Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Ronald A. Guzman Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 1891 DATE 10/11/2012

CASE

TITLE

Trustees of the Chicago Decorators and Painters Fund, et al. v. Destiny Services, Inc. 

DOCKET ENTRY TEXT

For the reasons stated below, the defendant’s motion to vacate the judgment [24-1] is denied. 

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT

 Destiny Services, Inc.’s motion to vacate the judgment entered against it on July 13, 2012 [24] is

denied. 

Plaintiffs filed their complaint against Destiny Services, Inc. (“Destiny”) on March 15, 2012. (Dkt.

#1.) Plaintiffs personally served Daniel McDuffie, Destiny’s President and registered agent, on May 8, 2012. 

(Dkt. # 7.) Defendant did not appear through counsel in the case. Instead, McDuffie filed a document on

May 29, 2012 entitled “Answer to Plaintiffs’s Complaint at Law.” (Dkt. # 10.) On June 6, 2012, Plaintiffs

filed a motion to strike the answer and enter an order of default on the ground that the answer was not filed by

an attorney. (Dkt. # 11.) On June 14, 2012, the Court granted the Plaintiffs’ motion to strike the answer,

entered an order of default and set a status for the filing of a motion for prove-up of damages. (Dkt. # 13.)

Plaintiffs filed and served a motion for judgment in a sum certain on July 3, 2012, which was noticed for July

10, 2012. (Dkt. ## 14-15.) On its own motion, the Court reset the presentment date for Plaintiffs’ motion for

judgment in sum certain to July 13, 2012. (Dkt. # 16.) On July 13, 2012, the defendant did not appear and

the Court granted Plaintiffs’ motion for entry of judgment against Destiny in the amount of $139,160.42 and

terminated the case. (Dkt. # 17.) 

Destiny now moves to vacate the entry of judgment against it under Federal Rule of Civil Procedure

60(b) on the ground that it did not receive notice of either Plaintiffs’ motion to strike and for entry of default

or Plaintiff’s motion for judgment in sum certain. Specifically, Destiny moves under subsections (1) and (6)

of Rule 60(b) which provide that “[o]n motion and just terms, the court may relieve a party or its legal

representative from a final judgment, order, or proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; . . . (6) any other reason that justifies relief.” Fed. R. Civ. P.

60(b)(1), (6). According to Destiny, although Plaintiffs served both motions at the address of Destiny’s 1

registered agent as listed with the Illinois Secretary of State’s office, 1139 Vermont Avenue, Calumet Park,

12C1891 Trustees of the Chicago Decorators and Painters Fund, et al. v. Destiny Services, Inc. Page 1 of 3
STATEMENT

Illinois 60827, “it is not an address that [it] regularly checks for mail” (Def.’s Mot., Dkt. # 24, ¶ 6), though it

admits to using the address for its business. (Id.) Therefore, Destiny claims it did not have actual notice of

the motions in time to defend them. 

To obtain relief from a default judgment under Rule 60(b)(1) for mistake, inadvertence, surprise, or

excusable neglect, the defendants must demonstrate (1) good cause for the default, (2) quick action to correct

it, and (3) a meritorious defense to the complaint. Sun v. Bd. of Trs. of the Univ. of Ill., 473 F.3d 799, 810

(7th Cir. 2007). Relief under Rule 60(b) is “an extraordinary remedy to be granted in exceptional

circumstances.” Provident Sav. Bank v. Popovich, 71 F.3d 696, 698 (7th Cir. 1995). 

Plaintiffs first argue that Rule 55(b)(2) does not require notice of the motion for default judgment to

Destiny because it did not technically appear in the case. North Cent. Ill. Laborers’ Dist. Council v. S.J.

Groves & Sons, 842 F.2d 164, 169-170 (7th Cir. 1988). But the Court need not address this issue because it

is clear that good cause does not exist for Rule 60(b)(1) relief. Plaintiffs served Destiny at the address

provided by Destiny to the Illinois Secretary of State as its registered agent’s address--1139 Vermont Avenue,

Calumet Park, Illinois 60827. (Pls.’ Resp., Dkt. # 28, Ex. 1.) The summons, which was personally served on

McDuffie, lists the Vermont Avenue address as the address for Destiny. Thus, McDuffie was on notice that

the Vermont Avenue location was the address being used by Plaintiffs to provide notice to Destiny. 

McDuffie, however, neither changed the address with the Secretary of State’s office nor began to regularly

check the mailbox located at the Vermont Avenue office despite being on notice of the instant lawsuit. 

