Illumination Station, Inc. v. Bank of America, N.A. et al

Filing 67

ORDER granting 64 Motion for expedited special order of the court to serve process by alternative means, as set forth. Signed by Honorable Jimm Larry Hendren on August 11, 2011. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
ILLUMINATION STATION, INC.
v.

PLAINTIFF

Civil No. 10-3047

BERMAN INDUSTRIES, INC.;
ILLUMINATION HOME DECOR, LLC;
CASA CREATIONS, INC.;
RJB GROUP, LLC;
RONALD ARMSTRONG; and
ROBERT BERMAN

DEFENDANTS

O R D E R
Now

on

consideration

this

11th

day

of

August,

2011,

comes

on

for

plaintiff's Motion For Expedited Special Order Of The

Court To Serve Process By Alternative Means (document #64), and from
said motion, and the supporting documentation, the Court finds and
orders as follows:
1.

Plaintiff's motion and supporting documentation reflect

the following unsuccessful attempts to serve separate defendants
Robert Berman ("Berman"), and RJB Group, LLC, through its registered
agent Berman:
*

03/28/11 personal service attempted at office;

*

03/30/11 personal service attempted at residence;

*

04/01/11 personal service attempted at residence;

*

04/03/11 personal service attempted at residence;

*

04/04/11 personal service attempted at residence;

*

04/06/11 personal service attempted at residence;

*

04/11/11 personal service attempted at residence;

*

04/16/ll personal service attempted at residence;

*

04/25/11 personal service attempted at office;

*

04/28/11 personal service attempted at residence;

*

07/12/11 personal service attempted at office;

*

07/12/11 personal service attempted at residence;

*

07/14/11 personal service attempted at residence;

*

07/23/11 personal service attempted at office.

The

Affidavits

of

the

Process

Server

indicate

that

these

service attempts were made at various times of the day, and that he
spoke repeatedly with door attendants at the residence building and
employees at the office building, trying to determine when Berman
would be present.

The nature of the responses to the Process

Server's inquiries indicate that the residence and office addresses
are, in fact, those used by Berman.
In light of the multiple unsuccessful attempts at service,
plaintiff seeks leave to perfect service on these defendants by
alternative means.
2.

F.R.C.P. 4(e) allows service on an individual who has not

waived service and is not a minor or an incompetent, by "following
state law for serving a summons in an action brought in courts of
general jurisdiction in the state where . . . service is made."
F.R.C.P. 4(h) makes this form of service applicable to corporations,
partnerships, and unincorporated associations subject to suit under
a common name.
3.

The service in question is to be made in Illinois.

Pursuant to 805 ILCS 5/5.25, service of process on a domestic or
foreign corporation in Illinois may be made by serving the Secretary

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of State "[w]henever the corporation's registered agent cannot with
reasonable diligence be found at the registered office in this
state."
Pursuant to 735 ILCS 5/2-203.1, if service upon an individual
defendant either in person or by leaving a copy at his usual abode
with a person residing there is "impractical . . . the plaintiff may
move, without notice, that the court enter an order directing a
comparable method of service."
4.
registered

The Court finds that plaintiff has demonstrated that the
agent

for

RJB

Group,

LLC,

cannot

"with

reasonable

diligence be found at the registered office," and will authorize
service upon that defendant by serving the Illinois Secretary of
State in accordance with 805 ILCS 5/5.25.
5.

The Court also finds that plaintiff has demonstrated that

both personal and abode service on Berman are impractical, and will
authorize a comparable method of service.
The method proposed by plaintiff is to leave copies of the
Summons and Second Amended Complaint with the door attendant at
Berman's residence building and with "security" at his office, and
to mail copies to him.
The Court finds that this method of service is reasonably
calculated to provide notice. In In re Marriage of Schmitt, 321
Ill.App.3d 360, 747 N.E.2d 524 (Ill. App. 2 Dist. 2001), the court
approved service pursuant to § 2/203.1 by leaving the summons and
complaint with an individual defendant's employee, finding such

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service "sufficient to convey notice" because "it is reasonable to
believe that an employee would advise his employer that he had been
served on the employer's behalf."

321 Ill.App.3d at 370, 747 N.E.2d

at 533. The method proposed by plaintiff is more likely to convey
notice than that approved in Schmitt.
IT IS THEREFORE ORDERED that plaintiff's Motion For Expedited
Special Order Of The Court To Serve Process By Alternative Means
(document #64) is granted.
IT IS FURTHER ORDERED that plaintiff is authorized to serve RJB
Group, LLC, by serving the Illinois Secretary of State in accordance
with 805 ILCS 5/5.25.
IT IS FURTHER ORDERED that plaintiff is authorized to serve
Robert Berman by leaving copies of the Summons and Second Amended
Complaint with the door attendant at Berman's residence building and
with an employee at his office building, as well as mailing copies
to Berman by First Class Mail.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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