No. 2--96--0213
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
JOHN WHITE and BARBARA WHITE, ) Appeal from the Circuit Court
) of Lake County.
Plaintiffs-Appellees, )
)
v. ) No. 93--L--1290
)
ROBERT RATCLIFFE III, )
)
Defendant-Appellant )
) Honorable
(Farrell Michael Putman, ) Bernard E. Drew, Jr.,
Defendant). ) Judge, Presiding.
JUSTICE GEIGER delivered the opinion of the court:
The defendant, Robert Ratcliffe III, appeals from the January
17, 1996, order of the circuit court of Lake County denying his
petition to vacate a default judgment pursuant to section 2--1401
of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 1994)).
Ratcliffe, a resident of London, England, argues that the trial
court lacked jurisdiction to enter the default judgment because he
was not served process in a manner authorized by the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters (the Hague Convention).
We affirm.
On September 23, 1993, the plaintiffs, John White and Barbara
White, filed a conversion action in the circuit court of Lake
County, alleging that the defendants, Ratcliffe and Farrell Michael
Putman, burglarized their home in December 1989. On November 15,
1993, the plaintiffs filed an amended complaint, containing the
same allegations.
Also on November 15, 1993, summons issued on the amended
complaint. On November 24, 1993, Putman was served, and on January
7, 1994, an appearance was filed on his behalf.
On November 16, 1993, in an attempt to serve Ratcliffe, the
plaintiffs' attorney mailed the summons and a copy of the amended
complaint via international registered mail to Ratcliffe's last
known address, 7 King Frederick IX Towers, Finland Street, Surrey
Quays, London, England, SE161TH. The plaintiffs' attorney
subsequently received a return receipt indicating that the
documents were received and signed for by "V. Ratcliffe." Although
the return receipt did not specify the date of delivery, the
postmark was dated December 16, 1993.
On or about December 16, 1993, Ratcliffe telephoned the
plaintiffs' attorney and stated that he would be visiting Illinois
before the end of 1993 and that he would retain a lawyer to defend
the action at that time. No appearance, however, was filed on the
defendant's behalf during the remainder of 1993. On January 6,
1994, the plaintiffs' attorney wrote Ratcliffe to advise him that
a default would be entered against him at the January 19, 1994,
status hearing if no appearance was filed before that time. In
response to the letter, Ratcliffe telephoned the plaintiffs'
attorney and stated that he was not hiring an attorney and that he
would file a pro se appearance and answer.
At the January 19, 1994, status hearing, the plaintiffs'
attorney advised the trial court that he had been in contact with
Ratcliffe and that it was Ratcliffe's intention to file a pro se
appearance and answer. The trial court continued the case to April
13, 1994, for another status hearing. On February 11, 1994, the
plaintiffs' attorney again wrote to Ratcliffe, advising him that if
he failed to file an appearance prior to the April 13, 1994, status
hearing, a default would be entered against him. Ratcliffe,
however, took no action to defend the case.
On April 13, 1994, the trial court entered a default against
Ratcliffe and set the case for prove up on June 13, 1994. On April
13, 1994, the plaintiffs' attorney sent copies of the default order
via both international registered mail and regular airmail. The
plaintiffs' attorney also sent a letter advising Ratcliffe that if
he desired to defend the case he would have to file a motion to
vacate the default judgment as soon as possible. Ratcliffe again
took no action to defend the case.
In order to avoid any potential future attack by Ratcliffe on
service of process, the plaintiffs' attorney requested that the
default judgment entered against Ratcliffe be vacated. The
plaintiffs' attorney then proceeded to serve Ratcliffe again using
the following alternate methods: On June 13, 1994, another alias
summons was issued. The plaintiffs' attorney then retained an
English process server through a London solicitor. The process
server attempted personal service several times in June and July,
but was unsuccessful; in the process, however, Ratcliffe was
alerted to these attempts to effect service on him. On July 14,
1994, Ratcliffe telephoned the plaintiffs' attorney to reiterate
that he would be filing a pro se appearance and answer.
