2025 IL App (1st) 241833-U No. 1-24-1833 Order filed December 31, 2025 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ JERICO MATIAS CRUZ, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 22 L 007041 ) CAPITAL FITNESS, INC.; CFI SERIES, LLC; KELLY ) Honorable CARTWRIGHT; CAPITAL FITNESS- CHICAGO ) John J. Curry, ELSTON/CFI SERIES, LLC; XSPORT FITNESS; and ) Judge, Presiding. XSPORT FITNESS and XSPORT GYM & TAN, ) ) Defendants-Appellants. )
JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Mitchell and Justice Tailor concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s dismissal of plaintiff’s pro se complaint based on plaintiff’s failure to properly serve defendants and find that the circuit court’s denial of plaintiff’s amended motion for default was not an abuse of discretion where there was no proper service.
¶2 Pro se Plaintiff Jerico Matias Cruz appeals from the dismissal of his pro se complaint
against defendants Capital Fitness, Inc.; CFI Series, LLC; Kelly Cartwright; Capital Fitness- No. 1-24-1833
Chicago Elston/CFI Series, LLC; XSport Fitness; and XSport Fitness and XSport Gym & Tan
(collectively defendants) for breach of contract. On appeal, plaintiff contends that the circuit court
erred (1) in dismissing his complaint for failure to properly serve defendants; (2) denying his
amended motion for default judgment against defendants for failure to answer the breach of
contract complaint within 30 days of receiving a properly served summons and/or second alias
summons and original complaint; and (3) denying his amended motion to vacate the dismissal of
defendants Capital Fitness, Inc., CFI Series, LLC, and Kelly Cartwright on August 1, 2024. For
the following reasons, we affirm.
¶3 BACKGROUND
¶4 Plaintiff filed his pro se breach of contract suit against defendants on August 7, 2022, in
Cook County. Summons attached to the complaint listed a street address for each defendant.
Pursuant to the record, the circuit court then entered a series of orders setting status hearings on
service of plaintiff’s complaint and summons.
¶5 At the initial status hearing on October 24, 2022, the circuit court granted plaintiff leave to
obtain alias summons for each defendant and the matter was continued to January 9, 2023, for
status thereon. The record reveals that plaintiff filed alias summons directed to defendants at the
same street addresses as the initial summons but with an added option for certified mail and
checked it by hand. A new status date was subsequently set for February 27, 2023, after which,
the circuit court set an in-person status on service for April 17, 2023. 1 Plaintiff has not provided a
report of proceedings or bystander’s report from that status hearing, but the record indicates that a
subsequent in-person status hearing on service was set for June 20, 2023.
1 All prior status hearings occurred online using the Zoom teleconferencing application.
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¶6 Plaintiff filed a pro se motion for extension of time to serve the summons by the Cook
County Sheriff on June 7, 2023, based on his interlocutory appeal of the denial of his fee waiver
application. The record indicates that an order for another status hearing and to issue an alias
summons was set for September 12, 2023, at the June 27, 2023, status hearing. The next status
hearing was set for December 5, 2023, at which time the circuit court granted plaintiff a
continuance based on the disposition of his fee waiver appeal. 2 The next status date was then set
for March 7, 2024. On March 7, 2024, the circuit court entered an order granting plaintiff leave to
file an alias summons to serve the defendants with the original complaint and scheduled a status
hearing for June 20, 2024.
¶7 Plaintiff was again granted leave to file an alias summons to serve the defendants with the
original complaint at the June 20, 2024, status hearing, and a new hearing was set for August 1,
2024. The record contains copies of alias summons dated June 24, 2024, for each defendant to the
same addresses listed in the previous summons. It appears that three of the corporate alias
summons were served by the sheriff on an individual at the street address listed although the box
for corporate service on the registered agent is checked.
¶8 On July 29, 2024, plaintiff filed a pro se motion for extension of time to file the affidavits
of service, which the circuit court denied on August 1, 2024. The circuit court also dismissed
plaintiff’s complaint as to defendants Capital Fitness, Inc., CFI Series, LLC, and Kelly Cartwright
for lack of diligence in service. The case was continued to September 11, 2024, as to the remaining
2 The record indicates that this court dismissed plaintiff’s appeal for want of prosecution on March 4, 2024, in case number 1-23-0686.
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defendants: Capital Fitness- Chicago Elston/CFI Series, LLC, XSport Fitness, and XSport Fitness
and XSport Gym & Tan.
¶9 Plaintiff filed a pro se motion to vacate the dismissal of defendants Capital Fitness, Inc.,
CFI Series, LLC, and Kelly Cartwright on August 12, 2024. In the motion, plaintiff explained that
on January 9, 2023, he explained to the circuit court that the defendants were served through
certified first class mail postmarked November 26, 2022, but the court was looking for evidence
of return of service because the defendants had legal rights to refuse to waive the service required
by section 213(e) of the Code of Civil Procedure (Code) (735 ILCS 5/2-213(e) (West 2024)).
