Durukan, which indicated where the defendant was supposed to be, these exhibits would not be
enough on their own because they do not prove where Grant resided on July 26. However, they,
at least to some extent, corroborate a clear affidavit stating that “at all times in 2012 and before
[Grant] lived at 3349 W. 79th Street, Chicago, Illinois.” Jd. at 7. With this statement, Grant
specified where he actually resided on the day of service, and it was not 925 Williams Street.
Perhaps Grant had two residences but, in the absence of any such evidence, that cannot be the
presumption. This is particularly true because the process server’s affidavit revealed no basis for
concluding that Grant resided at 925 Williams Street. And if Grant did not reside at 925
Williams Street, service could not have been proper under Rule 4(e)(2)(B) even if the summons
and complaint were left with him and the process server believed that Grant resided there. See
Hasenfus v. Corporate Air Servs., 700 F. Supp. 58, 66 (D.D.C. 1988) (citied with approval in
Robinson Eng'g Co. Pension Plan & Trust v. George, 223 F.3d 445, 452 (7th Cir. 2000)).

At a minimum, this evidence has created the type of “doubt regarding the efficacy of
service” which the Seventh Circuit has suggested should be dealt with in an evidentiary hearing.
Storms Indus., Inc. v. TheLaundryList.com, Inc., 2009 WL 2905437, at *2 (N.D. Ill. Sept. 8,
2009). This is especially true in light of this Circuit’s “well established policy favoring a trial on
the merits over a default judgment ....” Bristol W. Ins. Co. v. Clark, 2011 WL 1135921, at *2
(S.D. Ind. Mar. 25, 2011).

It also should be noted that Grant denies that he ever was personally served in 2012.
[ECF No. 13, at 7]. This flat denial alone would not constitute strong and convincing evidence.
But Grant attempts to support the denial by providing evidence that his physical appearance was
not similar to the process server’s physical description. Specifically, Grant’s affidavit references

his height and weight “in 2012,” id., and his state identification card issued on November 14,



Feb. 11, 2015), or was sufficient, Trustees of Local Union No. 727 Pension Fund v. Perfect
Parking, Inc., 126 F.R.D. 48, 52 (N.D. Ill. 1989). However, if a defendant provides a specific
basis for disputing the process server’s affidavit, then the server’s affidavit is no longer
presumed true... .” Durukan, 787 F.3d at 1164. Where there are material facts related to
service that are in dispute, the court “must hold an evidentiary hearing to resolve them, at which
point the party asserting personal jurisdiction must prove what it alleged.” Hyatt Int'l Corp. v.
Coco, 302 F.3d 707, 713 (7th Cir. 2002). See also Durukan, 787 F.3d at 1164 (“To resolve the
dispute between the conflicting evidence, the district court needed to hold an evidentiary
hearing.”).

In Durukan America, LLC v. Rain Trading, Inc., 787 F.3d 1161 (7th Cir. 2015), the
process server’s affidavit described how he personally served an individual defendant. Jd. at
1162. The affidavit included the name of the recipient, the place of service, and the time of
service and, therefore, shifted the burden of proof. /d. at 1163. However, the defendant
presented employment records indicating that, on the alleged day of service, he was supposed to
be working at a location different from the location of service. /d. at 1164. He also provided an
affidavit asserting that he was in fact working at this different location. Jd. With this “specific
first-hand observation[],” the defendant “not only denied service but even explained where he
was at the time of service and how he remembers so precisely.” Jd. The Seventh Circuit noted
that this evidence was “more than sufficient to contradict the affidavits of service and require a
hearing to resolve the factual dispute.” Jd.

This case is similar. Here, Grant has attached to his affidavit several exhibits indicating
that, during the one to two year time period around service of process, he lived at 3349 W. 79th

Street, Chicago, Illinois. [ECF No. 13, at 8-10, 12]. As with the employment records in



2013 notes his height and weight at that time. The gaps between the server’s description and
Grant’s affidavit description are seven inches and twenty pounds. The gaps between the server’s
description and the ID card are nine inches and twenty-five pounds. In considering these gaps,
an allotment of a couple inches and some pounds must be made for reasonable errors on the part
of a process server who is making estimates without a tape measure or scale. Allowing for these
margins of error, it is possible -- but unlikely -- that Grant’s physique changed that much
between July 26, 2012, and some later time in 2012 or November 2013. Therefore, whether
there actually is conflicting evidence as to Grant’s physical appearance is not entirely clear.
However, because an evidentiary hearing is necessary because of the issue of Grant’s residence,
the parties are encouraged also to present evidence of Grant’s physical appearance on July 26,
2012, at the hearing.
IV. CONCLUSION

For the reasons stated above, Defendant’s motion to quash [EFC No.7] will remain under
advisement. A status hearing is set for December 3, 2015 at 11:00 a.m. At that hearing, the
Court will schedule an evidentiary hearing. The Court proposes December 17, 2015 at 1:30 p.m.
for the evidentiary hearing. The parties and/or their counsel should be prepared at that time to
confirm that date works for them and any witnesses. If that date does work, they should be

prepared to propose a different date.