On August 25, 1994, another alias summons was issued. The
plaintiffs' attorney then requested that the trial court issue an
official "Request for Service Abroad of Judicial or Extrajudicial
Documents" as required for service made pursuant to the Hague
Convention. These materials were sent via overnight Federal
Express International Delivery to the office of Her Majesty's
Principal Secretary of State for Foreign Affairs (the English
Central Authority). On October 20, 1994, the English Central
Authority proceeded to serve Ratcliffe the alias summons and
amended complaint.
On December 6, 1994, another alias summons was issued. This
alias summons was forwarded via overnight Federal Express
International Delivery to Karen Beer, an English process server.
On December 16, 1994, Beer personally served the alias summons and
amended complaint upon Ratcliffe. Beer made the following sworn
statements in the return of service:
"1. I am a person authorized under the Laws of England
to serve process issued through the Courts of England and
elsewhere.
2. On Friday the 16th day of December 1994 at 0830 hours
at 7 King Frederick IX Towers, Finland Street, Surrey Quays,
London SE161TH, England, I personally served Robert Ratcliffe
III with the Summons issued in this action *** bearing date
the 6th day of December 1994, *** said Summons[] being
accompanied by a copy of the Amended Complaint and Jury Demand
filed herein on the 15th day of November 1993.
3. At the time of service the [] Defendant Robert
Ratcliffe III admitted his identity to me and read the
proceedings served upon him."
Ratcliffe again took no action to defend the case.
On January 19, 1995, the plaintiffs filed a motion for entry
of a default judgment. On January 25, 1995, the trial court
entered a default judgment against the defendant and set the matter
for prove up on March 6, 1995. At the prove up, the trial court
heard the testimony of defendant Putman. Putman testified that
Ratcliffe had planned and carried out the burglary. At the
completion of Putman's testimony, the trial court entered judgment
against Ratcliffe in the amount of $130,060.29. Thereafter, the
action against Putman was dismissed without prejudice.
On November 1, 1995, Ratcliffe filed a special and limited
appearance and a section 2--1401 petition to vacate the default
judgment (see 735 ILCS 5/2--1401 (West 1994)). Ratcliffe made the
following arguments in the petition: (1) that the service of the
August 25, 1994, alias summons by the English Central Authority was
invalid because it was not completed within the 30-day period
during which the summons was valid; (2) that the service of the
December 6, 1994, alias summons by Beer was invalid because the
Hague Convention does not permit service by an independent process
server; (3) that the August 25, 1994, alias summons served through
the English Central Authority was invalid because it was not served
in duplicate as required by article 3 of the Hague Convention; and
(4) that the default judgment was entered in violation of article
15 of the Hague Convention, which requires a six-month waiting
period between service of process and the entry of a default
judgment.
The plaintiffs filed a verified answer to Ratcliffe's
petition, supported by 48 pages of exhibits documenting the service
attempts detailed above. The plaintiffs argued (1) that Ratcliffe
had been properly served by international mail, as permitted by
article 10(a) of the Hague Convention; (2) that Ratcliffe was
personally served by Beers, as permitted by article 10(c) of the
Convention; (3) that the Hague Convention does not require
duplicate service of the documents; (4) that the six-month period
required by article 15 of the Hague Convention applies only in
those instances where there has been no return of service; and (5)
that the trial court could not vacate the default judgment pursuant
to article 16 of the Hague Convention, because Ratcliffe had been
given sufficient time to defend the action. Alternatively, the
plaintiffs filed a motion to extend the 30-day time period during
which the English Central Authority could serve the August 25,
1994, alias summons.
On January 17, 1996, the trial court denied Ratcliffe's
section 2--1401 petition to vacate the default judgment. Ratcliffe
filed a timely notice of appeal.
Section 2--1401 of the Code of Civil Procedure provides a
mechanism by which a final judgment may be vacated. 735 ILCS 5/2--
1401 (West 1994). In order to obtain relief from a default
judgment pursuant to section 2--1401, the moving party must show
(1) that he has a meritorious defense to the action; (2) that he
has exercised due diligence in presenting such a defense to the
trial court; and (3) that he has exercised due diligence in filing
a petition pursuant to section 2--1401. Halle v. Robertson, 219
Ill. App. 3d 564, 568 (1991).