¶ 10 The following day, August 13, 2024, plaintiff filed a pro se motion for default judgment
against all defendants for failure to answer his complaint within 30 days after receiving a proper
service of summons and/or alias summons and original complaint. The motion restated plaintiff’s
position that he served all defendants by USPS certified first class mail and further stated that three
of the defendants were also served by the sheriff at their street addresses. Copies of the certified
mail receipts were attached to the motion. On August 21, 2024, plaintiff filed an amended pro se
motion for default judgment, and the following day he filed an amended motion to vacate the
dismissal.
¶ 11 On August 27, 2024, the circuit court struck plaintiff’s pro se motion to vacate because no
one appeared. On September 4, 2024, the circuit court denied plaintiff’s amended pro se motion
to vacate the dismissal of defendants Kelly Cartwright, Capital Fitness, Inc. and CFI Series, LLC
after a hearing. No report of proceedings or bystander’s report from the hearing is contained in the
record.
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¶ 12 On September 10, 2024, after a hearing on plaintiff’s pro se amended motion for default
judgment as to the remaining defendants, the circuit court entered an order that: (1) denied
plaintiff’s amended motion for default judgment; (2) on the court’s own motion, partially vacated
its prior August 1, 2024, order as to defendants Capital Fitness- Chicago Elston/CFI Series, LLC;
XSport Fitness; and XSport Fitness and XSport Gym & Tan; (3) dismissed plaintiff’s complaint
against defendants Capital Fitness- Chicago Elston/CFI Series, LLC; XSport Fitness; and XSport
Fitness and XSport Gym & Tan for (a) lack of jurisdiction, (b) lack of proper service reflected in
the court docket, and (c) lack of diligence in properly serving defendants. The court’s order noted
that the order was final and appealable as all defendants were dismissed. The record does not
contain a report of proceedings or bystander’s report from that hearing.
¶ 13 Plaintiff filed his pro se notice of appeal on September 17, 2024.
¶ 14 ANALYSIS
¶ 15 Before considering the merits of this appeal, we note that none of the defendants filed a
brief. The record in this case is simple, and we find that the issues can be resolved easily without
the aid of appellee briefs. We will therefore address plaintiff’s claims on their merits. First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶ 16 We further note that plaintiff has not provided a report of proceedings or a substitute. “[A]n
appellant has the burden to present a sufficiently complete record of the proceedings at trial to
support a claim of error, and in the absence of such a record on appeal, it will be presumed that the
order entered by the trial court was in conformity with law and had a sufficient factual basis. Any
doubts which may arise from the incompleteness of the record will be resolved against the
appellant.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984).
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¶ 17 As stated previously, plaintiff contends that the circuit court erred (1) in dismissing his
complaint for failure to properly serve defendants; (2) denying his amended motion for default
judgment against defendants for failure to answer the breach of contract complaint within 30 days
of receiving a properly served summons and/or second alias summons and original complaint; and
(3) denying his amended motion to vacate the dismissal of defendants Capital Fitness, Inc., CFI
Series, LLC, and Kelly Cartwright on August 1, 2024.
¶ 18 Here, the circuit court dismissed plaintiff’s pro se complaint on its own motion, for three
reasons: (1) lack of jurisdiction, (2) lack of proper service reflected in the court docket, and (3)
lack of diligence in properly serving defendants. We shall examine each in turn.
¶ 19 Personal jurisdiction over a party may be established either through service of process that
complies with statutory requirements or through the party’s voluntary submission to the court’s
jurisdiction. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 18. Whether a court
has obtained jurisdiction over a party through either of these avenues is a question of law subject
to de novo review. Witcher v. State Farm Fire & Casualty Co., 2018 IL App (5th) 170001, ¶ 13.
¶ 20 Proper service of process in this case is governed by sections 2-203, 2-204 and 2-206 of
the Code of Civil Procedure (Code) (735 ILCS 5/2-203, 2-204, 2-206 (West 2024)), as there are
five corporate defendants and one individual defendant.
¶ 21 Section 2-203 applies to service of process on individuals. The statute provides in pertinent
part that,
“[e]xcept as otherwise expressly provided, service of summons upon an individual
defendant shall be made (1) by leaving a copy of the summons with the defendant
personally, (2) by leaving a copy at the defendant’s usual place of abode, with some person
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of the family or a person residing there, of the age of 13 years or upwards, and informing
that person of the contents of the summons, provided the officer or other person making
service shall also send a copy of the summons in a sealed envelope with postage fully
prepaid, addressed to the defendant at his or her usual place of abode * * *. 735 ILCS 5/2-
203(a) (West 2024).
