013 motion for leave re alternative service

7/31/2019 013 Motion for Leave Re Alternative Service

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PAMELA HUTUL, )

)Plaintiff, ) No. 12-cv-01811

)

v. ) Judge Robert W. Gettleman

)DANIEL MAHER, ) Magistrate Judge Arlander Keys

)

Defendant. )

MOTION FOR LEAVE TO OBTAIN SERVICE OF PROCESS

THROUGH ALTERNATIVE MEANS

Pursuant to Rule 4(e)(1) of the Federal Rules of Civil Procedure and 5/2-203.1 of the

Illinois Code of Civil Procedure (the Code), Plaintiff Pamela Hutul (Plaintiff) moves this

Court to grant her leave to obtain substitute service of process on Defendant Daniel Maher. In

support of her Motion, Plaintiff states as follows:

ARGUMENT

This Court should allow Plaintiff to obtain service of process on the Defendant through

alternative means. The Defendant has engaged in a course of conduct designed to harm the

Plaintiff and to do so without providing Plaintiff any recourse. The Named Defendant has

inundated the Internet with fraudulent reviews of the Plaintiff on several websites, impersonated

a colleague of the Plaintiff, a former colleague of the Plaintiff, a member of the legal profession,

and other individuals. These reviews are devoted solely to harming the Plaintiff with

defamatory statements directly affecting Plaintiffs profession and trade in the legal community

(Defamatory Posts).

Case: 1:12-cv-01811 Document #: 13 Filed: 06/28/12 Page 1 of 8 PageID #:113


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As to identifying the individual responsible for the posts, the poster identified himself on

the posts only with an amalgamation of a first name and last initial (Danm), the pseudonym

Paul, or altogether anonymously. This precluded the Plaintiff from identifying him by the

posts themselves. However, through discovery, the Plaintiff has identified the Named Defendant

as Daniel Maher and obtained an electronic mail address used by Daniel Maher in the creation of

the Defamatory Posts. Sending electronic communication to this electronic mail address can

suffice as an alternative means of advising Daniel Maher of the litigation and his involvement

therewith. As such, the Plaintiff moves this Court to allow such alternative means to suffice for

purposes of having Daniel Maher served pursuant to the applicable rules.

Standard for Service of Process

Service of process must comport with the Fourteenth Amendment such that notice is

reasonably calculated, under all the circumstances, to apprise interested parties of the pendency

of the action and afford them an opportunity to present their objections. Mullane v. Central

Hanover Bank & Trust Co.,339 U.S. 306, 315 (1950). Rule 4(e) of the Federal Rules of Civil

Procedure provides for such notice.1 In addition, Rule 4(e)(1) provides that service of process

may be made through the law of the state where the district court is located or in which service

is made. See FRCP 4(e)(1). In this case, Illinois law applies.

In Illinois, 5/2-203(a) of the Code governs service of process on individuals.2 It states

in relevant part:

1Rule 4(e)(2) provides that service may be obtained by delivering a copy of the summons and of the complaint tothe individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with

some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the

complaint to an agent authorized by appointment or by law to receive service of process. See FRCP 4(e)(2).

2 Although 2-208 of the Code governs service of individuals outside the State, it states that the service of

summons shall be made in a like manner as service within this State, by any person over 18 years of age not a party

to the action. As such, 2-203(a) is applicable to the instant circumstances.



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[e]xcept as otherwise expressly provided, service of summons upon an individualdefendant shall be made (1) by leaving a copy of the summons with the

defendant personally, (2) by leaving a copy at the defendants usual place of

abode, with some person of the family or a person residing there, of the age of 13years or upwards, and informing that person of the contents of the summons,

provided the officer or other person making service shall also send a copy of thesummons in a sealed envelope with postage fully prepaid, addressed to thedefendant at his or her usual place of abode . . . .

735 ILCS 5/2-203(a). Where service of process has been made impractical under 2-203(a)(1)

and (2), 2-203.1 provides that:

the plaintiff may move, without notice, that the court enter an order directing acomparable method of service. The motion shall be accompanied with an affidavit

stating the nature and extent of the investigation made to determine the

whereabouts of the defendant and the reasons why service is impractical underitems (1) and (2) of subsection (a) of Section 2-203, including a specific statement

showing that a diligent inquiry as to the location of the individual defendant wasmade and reasonable efforts to make service have been unsuccessful. The court

may order service to be made in any manner consistent with due process.