Generally, a section 2--1401 motion to vacate a default
judgment is addressed to the sound discretion of the trial court,
and its denial will be reversed only if the trial court abused its
discretion. Sterne v. Forrest, 145 Ill. App. 3d 268, 277 (1986).
In the instant case, however, Ratcliffe's section 2--1401 petition
challenges the jurisdiction of the trial court and argues that he
was not served process in a manner authorized by the Hague
Convention. Proper service of summons is a prerequisite for
obtaining in personam jurisdiction over a party, and a judgment
entered without proper service is void ab initio for lack of
jurisdiction over a defendant. Meldoc Properties v. Prezell, 158
Ill. App. 3d 212, 215 (1987). Indeed, a judgment entered without
proper service of process is void even if the party against whom a
judgment is entered had notice of the proceedings. State Bank v.
Thill, 113 Ill. 2d 294, 308-09 (1986). Since the issue of whether
a trial court has personal jurisdiction over a party is a question
of law, we will review the instant case de novo. See State Bank,
113 Ill. 2d at 308-09.
The plaintiffs initially argue that a number of the issues
raised in Ratcliffe's appellate brief are presented for the first
time on appeal. A review of these issues, however, reveals that
they are merely an elaboration on the challenges to service raised
in Ratcliffe's section 2--1401 petition. As already noted, a
challenge to service of process is a challenge to the jurisdiction
of the court. Meldoc Properties, 158 Ill. App. 3d at 215.
Ratcliffe properly preserved his objection to the trial court's
jurisdiction by filing a special and limited appearance and then by
filing his section 2--1401 petition to vacate within the time
permitted by law. See 735 ILCS 5/2--1401 (West 1994); R.W. Sawant
& Co. v. Allied Programs Corp., 130 Ill. App. 3d 71, 74 (1984).
Additionally, we note that a party may object to the trial court's
personal jurisdiction at any time. R.W. Sawant & Co., 130 Ill.
App. 3d at 74. Accordingly, we will consider all of Ratcliffe's
jurisdictional arguments relating to the service of process in the
instant case.
Our review of the record reveals that Ratcliffe received a
copy of the summons and amended complaint on three separate
occasions. On December 16, 1993, he received an alias summons and
a copy of the amended complaint via international registered mail;
on October 20, 1994, he was served with an alias summons and a copy
of the amended complaint by the English Central Authority; and on
December 16, 1994, he was served an alias summons and a copy of the
amended complaint by process server Beers.
Ratcliffe argues that the service attempts made through
international registered mail and the English Central Authority
were invalid because, in each instance, he did not receive the
alias summons within 30 days of its issue. Supreme Court Rule
102(b) mandates that "[n]o summons *** may be served later than 30
days after its date." 134 Ill. 2d R. 102(b). The alias summons
sent by international registered mail had an issue date of November
15, 1993, and was received by Ratcliffe on December 16, 1993. The
alias summons served through the English Central Authority had an
issue date of August 25, 1994, and was received by Ratcliffe on
October 20, 1994.
Without reaching the merits of Ratcliffe's argument, we note
that no such alleged defect existed with the alias summons served
by process server Beers. That alias summons was issued on December
6, 1994, and personally served on Ratcliffe on December 16, 1994.
Ratcliffe, therefore, was served the alias summons and amended
complaint within 30 days of its December 6, 1994, issue as required
by Rule 102(b).
Ratcliffe argues that the Hague Convention does not permit
personal service by an independent process server and, instead,
requires all service of process to be made through the English
Central Authority. Ratcliffe therefore argues that the December 6,
1994, alias summons personally served by Beers on December 16,
1994, was improper and thus ineffective to invoke the trial court's
jurisdiction. The plaintiffs respond by arguing that article 10(c)
of the Hague Convention expressly permits the service of judicial
documents directly through independent process servers in England.