¶ 22 Section 2-204 applies to service of process in civil suits on corporations. The statute
provides that:
“[a] private corporation may be served by (1) 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
ILCS 5/2-204 (West 2024).
¶ 23 Section 2-206 governs service by publication; affidavit; mailing; certificate when service
cannot be completed because a defendant is no longer a resident in the State or cannot be located
and provides that the clerk shall publish notification of the suit and then send a copy by mail to
defendant’s last known address. 735 ILCS 5/2-206 (West 2024).
¶ 24 With those requirements in mind, we first turn our attention to the respondent’s contentions
that he provided proper service of process to defendants by sending a copy of the complaint by
certified first class mail and that the circuit court erred in dismissing his complaint against all
defendants (plaintiff’s issues I and III). Plaintiff asserts that his method of service was proper
pursuant to sections 2-213(e) and section 2-1301(d) of the Code (735 ILCS 5/2-213(e), 2-1301(d)
(West 2024)). Plaintiff’s arguments are misplaced.
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¶ 25 First, we find that plaintiff’s argument regarding the applicability of section 2-213 is
without merit because that section does not apply to the circumstances present in this case. Section
2-213, which governs waiver of service, provides, in pertinent part:
“(a) Notice and request for waiver. A plaintiff may notify a defendant of the
commencement of an action and request that the defendant waive service of a summons. The
notice and request shall:
(1) be addressed to an individual who is the defendant or who could be served as representative
of an entity that is defendant;
(2) be dispatched through first class U.S. mail or other equally reliable means;
(3) contain a copy of the complaint and identify the court in which it has been filed;
(4) inform the defendant of the consequences of compliance and of a failure to comply with
the request;
(5) allow the defendant a reasonable time to return the waiver, which shall be at least (i) 30
days from the date on which the request is sent or (ii) 60 days if the defendant is addressed
outside the United States; and
(6) provide the defendant with an extra copy of the notice and request and prepaid means of
compliance in writing.
***
(e) Right to refuse to waive service; effect of refusal. A defendant may refuse to waive
service of a summons. If a defendant does not return the waiver provided for in subsection
(a), the plaintiff must serve summons on that defendant as otherwise provided by this Code
and Supreme Court rules.” 735 ILCS 5/2-213(a), (e) (West 2024).
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¶ 26 The record does not contain a request by plaintiff for any of the defendants to waive service
of the complaint and summons at any time. Moreover, even if such request had been made, under
section 2-213(e) of the Code, a defendant has the right to refuse to waive service, in which case
the plaintiff must serve defendant properly. Id. At any rate, plaintiff’s argument is wholly without
merit as it is based on a misunderstanding of section 2-213(e), which does not provide for service
by certified first class mail.
¶ 27 We similarly reject plaintiff’s contention that service by mail was timely and proper under
section 2-1301(d) of the Code because that section governs default and confession judgments, and
not service of process. See 735 ILCS 5/2-1301(d) (West 2024).
¶ 28 As noted above, plaintiff did not include a report of proceedings or bystander’s report from
any of the several status hearings concerning service of his complaint and summons. Illinois law
requires a party seeking to have a case reviewed on appeal to present a full and complete record to
the court for its consideration. In re Marriage of Grauer, 153 Ill. App. 3d 125, 129-30 (1987).
When the record does not show all of the evidence considered by the circuit court, the court of
review will presume that the evidence supported the ruling below. Id. at 130. Illinois Supreme
Court Rule 321 (eff. Oct. 1, 2021) also provides that the record on appeal shall include any report
of proceedings. An issue related to a circuit court’s factual findings and basis for its legal
conclusions cannot be reviewed absent a report or record of the proceedings. Corral v. Mervis
Industries, Inc., 217 Ill. 2d 144, 156-57 (2005). To the extent that plaintiff’s issues on appeal
challenge any of the circuit court’s factual findings and the basis for its legal conclusion, we must
presume that the circuit court’s decision is supported by the facts and evidence presented to it
during the proceedings conducted below.
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¶ 29 Upon our de novo review of the circuit court’s order and the record, we conclude that the
circuit court did not err in dismissing plaintiff’s complaint.
¶ 30 The defendants in this case comprised five corporate entities and one individual. As to
defendants Capital Fitness, Inc., CFI Series, LLC, and Kelly Cartwright, plaintiff used the street
address of 100 Illinois Street, Suite 201, St. Charles, Illinois for all notifications and service. As to
defendants XSport Fitness, XSport Fitness and Gym & Tan, and Capital Fitness- Chicago
Elston/CFI Series, LLC, plaintiff used the street address of 4677 North Elston Avenue in Chicago
for all notifications and service.
¶ 31 With respect to plaintiff’s purported service on Kelly Cartwright, section 2-203 of the Code
requires that service on an individual be accomplished by serving the individual at his or her abode.