735 ILCS 5/2-203.1. Consequently, Illinois law provides the Court with discretion to accept

and/or order substitute service of process in any manner consistent with due process that is

reasonably calculated to apprise interested parties of the pendency of the action. Id.

Substitute service may be obtained through a variety of methods consistent with 2-

203.1 and due process. This Court held that proper substitute service had been obtained by

having the summons and complaint delivered through certified mail, return receipt requested, to

a defendants business and residential addresses. United General Title Ins. Co. v. Tyer, Case No.

00 C 50453, 2001 U.S. Dist. LEXIS 5807, *2 (N.D. Ill. May 4, 2001) (citing Swaim v. Molton

Company, 73 F. 3d 711, 715-716 (7th Cir. 1996) (acceptable service obtained where the

summons and complaint had been sent certified mail, return receipt requested, despite the notices

being returned and marked as refused)). The Court also noted that the plaintiff had made the

additional step of having the summons and complaint posted at the defendants front door. Id.



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Additionally, this Court has held that emailing the summons and petition to a particular email

address constituted a proper alternative means of service under 2-203.1. See Save-A-Life

Found., Inc. v. Heimlich, 601 F. Supp. 2d 1005, 1007 (N.D. Ill. 2009) (referring to the Circuit

Court of Cook County granting this particular method of service under 2-203.1).

Discovery Efforts and Results in Identifying Defendants

Here, Plaintiff has pursued significant efforts to determine the identity of the defendant

for purposes of obtaining service of process upon him. In an effort to obtain more information

about the Defendant, the Plaintiff sought and obtained leave to conduct expedited discovery.

Order dated March 16, 2012 (Doc. #8); Declaration of Charles Lee Mudd Jr. (Mudd Decl.) 3.

Through production in response to a subpoena served upon Yelp!, Inc. (Yelp), one of the

websites on which Daniel Maher made the Posts, the Plaintiff obtained the email address

([email protected]) used to create the Danm Yelp account. Mudd Decl. 5. Daniel

Maher provided this email address to Yelp when he created his Yelp account. Id. Furthermore,

through production in response to a subpoena issued to Ripoffreport.com, the Plaintiff learned

that the user Dan who created the Defamatory Posts on Ripoffreport.com provided the same

email address, [email protected], when creating his account at that website. Id. 6.

Defendant also provided his full name, Daniel Maher, to Ripoffreport.com when creating his

account. Id. 7. It should be noted that the Plaintiff posted information about the litigation and

the discovery efforts on Ripoffreport.com as a rebuttal to Daniel Maher's post about the Plaintiff.

Id. 8.

After learning of the email address [email protected], counsel for the Plaintiff

issued a subpoena to Yahoo!, Inc. (Yahoo) for information about the account associated with

that email address. Mudd Decl. 9. Yahoo produced documents identifying Daniel Maher as



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the individual associated with the email address [email protected]. Id. 10. Through

the foregoing, the email address [email protected] belongs to Daniel Maher and has

been used by him to create accounts he used to post Defamatory Statements to certain websites.

See supra.

Analysis

Clearly, the Named Defendant did not want to be identified by the Defamatory Posts

alone. See supra. Given his efforts to evade detection and hide his identity, service by means

under 2-203(a) was impractical. Undaunted, the Plaintiff made significant efforts to determine

the actual identity of the Named Defendant through discovery. In pursuing discovery, the

Plaintiff posted content about the litigation in response or rebuttal to the post on

Ripoffreport.com. Fortunately, the discovery succeeded in obtaining his name and email

address. See supra.

With Daniel Mahers email address, there now does exist an electronic means of

communicating with the Defendant. See supra. Electronic communications have been found to

be a proper means of obtaining substitute service of process. See Save-A-Life Found., Inc., 601

F. Supp. 2d at 1007. Consequently, the Court should allow Plaintiff to obtain substitute service

on the Defendant pursuant to Rule 4(e)(1) of the Federal Rules and 5/2-203.1 of the Code so

that Plaintiff may move forward with her claims against him. Id. Specifically, the Court should

allow Plaintiff to effectuate proper service upon the Defendant by sending a copy of the

Summons and Amended Complaint to [email protected]

Id. Such service comports

with due process because it is reasonably calculated to apprise the Defendant of the pendency of

3Unfortunately, Ripoffreport.com apparently does not permit direct communications to other individuals using the

services. As for Yelp, it appears one needs to be a friend to send direct messages to a user. As such, direct

communication with Daniel Maher through theses sites is not possible. That being said, as stated above, counsel for

Plaintiff did post information related this litigation in response to Daniel Mahers post on Ripoffreport.com. Mudd.