The Hague Convention is a multinational treaty, which was
first drafted in 1965, for the purpose of creating an appropriate
means "to ensure that judicial and extrajudicial documents to be
served abroad shall be brought to the notice of the addressee in
sufficient time." Hague Convention, November 15, 1965, preamble,
20 U.S.T. 361, 362, T.I.A.S. No. 6638 (reprinted in 28 U.S.C.A.
Fed. R. Civ. P. 4, at 210 (West 1992)) (hereinafter 28 U.S.C.A.
Fed. R. Civ. P.). Both the United States and England are
signatories to the Hague Convention. 28 U.S.C.A. Fed. R. Civ.
P. 4, Note, at 122 (West Supp. 1996). The Hague Convention applies
"in all cases, in civil or commercial matters, where there is
occasion to transmit a judicial or extrajudicial document for
service abroad." 28 U.S.C.A. Fed. R. Civ. P. 4 at 210. By virtue
of the Supremacy Clause, the Hague Convention applies to the
service of process in the instant case and preempts any
inconsistent methods of service permitted by Illinois law.
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699,
100 L. Ed. 2d 722, 730, 108 S. Ct. 2104, 2108 (1988).
The Hague Convention sets out specific procedures for
accomplishing foreign service of process. Articles 2 through 6
of the Convention permit service via the "Central Authority"
designated by the country in which service is to be made. 28
U.S.C.A. Fed. R. Civ. P. 4 at 210-11. Although the Central
Authority is always to be made available as a means to effectuate
service, its use is not compulsory, and other methods of service
are provided in the remaining articles of the Convention.
Ackermann v. Levine, 788 F.2d 830, 838-39 (2d Cir. 1986). For
example, article 8 permits each contracting State "to effect
service of judicial documents upon persons abroad *** directly
through its diplomatic or consular agents." 28 U.S.C.A. Fed. R.
Civ. P. 4 at 211. Also, article 10(a) permits the service of
judicial documents "by postal channels" as long as the country
where service is to be made does not object. 28 U.S.C.A. Fed. R.
Civ. P. 4 at 212.
The relevant articles of the Hague Convention necessary to
resolve the instant case are articles 19 and 10(c). Article 19
expressly permits service of process by any method of service
allowed by "the internal law of the contracting State." 28
U.S.C.A. Fed. R. Civ. P. 4 at 213; Bankston v. Toyota Motor Corp.,
889 F.2d 172, 173 (8th Cir. 1989). Under article 19, any method of
service will be deemed effective as long as there is nothing
contained in the foreign nation's law, either explicitly or by
compelling implication, to suggest that the method violates some
deep-rooted policy of the nation involved. 28 U.S.C.A. Fed. R.
Civ. P. 4, Note C4--24, at 65 (West Supp. 1996).
Our review of English civil practice and procedure reveals
that the use of an independent process server is permitted in order
to effectuate service of process. Order 10 of the Rules of the
Supreme Court of England expressly requires that a defendant must
be personally served process commencing a lawsuit. Rules of the
Supreme Court of England, Order 10, rr. 1, 5. Such personal
service may be accomplished by employing a process server to leave
a copy of the document with the person to be served. Rules of the
Supreme Court of England, Order 65, r.2. Since the use of an
independent process server is expressly permitted under English
law, such a method of service would likewise be effective herein
pursuant to article 19 of the Hague Convention.
The use of an independent process server is also permitted
under article 10(c) of the Convention. Article 10(c) provides, in
pertinent part:
"Provided the State of destination does not object, the
present Convention shall not interfere with--
* * *
(c) the freedom of any person interested in a judicial
proceeding to effect service of judicial documents directly
through the judicial officers, officials or other competent
persons of the State of destination." 28 U.S.C.A. Fed. R.
Civ. P. 4 at 212.
