IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MOSES PEREZ, )

)

)

Plaintiff, )

) No. 04 CV 04705

v. )

VISTA INTERNATIONAL ) HONORABLE DAVID H. COAR

(ILLINOIS) Inc., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Moses Perez is suing his former employer, Vista International (Illinois) Inc., for

violating Tittle VII of the Civil Rights Act of 1964 by discriminating against him because of his

national origin. Before the Court is the Defendant’s Motion to Dismiss for Failure to Serve. For

the reasons set forth below, the Defendant’s Motion is Granted.

I. FACTUAL BACKGROUND

Plaintiff worked at the Drake Hotel in Chicago, Illinois. On July 19, 2004, Plaintiff filed

a complaint against “The Drake Hotel” as the defendant, alleging that he was discriminated

against on the basis of his national origin. The Drake Hotel is an assumed name by which Vista

International (Illinois) Inc. does business. The Defendant, Vista International (Illinois) Inc., is

a corporation that retains United Corporate Services, Inc. as its registered agent in Illinois. On

October 29, 2004, Plaintiff provided a complaint to an employee of the Drake Hotel. Defendant

moved this Court alternatively for a dismissal or to quash service on the grounds that service to a

low-level employee, as opposed to an officer, managing agent or general agent of the

Defendant, did not constitute valid service under the Federal Rules of Civil Procedure. On
December 22, 2004, this Court granted the Defendant’s motion to quash service. Thereafter,

Plaintiff filed an amended complaint on January 19, 2005. On February 8, 2005, Plaintiff

served a summons and a complaint on an individual who has no discernable relationship to either

the Defendant or the Defendant’s registered agent. Although Plaintiff’s counsel has given a

copy of the amended complaint to the Defendant’s counsel, Defendant asserts that it has yet to be

served the amended complaint. Defendant now moves for dismissal of the case for failure to

serve pursuant to Federal Rule of Civil Procedure 12(b)(5). 

II. ANALYSIS

The requirements for valid service of process are contained within the Federal Rules of

Civil Procedure. A plaintiff has 120 days after filing a complaint to serve a defendant. 

Fed.R.Civ.P. 4(m) (2005). If the plaintiff does not serve the defendant within the 120 days, Rule

4(m) instructs the court, upon motion or, if shown good cause, on its own initiative after notice

to the plaintiff, to dismiss the action without prejudice as to that defendant or to direct that

service be effected within a specified time. Fed.R.Civ.P. 4(m) (2005). To properly serve a

defendant corporation, a plaintiff must comply with Federal Rule of Civil Procedure 4(h), which

states that service may be 1) effectuated in a manner identical to how service is effected in courts

of general jurisdiction pursuant to the law of the state where the district court sits or where

service is to be effected, or 2) “by delivering a copy of the summons and of the complaint to an

officer, a managing or general agent, or to any other agent authorized by appointment or by law

to receive service of process....”

Illinois law is relevant here because service was to be made in Springfield, Illinois. 

Under Illinois law, “a private corporation may be served (1) by leaving a copy of the process

with its registered agent or any officer or agent of the corporation found anywhere in the State;
or (2) in any other manner now or hereafter permitted by law. A private corporation may also be

notified by publication and mail in like manner and with like effect as individuals.” 735 Ill.

Comp. Stat. 5/2-204 (2005). 

In the present case, Plaintiff filed an amended complaint on January 19, 2005. During

the 120 days that followed, Plaintiff served a summons and a complaint to a woman named

Diana Blackburn. According to the Defendant, who has produced sworn affidavits in support of

its claim, Ms. Blackburn was not an officer, registered agent, general agent or even an employee

of the Defendant, nor was she an employee of United Corporate Services, Inc., the Defendant’s

registered agent. Furthermore, the address shown on the return of service, 801 Adlai Stevenson

Drive, Springfield, Illinois, was not the business address of United Corporate Services, Inc., as

displayed on the website of the Secretary of State of Illinois. Since Ms. Blackburn has no

relationship to either the Defendant or its registered agent, service upon her personally was of no

use in effecting service on the Defendant for purposes of Rule 4. 

Also, the fact that Plaintiff’s counsel gave a copy of the amended complaint to

Defendant’s counsel does not mean valid service was accomplished. “An authorized agency

does not arise through implication, rather it is intended to involve only actual, explicit

authorization.” Chico v. Miller, 05-C-3101, 2005 WL 2664856, at *4 (N.D.Ill. Oct. 19, 2005),

citing Schultz v. Schultz, 436 F.2d 635, 637 (7th Cir.1971). United Corporate Services, Inc. was

the Defendant’s registered agent; appointed for the specific and sole purpose of receiving service

of process. Thus, serving process to anyone other than an officer, a managing or general agent

or registered agent of the Defendant was ineffective under Rule 4. Consequently, Plaintiff has

not demonstrated how service of process was effected within the methods set out under federal

or Illinois law.
A plaintiff who fails to serve the defendant within the 120 day deadline must demonstrate

good cause for failing to adhere to the deadline before a court will grant an extension. 4B

Wright & Miller, Fed. Prac. & Proc.: Civil 3d § 1137 (2002). The plaintiff bears the burden of

demonstrating good cause. Id. Good cause is likely, though not certain, to be found when there

is evidence that the defendant or a third party's conduct prevented plaintiff from effecting timely

service. Id. Evidence of defendant's intentional evasion of service, faulty effort by the process

server, and lack of prejudice to defendant by the delay are all factors that a court can consider in

making a good cause determination. Id.; Geiger v. Allen, 850 F.2d 330 (7th Cir.1988); United

States v. Fields, 703 F.Supp. 749 (N.D.Ill.1989). Furthermore, a good cause showing must be

accompanied by evidence that plaintiff used “reasonable diligence” in attempting to serve

defendant within 120 days. Bachenski v. Malnati, 11 F.3d 1371, 1377 (7 Cir.1993) (quoting Tso

v. Delaney, 969 F.2d 37 3, 377 (7th Cir. 1992)).

In the present case, Defendant argues that it has not been served because it is a

corporation and neither its registered agent, nor any of its officers, managing or general agents

were provided a summons and a copy of the complaint. Defendant asserts that Plaintiff could

have easily ascertained the registered agent’s identity and location from the Secretary of State of

Illinois’ Office, and thus there is no evidence to support a good cause finding or any indication

of reasonable diligence by Plaintiff in attempting to serve it within the 120 day period. The

Defendant has not attempted to evade service. It is a domestic corporation duly registered in the

State of Illinois. The return of service submitted to the Court shows that service was made upon

Ms. Blackburn at an address other than the business address of the Defendant’s registered agent. 

There is no evidence to indicate why the Plaintiff deviated from the address of the Defendant’s

registered agent from the Illinois Secretary of State’s website or whether the deviation was
reasonable. Therefore, this Court must conclude that delivery to Ms. Blackburn at an address not

ostensibly related to the Defendant or its registered agent was unreasonable.

Accordingly, there is no support for a determination of good cause.

III. CONCLUSION 

For the foregoing reasons, Defendant’s Motion to Dismiss is granted without prejudice. 

Enter:

/s/ David H. Coar 

David H. Coar

United States District Judge

Dated : September 11, 20006