Jeffrey T. Gilbert
United States Magistrate Judge

Dated: November 18, 2015



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, No. 12 CV 04035

v. Magistrate Judge
Jeffrey T. Gilbert
ANDRE V. TILLMAN A/K/A ANDRE
TILLMAN,

Defendant.

were ee

MEMORANDUM OPINION AND ORDER

Several years ago, Plaintiff United States of America sued Defendant Andre V. Tillman,
alleging Defendant defaulted on a student loan. On July 26, 2012, a process server allegedly
served Defendant by leaving a copy of the summons and complaint with an individual who was
present at Defendant’s place of abode. [ECF No. 4]. Defendant did not appear or otherwise
respond to the complaint. On October 24, 2012, the clerk entered a default judgment against
Defendant. [ECF No. 6]. Roughly three years later, on July 27, 2015, Defendant moved to
quash service of summons under Federal Rule of Civil Procedure 12(b)(5). [ECF No. 7, 13].
Because Defendant seeks relief from the default judgment, the Court instead will treat his motion
as a motion to vacate under Federal Rule of Civil Procedure 60(b). For the reasons stated below,
the motion will remain under advisement pending an evidentiary hearing.

I. BACKGROUND

On the morning of July 26, 2012, Plaintiffs process server allegedly went to Defendant’s
place of abode at 925 Williams Street, Calumet City, Illinois (“925 Williams Street”). [ECF No.
4, at 3]. According to the server’s affidavit of service, he left a copy of the summons and

complaint with “DeShan Grant” (“Grant”). /d. The server described Grant as a black male with



black hair who was approximately seventeen years-old, five feet eight inches tall, and 145
pounds. Jd. The server also stated that Grant resided at 925 Williams Street. /d. In challenging
service, Defendant attached an affidavit from Deshae Grant. [ECF Nos. 7, at 5-10; 13, at 7-12].!
Defendant argues that Grant did not reside at 925 Williams Street, [ECF No. 7, at 1], and was not
the person with whom the summons and complaint were left, id. at 2.?
II. LEGAL STANDARD

Federal Rule of Civil Procedure 55(c) permits the Court to “set aside a default judgment
under Rule 60(b).” Fed. R. Civ. P. 55(c); see also U.S. Bank, Nat. Ass'n v. Dunn, 2013 WL
1222054, at *1 (N.D. Ill. Mar. 25, 2013).? “Rule 60(b) provides for relief if the litigant discovers
new evidence, for mistake, inadvertence, surprise, or excusable neglect, for fraud, if the
judgment is void, satisfied, released, or discharged, and for any other reason that justifies relief.”
Brown v. Fifth Third Bank, 2013 WL 1087562, at *2 (N.D. Ill. Mar. 14, 2013). When a default
judgment is obtained after improper service of process, that judgment is void under Rule
60(b)(4) and must be set aside. In re Outboard Marine Corp., 369 B.R. 353, 358 (Bankr. N.D.

Ill. 2007).

III. DISCUSSION
“As a general rule, service of process in the federal courts is governed by Federal Rule of

Civil Procedure 4.” Schmude v. Sheahan, 214 F.R.D. 487, 490 (N.D. Ill. 2003). “Federal Rule

"It is unclear whether the process server incorrectly wrote “DeShae” as “DeShan.” Neither party has
argued that there are two separate Grant’s, DeShae and DeShan. Indeed, Plaintiff's strongest statement
on the matter was that “it is not entirely clear... whether ‘DeShan’ and ‘DeShae’ are indeed the same
individual.” [ECF No. 12, at 2]. Therefore, it seems most likely that these are indeed the same person.

? Defendant also notes that he was not personally served, did not receive a copy of the summons by mail,
and that Grant is not a family relation. [ECF No. 7, at 1-2]. None of these arguments are relevant
because Federal Rule of Civil Procedure 4(e)(2)(B) only requires that the complaint and summons be left
at Defendant’s place of abode “with someone of a suitable age and discretion who resides there.”

* The amendments to Rule 55 that will become effective on December 1, 2015, do not change this part of
the Rule.



of Civil Procedure 4(e) provides that federal courts will have personal jurisdiction over a
defendant if (1) service is effected pursuant to the law of the state where the district court is
located, (2) a summons is delivered to the defendant personally, (3) the summons is left at the
defendant's usual abode with a person of suitable age and discretion, or (4) the summons is
delivered to an authorized agent of the defendant.” Homer v. Jones-Bey, 415 F.3d 748, 754 (7th
Cir. 2005)

“[U]nder Federal Rule of Civil Procedure 4, a signed return of service constitutes prima
facie evidence of valid service ....” Id. at 752. “Once such a prima facie showing is made, the
burden shifts to the defendant to demonstrate that service was not received.” Jd. A defendant
can overcome this burden with “strong and convincing evidence. Durukan Am., LLC v. Rain
Trading, Inc., 787 F.3d 1161, 1163 (7th Cir. 2015).

In this case, Plaintiff did file a signed affidavit of service. [ECF No. 4, at 3]. The
affidavit identifies the date and time of service — July 26, 2012 at 10:19 AM. Id. It identifies the
address where service was made — 925 Williams Street, Calumet City, Illinois. /d. It identifies
the name of the person with whom the summons and complaint were left —“Deshan Grant.” Jd.
It identifies Grant as “a person residing” at 925 Williams Street. /d. And it provides a physical
description of Grant — “Sex: Male — Skin: Black — Hair: Black — Approx. Age: 17 — Height:
5[°]8” — Weight: 145.” Id. This signed affidavit clearly describes the who, when, and where of
service. Indeed, Defendant does not even claim that the description failed to apprise him of what
must be rebutted. Therefore, it constitutes a prima facie showing that shifts the burden to
Defendant.

A defendant’s burden cannot be overcome by submitting an affidavit which merely

denies that service happened, Tonge v. Arantee Grp., LLC, 2015 WL 566784, at *5 (S.D. Ind.