Subparagraph (c) delineates three categories of persons who are
permitted to serve process: (1) judicial officers; (2) officials;
and (3) other competent persons. Therefore, provided that the
contracting country does not object, a foreign plaintiff would be
permitted to utilize any individual within one of these three
categories to effectuate service of process. An independent
process server authorized by English law to serve process falls
within the category of "other competent persons" permitted to
effectuate service. See Balcom v. Hiller, 46 Cal. App. 4th 1758,
1763-65 (1996); Vazquez v. Sund Emba AB, 548 N.Y.S.2d 728, 729-32,
152 A.D.2d 389, ___ (1989).
Ratcliffe argues that the United Kingdom has expressly
objected to the terms of article 10(c). Specifically, Ratcliffe
relies on the following portion of the United Kingdom's
ratification of the Hague Convention:
"With reference to the provisions of paragraphs (b) and
(c) of Article 10 of the Convention, documents for service
through official channels will be accepted in the United
Kingdom only by the central or additional authorities and only
from judicial consular or diplomatic officers of other
Contracting States." 28 U.S.C.A. Fed. R. Civ. P. 4 at 226.
Our reading of this language does not lead us to conclude that
United Kingdom has objected to article 10(c). Instead, we believe
this language was meant to be a clarification that any documents
for service through official channels will be accepted only by the
central or additional authority. The language quoted above does
not disturb that portion of article 10(c) which permits the use of
"other competent persons," such as private process servers, to
effect service of process without the aid of the English
government. We note that a similar interpretation of this language
has been adopted by the California appellate court in Balcom v.
Hiller, 46 Cal. App. 4th 1758, 1763-65 (1996). We therefore reject
Ratcliffe's contention that this declaration was meant to require
all foreign service of process to be effected through the English
Central Authority.
In light of the foregoing discussion, we conclude that English
law expressly permits the use of private process servers to obtain
personal service. Therefore, under either articles 19 or 10(c) of
the Hague Convention, the plaintiffs herein were permitted to hire
an independent process server to effectuate service on Ratcliffe in
the United Kingdom. Beer testified in her affidavit of service
that she was "a person authorized under the Laws of England to
serve process issued through the Courts of England and elsewhere."
Beer testified that on December 16, 1994, she personally served
Ratcliffe the December 6, 1994, alias summons and a copy of the
amended complaint and jury demand. Beer also testified that
Ratcliffe "admitted his identity to [her] and read the proceedings
served upon him." Based on such testimony, we conclude that
Ratcliffe was properly served the December 6, 1994, alias summons
within 30 days of its issue. Moreover, we find that such service
was made in compliance with both English law and the Hague
Convention and was therefore sufficient to invoke the trial court's
personal jurisdiction over Ratcliffe.
Ratcliffe's next argument on appeal is that, even if service
was proper, the trial court lacked the authority under article 15
of the Hague Convention to enter the January 25, 1995, default
judgment. Article 15 provides, in pertinent part:
"Where a writ of summons or an equivalent document had to
be transmitted abroad for the purpose of service, under the
provisions of the present Convention, and the defendant has
not appeared, judgment shall not be given until it is
established that--
(a) the document was served by a method prescribed by the
internal law of the State addressed for the service of
documents in domestic actions upon persons who are within its
territory, or
(b) the document was actually delivered to the defendant
or to his residence by another method provided for by this
Convention, and that in either of these cases the service or
the delivery was effected in sufficient time to enable the
defendant to defend.
Each contracting State shall be free to declare that the
judge, notwithstanding the provisions of the first paragraph
of this article, may give judgment even if no certificate of
service or delivery has been received, if all the following
conditions are fulfilled--
(a) the document was transmitted by one of the methods
provided for in this Convention,
(b) a period of time of not less than six months,
considered adequate by the judge in the particular case, has
elapsed since the date of the transmission of the document,
(c) no certificate of any kind has been received, even
though every reasonable effort has been made to obtain it
through the competent authorities of the State addressed." 28
U.S.C.A. Fed. R. Civ. P. 4 at 212-13.
Ratcliffe argues that in the instant case the six-month waiting
period required by subparagraph (b) of the second paragraph had not
elapsed prior to the entry of the default order. Ratcliffe points
out that personal service was made by Beer on December 16, 1994,
while the default was entered January 25, 1995. This argument is
without merit.
