Johnson v. Burken

727 F. Supp. 398, 1989 U.S. Dist. LEXIS 10930, 1989 WL 158636
CourtDistrict Court, N.D. Illinois
DecidedSeptember 13, 1989
DocketNo. 89 C 1580
StatusPublished
Cited by2 cases

This text of 727 F. Supp. 398 (Johnson v. Burken) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Burken, 727 F. Supp. 398, 1989 U.S. Dist. LEXIS 10930, 1989 WL 158636 (N.D. Ill. 1989).

Opinion

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Defendant Patrick H. Burken has moved to dismiss, under Rule 12(b)(5), for the insufficiency of service of process. For the reasons set forth below, that motion is denied.

Background

On August 29, 1986, defendant Burken and plaintiff Donald Johnson were involved in an automobile accident while both were driving on Green Bay Road in Waukegan, Illinois. Johnson blamed Burken for this accident, and consequently, in May 1988, he brought this suit against Burken in the Circuit Court for the Nineteenth Judicial Circuit, Lake County, Illinois. In September of the same year, Johnson purported to serve Burken, pursuant to Illinois’ non-resident motorist statute, Ill.Rev.Stat. ch. 95V2, para. lO-SOlib).1 Johnson served a summons on Secretary of State Jim Edgar on September 8. Within ten days thereafter, on September 15, Johnson mailed a copy of the summons and complaint to Burken at his last known address. Subsequently, Johnson filed an affidavit of compliance with the Clerk of the Circuit Court.

But there was a slight problem with the service of process. Even though the affidavit stated that the copy of the summons and complaint had been sent to Burken’s last known address by registered mail, as required by statute, Johnson’s attorney had [399]*399actually sent it by certified mail. Burken never received the summons and complaint, although it is not clear whether he would have received them had they been sent by registered mail. At any rate, the summons and complaint ultimately were returned to sender, and Burken’s insurance company only learned of the suit in October 1988, when Johnson’s attorney sent a letter suggesting settlement. The record does not reveal when Burken, a member of the Navy who apparently was at sea during this time, learned of the suit.

Burken’s insurance company retained counsel on Burken’s behalf, and counsel entered a limited appearance in state court. Counsel subsequently moved to quash service as insufficient, but on January 31, 1989, Judge Jack Hoogasian, to whom the case was assigned, denied the motion to quash. On February 9, Judge Hoogasian also denied Burken’s motion to vacate and reconsider. On February 27, Burken removed the case to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. Our jurisdiction is premised on the diversity of citizenship between Johnson, a citizen of Illinois, and Burken, a citizen of Iowa.

Soon after removing the case to this Court, Burken filed his first motion to dismiss, making the same arguments that he had made before Judge Hoogasian in state court: first, that service was improper because Johnson had sent the required copies of the summons and complaint by certified rather than registered mail, and second, that Johnson’s affidavit of compliance failed to establish that Burken was actually a non-resident of Illinois and thus failed to establish that the non-resident motorist statute applied. (Curiously, Burken made this second argument even though his notice of removal admitted that he was a resident of Iowa.) Johnson responded that Burken was collaterally estopped to make either argument, since Judge Hoogasian had already rejected them. Johnson also informed us, however, that he had again attempted service on Burken, who was at this time stationed in Norfolk, Virginia. It was our understanding that Burken did not dispute that Johnson’s second attempt at service was proper. Accordingly, on May 30, we denied Burken’s first motion to dismiss as moot.

As it turned out, our understanding was incorrect, for on June 8, Burken filed his second motion to dismiss. This time he contended that Johnson’s second attempt at service was improper because it did not comport with the requirements of the Illinois Long-Arm Statute. Johnson again responded by arguing that his original attempt at service was sufficient, and that the validity of the second attempt at service need not be considered. We agree with Johnson that the arguments raised in the second motion to dismiss need not be considered. As we describe in more detail below, Judge Hoogasian’s decision is now the law of the case, and we are unwilling to disturb it.

Analysis

The Seventh Circuit has held that “[i]n determining the validity of service prior to removal, a federal court must apply the law of the state under which the service was made, and the question of amenability to suit in diversity actions continues to be governed by state law even after removal.” Allen v. Ferguson, 791 F.2d 611, 616 n. 8 (7th Cir.1986); see also 4A C. Wright & A. Miller, Federal Practice and Procedure § 1082, at 5-6 (2d ed.1987). Applying Illinois law, Judge Hoogasian concluded that service was sufficient. This decision clearly is not binding on us; “[b]eing interlocutory, [the state court’s decision is] subject to reconsideration, and [continues] to be so up to the passing of a final decree.” General Investment Co. v. Lake Shore & Michigan Southern Railway Co., 260 U.S. 261, 267, 43 S.Ct. 106, 110, 67 L.Ed. 244 (1922); see also Daniels v. McKay Machine Co., 607 F.2d 771, 774 (7th Cir.1979). Still, the Seventh Circuit and a leading treatise indicate that a federal court may invoke the law of the case doctrine to follow decisions issued by a state court prior to removal. See PaineWebber Inc. v. Farnam, 870 F.2d 1286, 1291 (7th Cir.1989); Redfield v. Continental Casualty Co., 818 F.2d 596, 605 (7th Cir.1987); 18 C. Wright, A. Miller & F. Cooper, [400]*400Federal Practice and Procedure § 4478 at 797-98 (1981).2

At its most basic, the law of the case doctrine “provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.” Redfield, 818 F.2d at 605. “In order for a ruling to constitute the law of the case, the question of law presented in the current action must have been actually decided in the former proceeding.” PaineWebber, 870 F.2d at 1291. An issue may be “actually decided” even if the original court did not make an express ruling, if the latter court “can determine that the issue in question was decided by necessary implication.” Id. The Seventh Circuit has emphasized that the law of the case is a discretionary doctrine, and will not be enforced where it is clearly erroneous or where doing so would produce an injustice. Redfield, 818 F.2d at 605.

Applying these general principles to this case, we conclude that Judge Hoogasian decided, by necessary implication, the legal issues raised by Burken’s first motion to dismiss in this Court.

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Bluebook (online)
727 F. Supp. 398, 1989 U.S. Dist. LEXIS 10930, 1989 WL 158636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-burken-ilnd-1989.