Moreover, even when he (improperly) filed an answer on behalf of Destiny in this action, McDuffie provided

no address on the filing. Thus, Plaintiffs had no indication that the address on file with the Secretary of State

may not have been the best address for providing notice to Destiny. 

Destiny suggests that had McDuffie been a lawyer or known better, he would have put his own

personal address at the end of the answer he filed on Destiny’s behalf, and “presumably” Plaintiffs would

have used that address when serving on Destiny the motions to strike and for entry of default and for

judgment. As an initial matter, McDuffie is no stranger to litigation. Indeed, Plaintiffs point to four other

cases in this district in which McDuffie’s previous corporation, Destiny Decorators, Inc., has been named as a

defendant and for which five different law firms entered their appearances. (Id. at 12 n.1.) Moreover,

McDuffie has previously been advised by this Court in a different action, 08 C 4984, that he could not

represent a corporation. (Id., 10/30/08 Hr’g. Tr., Ex. 7 at 7) (“And you, sir, do not qualify to stand before me

as representing the defendant [Destiny Decorators, Inc.] in this case. The defendant must be represented by

an attorney because it is a corporation. That’s the law.”). It was for this reason that the Court struck the

answer filed by McDuffie in the instant case and entered an order of default. 

Destiny contends that when it found out in mid-August that judgment had been entered against it, it

immediately sought out counsel to correct the default. But a showing of quick action does not cancel the lack

of good cause. Moreover, Destiny must show a meritorious defense. “A meritorious defense is not

necessarily one which must, beyond a doubt, succeed in defeating a default judgment, but rather one which at

least raises a serious question regarding the propriety of a default judgment and which is supported by a

developed legal and factual basis.” Sullivan v. Gen. Plumbing, Inc., No. 06 C 2464, 2007 WL 1030236, at *4

(N.D. Ill. Mar. 31, 2007) (quoting Jones v. Phipps, 39 F.3d 158, 165 (7th Cir. 1994)). Such a defense

requires more than a “general denial” and “bare legal conclusions.” Id. (citation omitted). 

As an initial matter, Destiny’s position that it has a meritorious defense is not supported by a

developed legal basis as its cites no legal authority for its position. Moreover, the minimal facts provided do

12C1891 Trustees of the Chicago Decorators and Painters Fund, et al. v. Destiny Services, Inc. Page 2 of 3
STATEMENT

1. Despite asking that the order of default be vacated, Destiny makes no mention of Rule 55(c),

which provides that a “court may set aside an entry of default for good cause, and it may set aside

a default judgment under Rule 60(b).” Fed. R. Civ. P. 55(c). Accordingly, the Court considers

only Destiny’s motion to vacate the default judgment under Rule 60(b). 

not support Destiny’s position. Destiny argues that “the original judgment was entered against Destiny

Decorators[,] a corporation separate and distinct from Destiny Services.” (Def.’s Motion Vacate, Dkt. # 24, ¶

12.) But this is not the case. The defendant in this action is Destiny Services, Inc, and that is whom

judgment is entered against. (Dkt. # 19.) Destiny appears to be arguing that judgment should not have been

entered against it because it is not a successor corporation, as alleged in the complaint, to Destiny Decorators,

the entity that failed to pay the contributions and sought bankruptcy protection. (Def.’s Mot. Vacate, Dkt. #

24, at ¶ 12) (“Destiny Services has different ownership, provides more services, employs more people, etc.

tha[n] Destiny Decorators did.”). But McDuffie, who submitted the answer on behalf of Destiny, admitted

that he was the owner of both Destiny Decorators and Destiny Services. (Dkt. # 10, ¶¶ 25-26.) McDuffie

also admitted in the answer that both companies hired the same individuals to perform bargaining unit work

(id. ¶¶ 23-24), and that he “directed, controlled, and managed the workforce” of both Destiny Decorators and

Destiny Services. (Id. ¶¶ 27-28.) Moreover, McDuffie admitted that Destiny performs the same type of

work, painting work, that was previously performed by Decorators. Thus, McDuffie’s own admissions

contradict Destiny’s assertion in its motion to vacate that it had different ownership, provided more services

and employed more people than Decorators. Because Destiny has failed to show good cause or a meritorious

defense, its motion to vacate the default is denied. 

Finally, Destiny asks the Court to vacate the default as a matter of equity and fairness, but cites to no

authority for this assertion. Accordingly, the request is denied. 

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