Annuity Plan of the International Union of Operating Engineers Local No. 649 v. Accurate Site Specialists, Inc.

Filing 21

ORDER in re service of Amended Complaint. Entered by Magistrate Judge Jonathan E. Hawley on 10/13/16. (MK1, ilcd)

E-FILED

Thursday, 13 October, 2016 01:43:36 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
ANNUITY PLAN OF THE
INTERNATIONAL UNION OF
OPERATING ENGINEERS LOCAL
No. 649,
Plaintiff,

Case No. 1:15-cv-01381-JES-JEH

v.
ACCURATE SITE SPECIALISTS,
INC.,
Defendant.

Order
Upon reviewing the Plaintiff’s Certificate of Service (Doc. 20) for the service
of the Amended Complaint, the Court determines that the Defendant was not
properly served. For the reasons stated in this Order, the Plaintiff is directed to
personally serve the Defendant pursuant to Rule 4.
In the instant case, the Court entered an Order of Default (Doc. 7) against
the Defendant. The Court further ordered the Defendant to produce specific
records to the Plaintiff. At the Show Cause hearing, the Defendant was directed
to produce records to the Plaintiff and the Plaintiff was required to subsequently
file a status report. (ECF 05/11/16). The Plaintiff filed a status report (Doc. 17),
indicating that the Defendant had provided a portion of the records. Further, the
Plaintiff requested a continuance to file an amended pleading based on results of
an audit on the records if necessary. On July 15, 2016, the Plaintiff filed an
Amended Complaint (Doc. 19) and an accompanying Certificate of Service (Doc.
20).
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Generally, service is not required “on a party who is in default for failing to
appear,” except when such a pleading “asserts a new claim for relief against such
a party must be served on that party under Rule 4.” Fed. R. Civ. P. 5(a)(2).
According to Rule 4(e)(1), service may be effected “pursuant to the law of the state
in which the district is located.” Illinois law provides that “a private corporation
can 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 Ill. Comp.
Stat. 5/2-204. Under Rule 4(h), service on a corporation is valid if it complies with
Rule 4(e)(1) or a copy of the summons and the complaint is delivered “to an officer,
a managing or general agent, or any agent authorized by appointment or by law
to receive service of process.”
Although the Amended Complaint falls into the category of an amended
pleading, the Amended Complaint contains a different prayer for relief.
Specifically, the Amended Complaint asks for damages determined by the audit
of the Defendant’s records. Due to the new claims in the Amended Complaint, the
Court finds that Rule 4 applies, and the Plaintiff must serve the Defendant
accordingly. In the Certificate of Service, the Plaintiff indicated that a copy was
sent to the Defendant’s business address. This is not proper service under Rule 4,
which requires personal service.
Accordingly, the Plaintiff is directed to submit summons to Clerk’s office
for issuance.
It is so ordered.
Entered on October 13, 2016
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE
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