Cunningham v. Montes, No. 17-2516 (7th Cir. 2018)

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Justia Opinion Summary

Montes owns houses in California and in Wisconsin. After filing suit, Cunningham arranged for service of process at the Wisconsin address. No one answered the door. The process server called Montes, who refused to provide his current location. The judge authorized service by publication. Cunningham published notice in periodicals that circulate only in the Midwest. When Montes did not answer, the court entered a default. After learning about the case, Montes unsuccessfully asked the court to set aside the default. The judge wrote that “Montes has rather persistently sought to evade service in both California and Wisconsin" but did not describe what Montes has done to evade service. The Seventh Circuit vacated. Wis. Stat. 801.11(1), states that when “reasonable diligence” has not succeeded in producing service in hand, a court may authorize service by publication. The court did not explain why the “reasonable diligence” standard was satisfied when service was attempted at only one of a defendant’s known residences. Cunningham knew Montes’s California address. Wisconsin requires a plaintiff who knows or readily can learn that a defendant has multiple addresses to attempt to serve the defendant at each address. Given the lack of any effort to serve Montes in California, however, it would be difficult to make a finding that he is evading service in this case.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17-2516 CRAIG CUNNINGHAM, Plaintiff-Appellee, v. MICHAEL MONTES, et al., Defendants-Appellants. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 16-cv-761-jdp — James D. Peterson, Chief Judge. ____________________ ARGUED FEBRUARY 8, 2018 — DECIDED FEBRUARY 21, 2018 ____________________ Before FLAUM, EASTERBROOK, and MANION, Circuit Judges. EASTERBROOK, Circuit Judge. Michael Montes owns two houses, one in California and the other in Wisconsin. After ling this suit, Craig Cunningham arranged for service of process at the Wisconsin address. No one came to the door. The process server called Montes, who refused to provide his current location. After an ex parte submission from Cunningham, the district judge authorized service by publication. 2017 U.S. Dist. LEXIS 26804 (W.D. Wis. Feb. 27, 2017). 2 No. 17-2516 Cunningham then published notice in periodicals that circulate only in the Midwest. When Montes did not answer the complaint, the district court entered a default. After learning about this case from a defendant in another of Cunningham’s suits, Montes asked the court to set aside the default. See Fed. R. Civ. P. 55(c). The judge declined, writing that “Montes has rather persistently sought to evade service in both California and Wisconsin”, 2017 U.S. Dist. LEXIS 111115 at *5 (W.D. Wis. July 18, 2017), and entered a judgment for more than $175,000. The judge did not elaborate on his statement that “Montes has rather persistently sought to evade service in both California and Wisconsin”; indeed, the judge did not relate what Montes has done to evade service in either state. True, no one opened the door when a deputy sheri arrived in Wisconsin with a summons, but being at a di erent home in a di erent state is not a form of evading service. True, Montes did not provide his address when the deputy sheri called, but anyone can claim over a phone to be a public o cial with a legitimate need for information; few people will provide personal details to strangers in response to cold calls. And there is no evidence that Montes has evaded service in California, because Cunningham concedes that he has not tried to serve Montes there. The propriety of resorting to publication depends on Wis. Stat. §801.11(1), which says that when “reasonable diligence” has not succeeded in producing service in hand, then a court may authorize service by publication. The district court did not explain why the “reasonable diligence” standard is satis ed when service is akempted at only one of a defendant’s known residences. (Cunningham concedes knowing Mon- No. 17-2516 3 tes’s address in California.) Wisconsin requires a plainti who knows or readily can learn that a defendant has multiple addresses to akempt to serve the defendant at each address. Compare Haselow v. Gauthier, 212 Wis. 2d 580, 585–89 (App. 1997), with Loppnow v. Bielik, 2010 WI App 66, ¶¶ 20– 21. Cunningham has not done that. Nor did the judge explain why a single visit from a process server is “reasonable diligence”; Wisconsin requires more e ort than that. See Bene cial Finance Co. v. Lee, 37 Wis. 2d 263, 269 (1967); Heaston v. Austin, 47 Wis. 2d 67, 74 (1970). At oral argument Cunningham told us that he decided not to serve Montes in California because listings on the Internet show that the California house is available for rent by the week. Cunningham concluded that Montes does not live in California at all. That’s not a good inference. Many people who divide their time between two houses try to cover part of the cost by renting out the place they are not using at the time. Businesses o er time-share services to homeowners, and the advent of Airbnb enables owners to handle these arrangements on their own. It would not be sound to treat as unoccupied (by the owner) any house available to rent by the day or week. And the district judge did not so treat Montes’s house in California. Neither, however, did the judge explain how the statutory requirement of “reasonable diligence” is satis ed by a plainti who did not try to serve the defendant at one of the defendant’s known addresses. Montes led an a davit stating that his principal residence is the house in California and listing all dates when he and his wife were in Wisconsin during 2016 and the rst half of 2017. If the statements in the a davit are true, then Montes was in California when the process server arrived in Wis- 4 No. 17-2516 consin. Cunningham suspects that Montes is lying; maybe the district judge does too, but the judge did not nd that the statements in this a davit are false. If Montes is playing a shell game—claiming to be in Wisconsin when process servers arrive in California, and in California when process servers arrive in Wisconsin—that would support a nding that he is evading service. Given the lack of any e ort to serve him in California, however, it would be di cult to make such a nding in this case. Montes appeared in this litigation promptly after learning of its existence; that is a mark in his favor. We cannot exclude the possibility that he has tried to play games, but the absence of any factual nding to that e ect (after adversarial rather than ex parte procedure) requires further proceedings. Unless new evidence shows that Wis. Stat. §801.11(1) has been satis ed despite Cunningham’s decision not to akempt service in California, the default must be vacated and the case decided on the merits. VACATED AND REMANDED
Primary Holding

Wisconsin requires a plaintiff who knows or readily can learn that a defendant has multiple addresses to attempt to serve the defendant at each address.


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