Lee v. Rockford Metro et al

Filing 87

ORDER: Plaintiff's motion for default judgment 86 is denied. Plaintiff is ordered to show cause by 4/25/2014 at 2:00 p.m. why defendants "Rockford Metro Police" and Michael Novay should not be dismissed pursuant to Fed. R. Civ. P. 4(m) for failure to effectuate proper service on these defendants. [See STATEMENT] Signed by the Honorable Frederick J. Kapala on 4/22/2014. Mailed notice (jp, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Henry Lee,
Plaintiff,
v.
Rockford Metro, et al.,
Defendants.

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Case No: 08 C 50212

Judge Frederick J. Kapala

ORDER
Plaintiff’s motion for default judgment [86] is denied. Plaintiff is ordered to show cause by
4/25/2014 at 2:00 p.m. why defendants “Rockford Metro Police” and Michael Novay should not be
dismissed pursuant to Fed. R. Civ. P. 4(m) for failure to effectuate proper service on these
defendants.
STATEMENT
Currently before the court is plaintiff’s amended motion for default judgment against
defendant, “Rockford Metro Police,” in which plaintiff alleges that defendant was served with
process on March 29, 2010, and has failed to plead or otherwise defend. In support of the motion,
plaintiff has attached a return of service indicating that “Rockford Metro Police,” a corporation, was
served by delivering a copy of the summons and complaint on Shelly Russell, who is listed on the
return as an agent of the corporation. Because the court concludes that service was not proper,
plaintiff’s amended motion for default judgment is denied.
Federal Rule of Civil Procedure 4(h) provides, in relevant part, that service on a corporation
can be made by “delivering a copy of the summons and of the complaint to an officer, a managing
or general agent, or any other agent authorized by appointment or by law to receive service of
process . . . .” Fed. R. Civ. P. 4(h). In reviewing whether Shelly Russell was the registered agent
for “Rockford Metro Police” through the corporate database on the Illinois Secretary of State’s
website, available at http://www.ilsos.gov/corporatellc, the court discovered that there is no
corporate entity known as “Rockford Metro Police.” Accordingly, the court declines to issue a
default judgment against a non-existent entity.
After only a brief investigation, the court was able to determine that the corporate entity
plaintiff is attempting to sue is commonly known as Metro Enforcement. A search for that name on
the corporate database reveals an entity named On-line Security Systems, LLC, which is doing
business under the name Metro Enforcement and has a principal place of business at 618 E. State
St. in Rockford, Illinois, the same address to which the summons was directed by plaintiff. That
corporate entity’s registered agent is Dennis A. Wysong, and he has been the registered agent since

at least December 3, 2004. Accordingly, even putting aside that plaintiff has misnamed the
defendant, he still cannot show proper service on the corporation because Shelly Russell is not the
registered agent.
For these reasons, plaintiff’s amended motion for default judgment against “Rockford Metro
Police” is denied. Furthermore, because this case is set for trial next week, the court has reviewed
the remainder of the docket and now orders plaintiff to show cause by April 25, 2014 at 2:00 p.m.
why defendants “Rockford Metro Police” and Michael Novay should not be dismissed pursuant to
Rule 4(m) for failure to effectuate proper service on these defendants. The current operative
complaint in this matter, which is styled an “Amended Complaint” although it is actually a second
amended complaint, has been pending for more than four years and it appears that neither defendant
has been properly served. A Rule 41(a)(1)(A)(i) motion to voluntarily dismiss these defendants
would obviate the need to show cause as ordered herein.

Date: 4/22/2014

ENTER:
_________________________
FREDERICK J. KAPALA
District Judge

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