United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
Diana Ershow brings this action against Defendant Leslie Kane
& Morgan, Inc., a debt collection agency, alleging
violations of the Fair Debt Collections Practices Act, 15
U.S.C. § 1692 et seq. This matter comes before
the Court on Plaintiff's attorney certification filed in
response to the Court's call for dismissal. ECF No. 7.
There was no oral argument. Fed.R.Civ.P. 78(b). For the
reasons set forth below, Plaintiff's request is
8, 2018, the Court issued a notice of call for dismissal
pursuant to Federal Rule of Civil Procedure 4(m) due to
Plaintiff's failure to effect service of the summons and
complaint within 90 days of the filing of the complaint. In
response, Plaintiff's counsel certifies that Defendant
appears to be evading service and requests that the Court
ratify service of the summons and complaint that has already
occurred. See Att'y Certification in Resp. to
Call for Dismissal (“Att'y Cert.”)
¶¶ 3, 12, ECF No. 7.
January 2018, Plaintiff attempted to personally serve
Defendant at the Illinois address on file with the Illinois
Secretary of State and as indicated by Google Maps on
Defendant's website; however, the building directory did
not list Defendant as a tenant and the process server was
unable to locate Defendant after searching the entire
premises of the building. Id. ¶ 5, Exs. A-C.
Plaintiff next called Defendant, requesting a physical
address, and the person who answered verified the correct
address as a post office box in Homewood, Illinois.
Id. ¶ 6. When Plaintiff pressed for a physical
address, however, the person hung up. Id. Plaintiff
certifies that she has mailed numerous pieces of
correspondence to the post office box address, including a
request to waive service with the summons and complaint, none
of which have been returned as undeliverable. Id.
¶¶ 7- 9. Additionally, Plaintiff emailed the
request, summons and complaint to Defendant at the email
address posted on its website, which was also not returned as
undeliverable. Id. ¶ 9. Plaintiff now moves for
the Court's approval of alternative service pursuant to
Rule of Civil Procedure 4(e)(1) provides that an individual
may be served by “following state law for serving a
summons in an action brought in courts of general
jurisdiction in the state where the district court is located
or where service is made.” Fed.R.Civ.P.
4(e)(1) (emphasis added). “In other words, service upon a
corporation may be made in accordance with the New Jersey
Rules of Court relating to service of process” or, in
this case, the Illinois rules relating to service. See
Signs by Tomorrow-USA, Inc. v. G.W. Engel Co., Inc., No.
05-cv-4353, 2006 WL 2224416, at *3 (D.N.J. Aug. 1, 2006).
Jersey, where personal service of a corporation located
outside of the state is not possible, service by mail is
permissible by “mailing a copy of the summons and
complaint by registered or certified mail, return receipt
requested, and, simultaneously, by ordinary mail to . . . a
corporation . . . that is subject to suit under a recognized
name, addressed to a registered agent for service, or to its
principal place of business, or to its registered
office.” See N.J.S.A. 4:4-4(b)(1)(C). The
plaintiff also must file an affidavit with the Court
detailing the diligent efforts made to effect personal
service. See N.J.S.A. 4:4-5(b). Importantly,
“[m]ail may be addressed to a post office box in lieu
of a street address only if the sender cannot by diligent
effort determine the addressee's street address or if the
post office does not make street-address delivery to the
addressee.” See N.J.S.A. 1:5-2; see
also N.J.S.A. 4:4-4(b)(1)(C) (“Mail may be
addressed to a post office box in lieu of a street address
only as provided by R. 1:5-2.”).
Illinois, where personal service is not possible, service by
publication is permissible. Within 10 days of the first
publication of the notice, the clerk of court must also mail
the notice to each defendant. See 735 ILCS
5/2-206(a); see also Ill. Comp. Stat. 5/2-204
(“A private corporation may also be notified by
publication and mail in like manner and with like effect as
individuals.”). Plaintiff must also file an affidavit
with the Court detailing the diligent efforts undertaken to
effect personal service prior to publication. See
Ill. Comp. Stat. 5/2-206(a).
Court agrees with Plaintiff that it appears that Defendant is
attempting to evade service. The Court is particularly
convinced by Defendant's conduct in hanging up on
Plaintiff when pressed to give a physical address where
service could be sent. Plaintiff calls attention to a case
from the Northern District of Illinois in support of the
proposition that “Illinois law permits alternative
service when a defendant appears to be evading
service.” See Att'y Cert. ¶ 11. In
that case, however, the District Court approved service on
the defendant's attorney where personal service proved
impracticable. See Fifth Third Bank v.
Malone, No. 09-cv-6578, 2010 WL 183344, at *3-4 (N.D.
Ill. Jan. 20, 2010). Here, Plaintiff asks for approval of
service by mail to a post office box address, which is quite
different. Rule 4 requires strict compliance and it clearly
states that service is only permissible if it meets the rules
of the state where the district court is located or
where service is made. See Fed. R. Civ. P. 4(e)(1);
McMasters v. United States, 260 F.3d 814, 817 (7th
Cir. 2001) (“the plaintiff must comply with the
directives of Rule 4”).
fails to meet the Illinois rules of service because she has
not met the publication requirements set forth in Rule
206(a). See 735 ILCS 5/2-206(a). Nevertheless,
Plaintiff has met the requirements set forth in the New
Jersey Rules of Court for service by mail to an out-of-state
corporation, which permits mail addressed to a post office
box where diligent effort to effect personal service has
failed. See N.J.S.A. 1:5-2. The Court, therefore,
GRANTS Plaintiff's request to ratify
service by mail to Defendant's post office box address
and Plaintiff may now move the Clerk of Court for entry of
default pursuant to Rule 55(a).
reasons stated above, Plaintiff's request to ratify
service is GRANTED. ...