The record is clear that plaintiff never attempted to serve or served Cartwright at her abode but
merely mailed a copy of his complaint and summons to what was purportedly her work address.
While the record indicates that plaintiff was given several opportunities to issue alias summons,
he nevertheless persisted in ignoring the mandates of section 2-203 in attempting to serve
Cartwright. Plaintiff argues in his brief that Cartwright (and the other defendants to whom he
mailed the complaint and summons to in St. Charles) were outside of the Cook County Sheriff’s
jurisdiction for service. However, the record does not indicate that plaintiff requested leave for a
special process server or any other type of service for Cartwright, and we do not have a report of
proceedings or bystander’s report for any of the status hearings where service was discussed. We
must therefore presume that the circuit court’s conclusion that there was no proper service on
Cartwright and thus no jurisdiction was supported by the facts and evidence presented to it. We
affirm the circuit court’s determination that plaintiff did not properly serve Cartwright.
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¶ 32 The same conclusion applies to the five corporate defendants named in plaintiff’s
complaint. Section 2-204 of the Code requires that service on corporations be made on their
registered agents. The record does not indicate that plaintiff attempted to serve or serve any of the
registered agents for these entities. Rather, it appears that plaintiff merely mailed a copy of his
complaint and summons to the physical address of the corporate defendants, which is insufficient
under section 2-204. Plaintiff makes no argument in his brief as to why he did not serve the
registered agents of the corporate defendants. Again, plaintiff did not provide a report of
proceedings or bystander’s report of the many status hearings that were held regarding service;
thus, we must presume that the circuit court’s decision was supported by the facts and evidence
before it. We therefore affirm the circuit court’s conclusion that plaintiff failed to properly serve
the five corporate defendants and thus the court lacked jurisdiction over them.
¶ 33 The circuit court also found that plaintiff lacked diligence in attempting to serve the
defendants. We agree. Plaintiff’s complaint was filed in August 2022. It was not dismissed until
two years later, in September 2024, at which point none of the defendants had been served
properly. The record does not indicate that plaintiff ever engaged the sheriff to attempt service of
the complaint and initial summons in 2022, rather, plaintiff simply mailed a copy of the pleadings
to the defendants to what was purportedly their various places of business. Even without any report
of proceedings or bystander’s report included in the record, the record clearly shows that the circuit
court gave plaintiff many opportunities to serve the defendants over the next two years and plaintiff
did not follow the statutory requirements for service at any time. We affirm the circuit court’s
finding that plaintiff lacked diligence in serving defendants and affirm the dismissal of plaintiff’s
complaint against all of the defendants.
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¶ 34 Our conclusion that the circuit court properly dismissed plaintiff’s complaint for lack of
proper service necessarily requires us to affirm the circuit court’s denial of plaintiff’s amended
motion for default judgment. Whether to grant or deny a motion for default under section 2-1301
of the Code (735 ILCS 5/2-1301 (West 2024)) is within the sound discretion of the trial court and
its decision will not be reversed absent an abuse of discretion or a denial of substantial justice.
CitiMortgage, Inc. v. Moran, 2014 IL App (1st) 132430, ¶ 23. While plaintiff is correct that section
2-1301(d) (735 ILCS 5/2-1301(d) (West 2024)) allows for a default judgment to be entered for
failure to file an appearance or plead, that section presumes that proper service on the defendant
was made. Here there was no proper service on any of the defendants, thus there could be no
default judgment against any of the defendants. Therefore, the circuit court did not abuse its
discretion in denying plaintiff’s amended motion for default judgment.
¶ 35 Further, we note that such dismissal is a dismissal without prejudice pursuant to Illinois
Supreme Court Rule 103(b), which provides, in pertinent part, if the plaintiff fails to exercise
reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations,
the action as a whole or as to any unserved defendant may be dismissed without prejudice. ***”
Ill. S. Ct. R. 103(b) (eff. July 1, 2007). As such, plaintiff is free to refile his action prior to the
expiration of the statute of limitations, which is 10 years on a written contract. See 735 ILCS 5/13-
206 (West 2024).
¶ 36 We recognize that plaintiff is a pro se litigant and has represented himself throughout these
proceedings, which is a difficult task for anyone without legal training regardless of their level of
education and intelligence. However, Illinois courts treat pro se litigants the same as licensed
attorneys. A pro se litigant must comply with the same rules and is held to the same standard as a
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licensed attorney. Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 78. This is true both in the
circuit court and as well as this appellate court.
¶ 37 CONCLUSION
¶ 38 We affirm the circuit court’s dismissal of plaintiff’s pro se complaint against all defendants
for lack of proper service and affirm the circuit court’s denial of plaintiff’s pro se amended motion
for default judgment.
¶ 39 Affirmed.
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