Illinois Bar Journal

June 2014Volume 102Number 6Page 262

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Best of Discussions

Substitute Service of Process - Like Father, Like Son?

Is substitute service of process valid if it's on the defendant's father, in the defendant's driveway? Here's an answer gleaned from the ISBA litigation discussion group.

ISBA discussion groups let you pose questions to and share information with lawyers from Chicago to Cairo. Join at www.isba.org/discussions.

Substitute service on the defendant's father in the defendant's driveway - is it valid?

David W. Schopp, Aurora. A defendant can be served at his usual place of abode by leaving a copy with a member of the family or person at least 13 years old residing there. Case law says that the family member need not reside there.

But what are your thoughts on this: Defendant's father (who does not reside with defendant) was served while in his car backing out of defendant's driveway. Special process server knocks on car window and asks if father is the defendant.

Father says he is John Doe, Sr. and not John Doe, Jr. (the defendant). When asked if father knows the location of defendant, father further states that he did not know where defendant was, even though defendant was also in the car.

1. Was defendant served via substitute service at his usual place of abode?

2. What would be the ramifications, if any, of the father admitting, under oath, that he lied to the special process server?

An ISBA lawyer responds

Fred Nickl, Chicago. Lying to a process server = shoulder shrug. As long as [the father] admits it and doesn't testify or sign an affidavit that perpetuates the lie.

Abode service: we give a seminar to private detectives and their investigators (process servers) on service. Your question is unique to us, but I would use the cases that say:

• A defendant's "usual place of abode" is, generally, where that person lives. The key consideration is whether delivering service there is "reasonably likely to provide the respondent with actual notice of the proceedings." United Bank of Loves Park v. Dohm, 115 Ill. App. 3d 286 (2d Dist. 1983).

• [in arguing that] the property surrounding the residence [i.e., the driveway] is fair game, [note that] the front porch and stairs are fair game already….

• But maybe a better analogy is: One may serve the doorman of the defendant's apartment building only when the intended recipient is intentionally refusing to come to the lobby to accept service. See Harrell v. Bower Motors, Inc. 2004 WL1745758 (N.D. Ill. July 30, 2004).

Keep in mind:

• The server must inform the person served of the contents of the summons. Tomaszewski v. George, 1 Ill. App. 2d 22 (1st Dist. 1953).

• It is enough to identify the documents (i.e., a summons and complaint), state from which court they were issued, and give the court date. Freund Equipment, Inc. v. Fox, 301 Ill. App. 3d 163 (2d Dist. 1998).

• The server must also later mail a copy of the summons to the defendant. Tomaszewski. However, the person who makes delivery to the abode need not be the same person who mails the documents. Mid-America Federal Savings & Loan Ass'n v. Kosiewicz, 170 Ill. App. 3d 316 (2d Dist. 1988).

• You must send a copy of the complaint and summons to each individual defendant in a separate envelope. Even if the defendants live together, each must be mailed separately. Central Mortgage Co. v. Kamarauli, 2012 IL App. (1st) 112353 (Ill. App. 1st Dist. Nov. 5, 2012).

• Family members (as defined by Anchor Finance Corp. v. Miller):

(1) The whole body of persons who form one household, thus embracing servants;

(2) parents with their children, whether they dwell together or not; and

(3) the whole group of persons closely related by blood.

• Maid or housekeeper is family, Lewis v. West Side Trust & Savings Bank, 286 Ill. App. 130 (1st Dist. 1936).

• Service on in-laws is probably good service. Citimortgage v. Lubowicki.

• Girlfriend/boyfriend? Probably not good service.

• Cousins? Aunts? Uncles? Case law has not determined what "closely related by blood" means in the context of service of process.

Member Comments (1)

If the special process server was in the driveway of the defendant's home, and the defendant was in his father's car in the driveway when the father was handed a summons and complaint, but the father lies, and says the defendant is not with him, when the defendant is in fact, with him, then I don't see any problem with this being proper service.

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