Tag: registered agent

Faulty Service on LLC Defendant Dooms Administrative Agency’s Unpaid Wages Claim Versus Security Company

The Illinois Department of Labor’s (DOL) decision to send a notice of hearing to a limited liability company and its sole member to the member’s personal post office (p.o.) box (and not to the LLC’s registered agent) came back to haunt the agency in People of the State of Illinois v. Wilson, 2018 IL App (1st) 171614-U.

Reversing summary judgment for the DOL in its lawsuit to enforce an unpaid wages default judgment, the First District austerely applies the Illinois LLC Act’s (805 ILCS 180/1-1 et seq.) service of process requirements and voided the judgment for improper service.

Key Chronology:

February 2013: the DOL filed a complaint for violation of the Illinois Wage Payment and Collection Act (the Wage Act) against the LLC security firm and its member (the “LLC Member”);

January 2015: the DOL sends a notice of hearing by regular mail to both defendants to the LLC Member’s personal p.o. box;

March 2015: Defendants fail to appear at the hearing (the “2015 Hearing”) and DOC defaults the defendants;

June 2015: Defendants fail to pay the default amount and DOL enters judgment that tacks on additional fees and penalties;

February 2016: DOL files suit in Illinois Chancery Court to enforce the June 2015 administrative judgment;

March 2016, May 2016: Defendants respectively appear through counsel and move to dismiss the case for improper service of the 2015 Hearing notice;

June – July 2016: DOL concedes that service was deficient on the LLC defendant (the security company) and voluntarily dismisses the LLC as party defendant;

May 2017: DOL’s motion for summary judgment granted;

June 2017: LLC Member appeals.

The Analysis

The main issue on appeal was whether the DOL gave proper notice of the 2015 Hearing. It did not.

Under the law, lack of jurisdiction may be raised at any time; even past the 35-day window to challenge an agency’s decision under the Illinois Administrative Review Law, 735 ILCS 5/3-103.

Section 50 of the LLC Act provides that an LLC must be served (1) via its registered agent or (2) the Secretary of State under limited circumstances.

Secretary of State service on an LLC is proper where (1) the LLC fails to appoint or maintain a registered agent in Illinois; (2) the LLC’s registered agent cannot be found with reasonable diligence at either the LLC’s registered office or its principal place of business; OR (3) when the LLC has been dissolved, the conditions of (1) and (2) above exist, and suit is brought within 5 years after issuance of a certificate of dissolution or filing of a judgment of dissolution. 805 ILCS 180/1-50(a), (b)(1-3).

Here, the DOL mailed notice of the 2015 Hearing to the wrong party: it only notified the LLC Member. It did not serve the notice on the LLC’s registered agent or through the Secretary of State. As a result, the LLC was not properly served in the underlying wage proceeding.

The DOL argued that since the LLC Member was also sued as an individual “employer” under Sections 2 and 13 of the Act, service of the 2015 Hearing on the LLC Member was valid.

The Court disagreed. Under Sections 2 and 13 of the Act, an employer can be liable for its own violations and acts committed by its agents and corporate officers or agents can be liable where they “knowingly permit” an employer to violate the Act.

Corporate officers who have “operational control” of a business are deemed employers under the Act. However, an individual’s status as a lone member of an entity – like the LLC Member – is not enough to subject the member to personal liability.

Instead, there must be evidence the member permitted the corporate employer to violate the Act by not paying the compensation due the employee. Otherwise, the Court held, every company decision-maker would be liable for a company’s failure to pay an employee’s wages. [⁋⁋ 49-50]

And since the DOL hearing officer never made any specific findings that the LLC Member knowingly permitted the security company to violate the Act, there wasn’t enough evidence to sustain the trial court’s summary judgment for the DOL. [⁋ 51]

Afterwords:

Wilson starkly illustrates that the LLC Act’s service of process strictures have teeth. If a litigant fails to serve an LLC’s registered agent or the Secretary of State, any judgment stemming from the invalid service is a nullity.

In hindsight, the DOL probably should have produced evidence at the 2015 Hearing that the LLC Member (a) had operational control over the security firm; and (b) personally participated in the firm’s decision not to pay the underlying claimant’s wages. Had it done so, it may have been able to salvage its case and show that p.o. box service on the LLC Member was sufficient to subject her to the DOL’s jurisdiction.

Saying “I Wasn’t Served” Not Enough to Challenge Service Return On Corp. Registered Agent – IL Law

In Charles Austin, Ltd. v. A-1 Food Services, Inc., 2014 IL App (1st) 132384, the First District affirmed the denial of a corporate defendant’s Section 2-1401 motion to vacate a judgment.

About three months after judgment, the defendant sought to vacate the judgment claiming it was never served with the lawsuit.  The trial court denied the motion leaving the judgment intact.

Q: Why?

A:  

1/ A party can serve a private corporation by leaving the complaint and summons with the registered agent or any officer or agent of the corporation found anywhere in the State. 735 ILCS 5/2-204;

2/ An affidavit of service is prima facie proof of proper service and the court will indulge every presumption in favor of finding that service was proper;

3/ To attack service, the moving party must produce evidence that casts doubt on the return of service by clear and convincing evidence;

4/ A conclusory affidavit that merely says “I was never served” isn’t sufficient to refute a return of service.  ¶ 16.

Here, the defendant’s affidavit saying he didn’t recall receiving the plaintiff’s complaint wasn’t enough to contest service on the corporation.  A defendant’s bare assertion that it doesn’t remember receiving a summons and complaint is not the kind of evidence required to impeach a facially valid service return. ¶ 19.

