Secretary of State in a traffic accident case. The appellate court noted
that the record showed a failure to attempt service at the defendant’s “easily obtainable
business address.” 994 N.E.2d at 595. The defendant’s motion to vacate the default judgment
included a report that had been prepared for plaintiff prior to suit for the purpose of determining
insurance and assets. The report noted defendant is an osteopath with a practice address listed
in the report and the phone book. (The court does not explain what it means by “phone book”
in the opinion, so this could mean an antiquated paper tome, or an online directory.) The lesson
of Ekong is that one must follow all reasonable leads and attempt personal service on the
evading party. Absent that, even a showing that the defendant likely had actual knowledge will
not suffice. That aspect of service-as-game still holds.
The second case illustrating how not to do it is Thompson v. Ross Dialysis – Englewood, LLC,
86 N.E.3d 1132 (1st Dist. 2017). There, plaintiffs served the wrong person, and defendant
succeeded in quashing service. Her affidavit in support stated she did not live at the address
where the wrong person was served, in Markham, and stated that she lived at a specified
address in Joliet. Thereafter, the plaintiff again tried to serve defendant at the Markham
address. After failure, they sought, and the court granted, an order for alternative service by
posting and certified mail at the Markham address. The lesson here is if the defendant says
where she lives, serve there.
The Illinois Supreme Court has said that before service by publication in a juvenile case, one
must conduct the search or investigation a diligent person intent on ascertaining facts would
make. In re Dar. C., 957 N.E.2d 898 (Ill. 2011). There, the state served a father by publication
when they conducted computer searches but did not visit addresses disclosed by those searches,
Some letters to the addresses were returned to the state and others were not, but none produced
any response. At the same time in a different case, the state negotiated an agreement in a child
support case against the father. During the juvenile proceedings, the father called the mother
during a period of supervised visitation. The supervising social worker directed the mother to
end the call, but did not seek to speak to the father or get his information (though the mother
refused to provide any contact information). In Dar. C., the father denied knowing about the
proceedings, though the opinion is unclear on how he knew to call during a supervised
visitation. The court said a diligent person wanting to locate and serve would have gone to the
addresses disclosed in the investigation, rather than simply mailing letters there. The court also
noted his impaired ability to participate because he was on social security disability for mental
illness.
The case law largely ignores the changes technology has brought to how the world gets
information and how we communicate. A legal notice in a print newspaper is unlikely to find
a reader today. A post on a social media platform would work far better. Serving at a house is
no longer a matter of waiting outside for someone to answer the door. Homes typically have
doorbell cameras, and rarely will someone open the door to a stranger without an explanation
of the reason for calling. One home I served had no vegetation between the home (large, brick,
with blacked-out windows) and the street, had two cameras on every exterior wall, and one
camera pointed at the front door.
One federal case recognizing modern reality, by necessity, is Transamerica Corp. v.
Transamerica Multiservices, Inc., 1:18 – CV – 22483 (S.D. Fla. 2018). This is one of many
suits in which Transamerica has defended its trademark name. Here, the defendant was an
online business. Transamerica attempted service of the complaint at the
address the defendant corporation registered with the Florida Secretary of State, but the address
was fictitious. The registered agent was not found at their last known address. Defendant had,
however, responded to emails from the plaintiff. The court allowed service by email at the
address used by defendant, saying that service must satisfy due process, and the Constitution
does not mandate personal service or any other specific method of service. Dues process only
requires that service be reasonably calculated to apprise parties of the action.
SUMMARY. Diligence in attempting service requires diligent investigation to find the target
and diligent efforts to personally serve. In Sutton, plaintiff failed to look in the phone book,
so their investigation was not diligent. In Thompson, plaintiff knew where defendant was,
because she told them, but they did not go there. Follow all leads to determine possible
addresses, using all publicly available data sources. Then go to all those places, even if you are
sure the target is avoiding you. If you still do not have service, set out in detail what you did
to find and serve, by listing databases and sources consulted, then detailing dates, times, and
places of attempts to serve. Once you know a target is aware of service attempts and is
avoiding, make reasonable attempts and give them a chance. If you go to a place of business,
leave a card. Leave a note and papers at the door of the home. When you later file an affidavit
seeking alternative service under 203.1, set out these facts to show that the defendant is likely
aware of the matter and is actively evading service.
When you draft your motion for alternative service, suggest all reasonable methods. If you
have several home and business addresses, email addresses, addresses of relatives or attorneys,
offer to deliver and mail to all of them, posting if necessary. Search for social media presence
on all the major platforms, and offer to serve via the platform’s message service or by a tagged
post. If your motion for alternative service is granted, include a copy of the order with every
service attempt, so the responding party cannot later claim they did not know the alternative
method of service would satisfy the court.
The author:
Martin Coonen is a retired lawyer admitted in 1984, and a licensed private detective (Northern
Illinois Investigations, LLC) in Illinois. He can be found on Facebook and email at
[email protected]
January 25, 2023
