Painters District Council #58 401(k) Trust Fund et al v. Jennings Bros., Inc.
Filing
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OPINION entered by Judge Sue E. Myerscough on 3/21/2016. Defendant's Special and Limited Appearance, d/e 7 , which the Court treats as a Motion to Dismiss, is DENIED. Defendant shall answer or otherwise plead on or before April 4, 2016. (MAS, ilcd)
E-FILED
Tuesday, 22 March, 2016 03:49:45 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PAINTERS DISTRICT COUNCIL
NO. 58 TRUST FUND, et al.
Plaintiffs,
v.
JENNINGS BROS., INC.,
Defendant.
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No. 15-cv-03343
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Defendant Jennings Bros.,
Inc.’s Special and Limited Appearance (d/e 7), which the Court
construes as a Motion to Dismiss. The Motion is DENIED. A
dissolved corporation can be sued for a period of five years after its
dissolution and dissolution does not abate a pending case.
Moreover, service on the registered agent on record with the Illinois
Secretary of State as of the date of dissolution was proper.
I. BACKGROUND
On December 7, 2015, Plaintiffs Painters District Council No.
58 401(k) Trust Fund; Painters District Council No. 58 Fringe
Benefit Funds; International Painters and Allied Trades Industry
Pension Fund; and Illinois State Painters Health and Welfare Fund
filed a Complaint against Defendant Jennings Bros., Inc. under the
Employment Retirement Income Security Act of 1974 (ERISA) for
delinquent fringe benefit contributions. On December 8, 2015,
summons was issued to “Constance C. Jennings, Registered Agent,
JENNINGS BROS., INC.” and forwarded to Plaintiffs’ attorney for
service (d/e 3). On January 11, 2016, summons was returned
executed (d/e 5). The proof of service reflects that personal service
was made on Constance C. Jennings on January 7, 2016. Id.
On February 11, 2016, after receiving an extension of time to
respond to the Complaint, Defendant’s counsel filed a “Special and
Limited Appearance” (d/e 7) which appeared on the docket as a
“Notice of Appearance of Attorney.” In the Special and Limited
Appearance, Defendant challenges Defendant’s capacity to be sued
and objects to service of process on Jennings. Defendant asserts
that, effective December 11, 2015, Defendant corporation was
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involuntarily dissolved by the Illinois Secretary of State. Defendant
asserts that, because the corporation ceased to exist at the latest
on December 11, 2015, Defendant had no capacity to be sued, and
Jennings was no longer a registered agent subject to service of
process. Defendant requests that the Court quash service of
summons and dismiss the Complaint for lack of jurisdiction over
Defendant.
On March 8, 2016, after receiving an extension of time to
respond, Plaintiffs responded to what Plaintiffs characterized as
Defendant’s Motion to Dismiss (d/e 9). After expressing
uncertainty as to the Rule under which Defendant’s motion is
brought, Plaintiffs assert that Defendant clearly had the capacity
to be sued, and Plaintiffs properly effected service of the
Complaint.
II. ANALYSIS
The Court initially notes that the purpose of Rule 12(b),
which provides how a defense must be asserted, was to eliminate
the need for special appearances to challenge jurisdiction.
Beveridge v. Mid-West Mgmt., Inc., 78 F. Supp. 2d 739, 742 (N.D.
Ill. 1999); see also United States v. Republic Marine, Inc., 829 F.2d
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1399, 1402 (7th Cir. 1987) (“the general rule in civil cases is now
(and has been for some time) that any appearance in an action is a
general appearance”). As such, Defendant improperly filed a
Special and Limited Appearance as opposed to a motion to dismiss.
The Court also notes that the Court’s Local Rules require that a
motion raising a question of law include a memorandum of law:
Every motion raising a question of law (except summary
judgment motions, which are governed by Subparagraph
(D) of this Rule) must include a memorandum of law
including a brief statement of the specific points or
propositions of law and supporting authorities upon
which the moving party relies, and identify the Rule
under which the motion is filed.
CDIL-LR 7.1(B)(1). Defendant did not comply with the Local Rule.
However, Plaintiffs do not object on those grounds. Moreover,
the Court agrees with Plaintiffs that the Motion should be denied
on the merits.
The capacity of a corporation to sue or be sued is determined
by the law under which it was organized. Fed.R.Civ.P. 17(b)(2).
Defendant was organized under Illinois law. See Pls. Response,
Exhibit 1 (Corporation File Detail Report) (d/e 9-1). Therefore,
Illinois law determines whether Defendant has the capacity to be
sued.
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Under Illinois law, dissolution of a corporation does not
prevent suit against the corporation in its corporate name or abate
a civil, criminal or other proceeding pending against the
corporation on the effective date of dissolution. 805 ILCS
5/12.30(c)(4), (c)(5). Here, the case was filed December 7, 2015
and was pending on the effective date of the dissolution,
December 11, 2015. Therefore, dissolution did not abate this
cause of action. Moreover, even if the case were not considered
pending before the dissolution, a suit may be brought against a
dissolved corporation within five years after the date of dissolution.
805 ILCS 5/12.80. Plaintiffs filed this action well within the fiveyear period. Consequently, Defendant has the capacity to be sued
in this case.
The Court also finds that Plaintiffs properly served Defendant
by serving Defendant’s registered agent, Constance C. Jennings.
See Pls. Mot., Exhibit 1 (d/e 9-1) (Corporation File Detail Report
Showing Constance C. Jennings as the agent and president of the
corporation); see also http://www.ilsos.gov/corporatellc/
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(last visited March 21, 2016). By Illinois statute, the registered
agent of a corporation upon dissolution is an agent of the
corporation upon whom service of process can be had unless the
agent resigns or the corporation reports a change of registered
agent:
In the event of dissolution of a corporation, either
voluntary, administrative, or judicial, the registered
agent and the registered office of the corporation on
record with the Secretary of State on the date of the
issuance of the certificate or judgment of dissolution
shall be an agent of the corporation upon whom claims
can be served or service of process can be had during
the 5-year, post-dissolution period provided in Section
12.80 of this Act, unless such agent resigns or the
corporation properly reports a change of registered office
or registered agent.
805 ILCS 5/5.05; see also 805 ILCS 5/5.25(b) (providing the
circumstances under which process may be served on the
Secretary of State); Fed.R.Civ.P. 4(h)(1)(A), (B) (providing for service
upon a corporation in a judicial district of the United States either
in the manner prescribed by Rule 4(e)(1) for serving an individual
or delivering a copy of the summons and the complaint to an agent
authorized by appointment or law).
Here, Plaintiffs served the registered agent on file with the
Secretary of State on the date of dissolution, and Defendant has
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presented no evidence that the registered agent resigned or that
Defendant reported a change of registered agent. Therefore,
service on Jennings, Defendant’s registered agent, was
appropriate.
III. CONCLUSION
For the reasons stated, Defendant’s Special and Limited
Appearance (d/e 7), which the Court treats as a Motion to Dismiss,
is DENIED. Defendant shall answer or otherwise plead on or
before April 4, 2016.
ENTER: March 21, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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