In Illinois, to vacate a judgment more than 30 days old,  a petitioner must show (1) the existence of a meritorious defense, (2) due diligence in presenting the defense in the underlying claim, and due diligence in filing the 2-1401 petition.

The defendant failed to show a meritorious defense.  The plaintiff alleged the predecessor corporation secretly sold its assets to the defendant – the acquiring entity – while the litigation was pending and did so to elude the debt to the plaintiff.  A well-known exception to the general rule that a successor corporation doesn’t assume the debts of a corporate predecessor is where the seller engages in a fraudulent transaction to avoid the seller’s contract obligations.

Here, the court found that the fraud exception to the rule against successor liability applied.

The court found that plaintiff sufficiently pled under Illinois fact-pleading rules that the sale of the predecessor’s assets to the defendant was fraudulent and done for the purpose of evading the plaintiff’s contract rights.  As a result, the meritorious defense argument failed.  ¶¶ 28-37.

The defendant also failed to establish due diligence in raising its defenses to the underlying breach of contract suit.  The court noted the defendant’s registered agent was served with process in October 2012, the judgment entered in January 2013, the defendant’s bank account was liened in May 2013 and it didn’t file its 2-1401 motion until June 2013.

The eight month delay in responding to the lawsuit signaled its lack of diligence in defending the suit.

Take-aways:

– To challenge service, a defendant must do more than blanketly allege that he doesn’t recall receiving a pleading;

– If a plaintiff alleges factual basis for his claim, the defendant trying to vacate a default judgment will have difficulty meeting 2-1401’s meritorious defense element.

Corporate Registered Agent’s Inaction Not Binding On Corporation: Court Vacates One-Year Old Default Judgment

West Bend Mut. Ins. Co. v. 3RC Mechanical and Contracting, Inc., 2014 IL App (1st) 123213, presents a recent and detailed illustration of the prevailing Section 2-1401 (735 ILCS 5/2-1401) standards to vacate judgments that are between 30 days and two years old.

The plaintiff (as subrogee of its insured) filed suit against a mechanical contractor – an Illinois LLC – for breach of an oral construction contract.  But before plaintiff filed suit, and without plaintiff’s knowledge, the contractor filed for bankruptcy protection.  When plaintiff learned of the contractor’s bankruptcy, it got permission from the bankruptcy court to continue the breach of contract suit against the contractor in state court.

Over the next several months, the contractor was a no-show at several (breach of contract suit) court hearings.   The plaintiff sent two motions for default and a default order to the contractor’s former registered agent and to the contractor’s former business address – an address from which the contractor moved before the lawsuit was filed.  The registered agent never notified the contractor’s managing partner of the state court case’s status and never sent the managing partner court orders or motions even though the partner’s identity and address was listed in the corporate bankruptcy filings.  The trial court entered an approximately $80,000 default judgment against the contractor.   About five months later, when the contractor learned of the default, it filed a Section 2-1401 petition to vacate the default judgment.  The contractor’s petition to vacate was granted and the plaintiff appealed.

Held: Affirmed.

Rules/Reasoning:

Code Section 2-1401 provides a mechanism for someone to vacate a judgment more than 30 days old.  The party moving to vacate a 30-plus days’ old judgment must support the petition with an affidavit and show (1) a meritorious defense; (2) due diligence in raising the defense in the underlying case; and (3) due diligence in filing the section 2-1401 petition for relief from the judgment.  3RC, ¶ 11.

Due diligence in bringing the 2-1401 motion is established as long as it’s filed within two years of the judgment.  2-1401(c), (¶ 12).  A meritorious defense is one that raises a question of law that deserves to be factually investigated.  As for the second element – due diligence in raising a defense – the court looks to whether the 2-1401 petitioner had a reasonable excuse for failing to timely act as opposed to simple oversight or negligence.  The petitioner must show that his failure to defend the suit was an “excusable mistake” and that he acted reasonably in initially failing to defend the suit. (¶ 14).

Here, the contractor defendant established due diligence in filing the petition since it brought the petition to vacate some five months after the judgment entered – well within the two-year statutory cut-off.  The contractor also established a meritorious defense: it asserted that there was no written or verbal contract between it and the plaintiff and filed a supporting, sworn affidavit.

On the due diligence in presenting a defense element, the court noted that plaintiff repeatedly sent court papers to the corporation’s former registered agent and to the wrong address – the corporation’s former place of business that had been closed for more than a year.  The corporation’s ex-registered agent failed to notify the corporate managing partner of the lawsuit and the default order.

The Court also noted that plaintiff failed to send court orders directly to the corporate managing partner, even though the managing partners’ address was prominently listed in various corporate bankruptcy filings.  Because of this, the Court agreed with the trial court and found that defendant demonstrated a reasonable excuse for not appearing in and defending the underlying case.  (¶¶ 14-16).

Take-aways: This case presents a good snapshot of Section 2-1401 motion practice including the required showings necessary to vacate a dated judgment (between 31-730 days old).  It also shows the perils of not properly serving default orders on a corporate defendant.

When dealing with a defunct or financially foundering corporation that’s not represented by counsel, I always try to serve the corporation at its registered office or, failing that, I serve a corporate officer.  If necessary, I hire a process server to skiptrace the corporate principals so I can show the court I did all I could to notify the corporate defendant of a default order or judgment.