Decl. 8.



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this action and afford him an opportunity to present his objections. Indeed, he used this email

address to create the accounts he used to make the Defamatory Posts. Therefore, this Court

should grant Plaintiffs motion for leave to obtain service of process through alternative means.

Id.; Save-A-Life Found., Inc., 601 F. Supp. 2d at 1007.



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CONCLUSION

WHEREFORE, for the foregoing reasons, the Plaintiff moves this Court to grant her

Motion for Leave to Obtain Service of Process through Alternative Means and allow service to

be made upon Daniel Maher by sending electronic communications containing the amended

complaint, summons, and any applicable orders to [email protected]

Dated: Chicago, Illinois Respectfully submitted,

June 28, 2012PLAINTIFF,

PAMELA HUTUL

By: /s/Charles Lee Mudd Jr.

One of Her Attorneys

Charles Lee Mudd Jr.Mudd Law Offices

3114 West Irving Park Road

Suite 1WChicago, Illinois 60618

773.588.5410 (telephone)773.588.5440 (facsimile)

[email protected]

ARDC: 657957



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CERTIFICATE OF SERVICE

This is to certify that service of this MOTION FOR LEAVE TO OBTAIN SERVICE OF

PROCESS THROUGH ALTERNATIVE MEANS was accomplished pursuant to Electronic

Case Filing as to ECF Users and shall be served upon other parties having filed appearances,

identified below, via postage pre-paid U.S. mail on the 28 day of June 2012.

No other parties have filed appearances.

/s/Charles Lee Mudd Jr.Charles Lee Mudd Jr.

Attorney for Plaintiff

Charles Lee Mudd Jr.

Mudd Law Offices3114 West Irving Park Road

Suite 1W

Chicago, Illinois 60618

773.588.5410 (telephone)773.588.5440 (facsimile)

[email protected]

ARDC: 6257957



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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PAMELA HUTUL, )

)Plaintiff, ) No. 12-cv-01811

)

v. ) Judge Robert W. Gettleman

)DANIEL MAHER, ) Magistrate Judge Arlander Keys

)

Defendant. )

DECLARATION OF CHARLES LEE MUDD JR.

I, Charles Lee Mudd Jr., do hereby declare, testify and state as follows:

1. I am an attorney licensed to practice in the States of Illinois, Indiana, Connecticutand Utah.

2. I represent Pamela Hutul (Plaintiff) in the above captioned litigation.3. On March 16, 2012, this Court allowed the Plaintiff to proceed with limited,

expedited discovery. (Dkt. No. 8).

4. Being allowed to proceed with limited, expedited discovery, I served subpoenasupon Yelp!, Inc. (Yelp) and Ripoffreport.com seeking information relating to the defamatory

posts made on those websites about the Plaintiff (the Defamatory Statements).

5. In response to the subpoena served upon it, Yelp produced documents identifyingthe email address used to create the Danm Yelp account as [email protected].

6. In response to the subpoena served upon it, Ripoffreport.com produceddocuments identifying the email address used to create the Dan Ripoffreport.com account as

[email protected].

Case: 1:12-cv-01811 Document #: 13-1 Filed: 06/28/12 Page 1 of 2 PageID #:121


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7. The documentation from Ripoffreport.com also identified a full name, DanielMaher, provided to Ripoffreport.com by the Defendant when creating his account.

8. My firm posted information about the litigation and the discovery efforts onRipoffreport.com as a rebuttal to Daniel Mahers post about the Plaintiff.

9. In response to the information received from Yelp and Ripoffreport.com, I serveda subpoena upon Yahoo!, Inc. (Yahoo) seeking information related to the

[email protected] email address.

10. In response to the subpoena served upon it, Yahoo produced documentsidentifying Daniel Maher as the individual associated with the email address

[email protected].

11. Throughout the documents produced by Yelp, Yahoo, and Ripoffreport.com, thename Daniel Maher and the accompanying email address remained consistent. The name Daniel

Maher also remained consistent with the pseudonyms Danm and Dan used on the websites.

Based on this information, my firm and I amended the Complaint in the above-captioned action

to add Daniel Maher as the defendant.

I declare under penalty of perjury under the laws of the United States that the foregoing is

true and correct.

Dated this 28 day of June 2012

Charles Lee Mudd Jr.

Case: 1:12-cv-01811 Document #: 13-1 Filed: 06/28/12 Page 2 of 2 PageID #:122

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