*

 After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 26, 2007*

Decided March 27, 2007

Before

Hon. RICHARD A. POSNER, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

No. 07-1194

PATRICK B. KOMESHAK, D.C., 

d/b/a KOMESHAK CHIROPRACTIC

and THOMAS L. KALTENBRONN,

D.C., individually and on behalf of

others similarly situated,

Plaintiffs-Appellees,

v.

RISK ENTERPRISE

MANAGEMENT SERVICES, INC.,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern District of Illinois

No. 06 C 193

David R. Herndon,

Judge.

ORDER

Chiropractors Patrick Komeshak and Thomas Kaltenbronn filed suit on

behalf of a putative class on February 14, 2005–four days before the effective date of

the Class Action Fairness Act of 2005, (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 07-1194 Page 2

(2005). They erroneously named Risk Enterprise Management Services, Inc. as

defendant in the complaint and erroneously listed Ronald Gage as agent for the

defendant. The actual name of the organization plaintiffs were attempting to sue is

Risk Enterprise Management Limited (“REML”) which has no affiliation with

Ronald Gage. (Ronald Gage is listed in the Illinois Secretary of State’s corporation

database website as the registered agent for REM Services, Inc., an unrelated

company that is dissolved.) The plaintiffs attempted to serve process on REML

through Ronald Gage seven times between March 9, 2005 and March 14, 2005, but

were unsuccessful each time because of their error.

The plaintiffs took no further action until October 2005 when they attempted

to serve REML’s correct corporate agent–CT Corporation. But CT Corporation

twice refused service because the plaintiffs still listed the incorrect name for REML. 

On December 28, 2005, the state court corrected the name on the docket sheet and

on February 7, 2006, the plaintiffs perfected service. REML removed the case to

federal court in March 2006, arguing that the December 28, 2005 amendment of the

defendant’s name commenced a new case for CAFA purposes. The plaintiffs filed a

motion to remand the case to state court arguing that the amendment relates back

to the original filing date and thus precedes CAFA’s February 18, 2005 effective

date. The district court agreed and remanded the case to state court. On January

23, 2007, we granted REML’s petition for permission to appeal.

State procedural law determines whether substituting a party in a state case

commences a new case. See Phillips v. Ford Motor Co., 435 F.3d 785, 787 (7th Cir.

2006). In this case, the determination turns on whether the plaintiffs exercised

reasonable diligence to obtain service on REML. See 735 Ill. Comp. Stat. 5/2-616(d);

Ill. Sup. Ct. R. 103(b). To determine whether a plaintiff has exercised reasonable

diligence, Illinois courts look to the length of the delay, the plaintiff’s activities,

whether the plaintiff is aware of the defendant’s location, whether the defendant’s

location could be easily ascertained, actual knowledge of the complaint on the part

of the defendant, special circumstances affecting the plaintiff’s efforts, and actual

service on the defendant. See Segal v. Sacco, 136 Ill. 2d 282, 287 (1990). 

We cannot agree with the district court’s determination that the plaintiffs

exercised reasonable diligence during the year that they attempted to serve REML. 

After the plaintiffs failed to serve REML in March 2005, there is no record that they

made any attempt to discover REML’s correct information for seven months. 

Indeed, when they did attempt to serve REML’s correct agent in October 2005, they

again attempted to serve process using the incorrect name for REML. Further, the

record demonstrates that the plaintiffs had access to REML’s correct name all along

in the form of checks they received as payment from REML. Any additional

information–including the agent’s name and address–was readily available at the

Illinois Secretary of State’s corporation database. Accordingly, the judgment of the
No. 07-1194 Page 3

district court is REVERSED and the case is REMANDED with instructions to

DENY the plaintiffs’ motion to remand.