The six-month waiting period mandated by subparagraph (b) of
the second paragraph applies only in those instances where "no
certificate of service or delivery has been received." This was
not the case herein. As discussed above, Beer provided an
affidavit of service which was filed with the trial court. As the
plaintiffs were able to provide a certificate of service, only the
first paragraph of article 15 had to be satisfied prior to the
trial court's entry of a default judgment. As cited above, that
paragraph requires that, prior to the entry of a default, the trial
court determine (1) that service was proper under the internal law
of the country where the defendant is to be served; (2) that the
document was actually delivered to the defendant; and (3) that
service was effected in sufficient time for the defendant to
defend.
Each of these prerequisites was satisfied in the instant case.
First, as already noted, the plaintiffs' use of an independent
process server to serve the alias summons and amended complaint was
permitted under English law. Second, Beer's affidavit of service
evidences that Ratcliffe was personally served the alias summons
and amended complaint on December 16, 1994. In regard to whether
Ratcliffe was served the documents in sufficient time to defend the
action, we note that the default order was not entered until
January 25, 1995, which was 40 days after Ratcliffe was served.
This period of time was 10 days longer than the 30-day period
during which a defendant is required to answer or appear. 134 Ill.
2d R. 181. Additionally, Ratcliffe had received notice of the
instant lawsuit on at least two other occasions dating back to
December 16, 1993. Ratcliffe has spoken with the plaintiffs'
attorney on several occasions regarding the need for him to defend
the action. We therefore conclude that Ratcliffe had sufficient
time prior to the entry of the default judgment to defend this
action. As all three requirements of the first paragraph of
article 15 were satisfied, we conclude that the trial court
properly entered default judgment against Ratcliffe.
Ratcliffe's final argument on appeal is that the trial court
violated article 16 of the Hague Convention by refusing to grant
his section 2--1401 petition to vacate default judgment. Article
16 of the Hague Convention provides, in pertinent part:
"When a writ of summons *** [is] transmitted abroad for
the purpose of service, under the provisions of the present
Convention, and a judgment has been entered against a
defendant who has not appeared, the judge shall have the power
to relieve the defendant from the effects of the expiration of
the time for appeal from the judgment if the following
conditions are fulfilled:
(a) the defendant, without any fault on his part, did not
have knowledge of the document in sufficient time to defend,
or knowledge of the judgment in sufficient time to appeal, and
(b) the defendant has disclosed a prima facie defense to
the action on the merits." 28 U.S.C.A. Fed. R. Civ. P. 4 at
213.
Ratcliffe argues that at no time prior to the entry of the default
judgment order did he receive notice that the plaintiffs were
seeking a default judgment. Ratcliffe argues that he did not learn
of the default judgment until October 1, 1995, when his father was
telephoned by the plaintiffs. Ratcliffe therefore argues that
under subparagraph (a) of article 16 he did not have knowledge of
the default judgment in time to defend. Ratcliffe also argues that
he has a prima facie defense to the action, as he did not take part
in the burglary of the plaintiffs' residence.
Despite Ratcliffe's arguments to the contrary, we find that he
has failed to demonstrate that he did not receive service of
process in sufficient time to defend this action. Ratcliffe was
properly served process by Beers on December 16, 1994, 40 days
prior to the entry of default. The alias summons which was served
on Ratcliffe expressly stated that if he failed to file an answer,
or otherwise appear, within 30 days of receipt, "a judgment or
decree by default may be taken against [him] for the relief prayed
in the complaint." Moreover, Ratcliffe had knowledge of this suit
as far back as December 16, 1993, when he received a copy of the
alias summons and the amended complaint by international registered
mail. Therefore, Ratcliffe's failure to defend this action or
vacate the default judgment entered by the trial court was his own
fault. We therefore conclude that the trial court did not abuse
its discretion in denying Ratcliffe's section 2--1401 petition to
vacate the default judgment.
For the foregoing reasons, the judgment of the circuit court
of Lake County is affirmed.
Affirmed.
BOWMAN and RATHJE, JJ., concur.