United States District Court, W.D. Wisconsin
D. PETERSON DISTRICT JUDGE
Acosta brings this lawsuit alleging that he was injured while
being transported to court by van, because his seat belt was
not properly fastened. I granted Acosta leave to proceed on
Eighth Amendment claims against defendant “G-Four-S
Transportation Services” and its employees, defendants
Bianchi, Ramstack, and Matt Kennedy. In the same order, I
directed the United States Marshals Service to serve the
complaint on each of the defendants. However, the Marshals
Service was unable to serve the defendants because the
Marshal was unable to locate G-Four-S Transportation
Services. See Dkt. 16.
response, Acosta submitted a letter notifying the court that
the name of G-Four-S Transportation Services is
“G4S.” My research showed that “G4S Secure
Solutions” is a company whose Milwaukee office address
is listed as 700 W. Virginia St. on their company website at
www.g4s.us/en/Contact-Us/Local-Offices. I provided
that address to the Marshals Service and directed another
attempt at service on defendants. See Dkt. 19.
Marshals Service returned the service forms on this second
service attempt, showing that an individual named
“Garan Chivinski, HR” was served at 700 W.
Virginia St., Suite 201, Milwaukee, Wisconsin 53204, the
workplace address for G4S. Dkt. 25. However, to date, none of
the defendants have answered or otherwise responded to the
has now filed a motion for entry of default. Dkt. 28. But the
Seventh Circuit favors disposing of cases on their merits as
opposed to terminating them by default judgment. Cracco
v. Vitran Express, Inc., 559 F.3d 625, 631 (7th Cir.
2009). And “[b]efore a default can be entered, the . .
. party must have been effectively served with
process.” 10A Wright & Miller, Federal Practice and
Procedure § 2682 (4th ed.). As I discuss below, it seems
likely that none of the defendants have been properly served.
I will withhold a ruling on Acosta's motion and give the
Marshals Service a chance to either re-serve the individuals
under Federal Rule of Civil Procedure 4 or Wisconsin law, or
supplement the service returns with an explanation of how
service was in fact properly accomplished.
Service to individual defendants
provides an exclusive list of the methods by which an
individual may be properly served with a summons and
complaint. They are: (1) personal delivery to the individual;
(2) leaving copies at the individual's “dwelling or
usual place of abode” with a person of suitable age and
discretion who resides there; (3) delivery to an authorized
agent of the individual; or (4) service effected pursuant to
the law of the state where the district court sits.
Fed.R.Civ.P. 4(e). The delivery of the summons and amended
complaint in this case was not achieved by any of these four
Chivinski is not a defendant in this case, so personal
delivery was not made. The delivery occurred at ¶
4S's workplace, not at the dwelling or usual place of
abode of any of the individuals. Nor is there any evidence
that Chivinski is an agent authorized to accept service on
any individual's behalf. I am not aware of any law that
suggests a human resources representative, or any workplace
supervisor, is an agent authorized to accept service on an
individual's behalf, absent an explicit agreement.
Wisconsin law authorizes service of a summons to a
“natural person” only by one of the following
methods: (1) personal delivery; (2) leaving a copy at a place
of abode; (3) delivery to an authorized agent; or (4)
publication. See Wis. Stat. § 801.11(1). The
first three criteria were not met for the same reasons set
forth above. And, as no publication attempt was made, neither
was the fourth criterion. In particular, I note that the
Wisconsin Supreme Court has found service to an individual
ineffective when a copy of a summons and complaint was left
at a workplace. See Mared Indus., Inc. v. Mansfield,
2005 WI 5, ¶ 7, 277 Wis.2d 350, 690 N.W.2d 835. Further,
the Seventh Circuit has commented that Illinois's service
statute, 735 Ill. Comp. Stat. 5/2-203, which is substantially
similar to Wis.Stat. § 801.11, is not satisfied by
service to an individual's employer. See Cardenas v.
City of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011).
leads me to suspect that the individual defendants have not
been properly served. But one thing that gives me pause is
that G4S and its individual employees were served similarly
by the Marshal in a previous case before this court. In that
case, Austin v. G4S Secure Sols. USA, service was
accepted on behalf of individual G4S employees Shane L.
Peterson and Shantel L. Belot by a “G4S
Representative.” No. 15-cv-259-jdp, (W.D. Wis. filed
May 4, 2015), Dkt. 25. Those individual defendants then
appeared, jointly represented by G4S's counsel, and
answered the complaint.
remains possible that the individual defendants have an
explicit agreement with G4S to have its human resources
department act as their agent for purposes of service. But
the service returns (in either this case or Austin)
do not show that there is such an agreement, and the
Wisconsin Supreme Court has explicitly disfavored this
approach to service. Mared Indus., 2005 WI 5, ¶
38 (“We pause to recognize and emphasize that this case
illustrates how risky it is to attempt to serve a
defendant's agent. Because an agent must have actual
express authority to accept service of summons . . .
plaintiffs who choose to effectuate service under this
provision had best proceed with extreme care, while being
mindful that even the utmost care may not reveal the true
scope of an agent's authority.”). I will give the
Marshals service a chance to either re-serve the individuals
under Rule 4 or Wisconsin law, or supplement the service
returns with an explanation of how service was in fact
Service to corporate defendant
provides that a corporate defendant may be served by either
“delivering a copy of the summons and of the complaint
to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service
of process” or in a manner pursuant to the law of the
state where the district court sits. Fed. R Civ. P. 4(h).
Here, the relevant Wisconsin statute provides that a
corporate defendant may be properly served by delivering the
summons and complaint to “an officer, director or
managing agent of the corporation” or to “the
person who is apparently in charge” of the office of
such person. Wis.Stat. § 801.11(5)(a). When a process
server reasonably, even if mistakenly, believes the person
they serve is in charge of an office, service is effective.
Hagen v. City of Milwaukee Employes' Ret. Sys.
Annuity & Pension Bd., 2003 WI 56, ¶ 21, 262
Wis.2d 113, 663 N.W.2d 268.
case, I do not have enough information to determine if
service to the corporate defendant was effective. A job
description of “HR” does not, by itself, show
that the person served held a position that would satisfy the
criteria of either Rule 4 or Wis.Stat. § 801.11(5). I
also cannot conclude that the Marshal reasonably believed
that Chivinski was in charge of the G4S office, as there is
no explanation on the service return explaining why the
Marshal chose to deliver the summons to Chivinski. So, as
with the individual defendants, I will give the Marshals