Case: 1:12-cv-01811 Document #: 13 Filed: 06/28/12 Page 1 of 8 PageID #:113

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION PAMELA HUTUL, Plaintiff, v. DANIEL MAHER, Defendant. ) ) ) ) ) ) ) ) )

No.

12-cv-01811

Judge Robert W. Gettleman Magistrate Judge Arlander Keys

MOTION FOR LEAVE TO OBTAIN SERVICE OF PROCESS THROUGH ALTERNATIVE MEANS Pursuant to Rule 4(e)(1) of the Federal Rules of Civil Procedure and 5/2-203.1 of the Illinois Code of Civil Procedure (the Code), Plaintiff Pamela Hutul (Plaintiff) moves this Court to grant her leave to obtain substitute service of process on Defendant Daniel Maher. In support of her Motion, Plaintiff states as follows: ARGUMENT This Court should allow Plaintiff to obtain service of process on the Defendant through alternative means. The Defendant has engaged in a course of conduct designed to harm the Plaintiff and to do so without providing Plaintiff any recourse. The Named Defendant has inundated the Internet with fraudulent reviews of the Plaintiff on several websites, impersonated a colleague of the Plaintiff, a former colleague of the Plaintiff, a member of the legal profession, and other individuals. These reviews are devoted solely to harming the Plaintiff with defamatory statements directly affecting Plaintiffs profession and trade in the legal community (Defamatory Posts).

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As to identifying the individual responsible for the posts, the poster identified himself on the posts only with an amalgamation of a first name and last initial (Danm), the pseudonym Paul, or altogether anonymously. This precluded the Plaintiff from identifying him by the posts themselves. However, through discovery, the Plaintiff has identified the Named Defendant as Daniel Maher and obtained an electronic mail address used by Daniel Maher in the creation of the Defamatory Posts. Sending electronic communication to this electronic mail address can suffice as an alternative means of advising Daniel Maher of the litigation and his involvement therewith. As such, the Plaintiff moves this Court to allow such alternative means to suffice for purposes of having Daniel Maher served pursuant to the applicable rules. Standard for Service of Process Service of process must comport with the Fourteenth Amendment such that notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950). Rule 4(e) of the Federal Rules of Civil Procedure provides for such notice.1 In addition, Rule 4(e)(1) provides that service of process may be made through the law of the state where the district court is located or in which service is made. See FRCP 4(e)(1). In this case, Illinois law applies. In Illinois, 5/2-203(a) of the Code governs service of process on individuals.2 It states in relevant part:

Rule 4(e)(2) provides that service may be obtained by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. See FRCP 4(e)(2). Although 2-208 of the Code governs service of individuals outside the State, it states that the service of summons shall be made in a like manner as service within this State, by any person over 18 years of age not a party to the action. As such, 2-203(a) is applicable to the instant circumstances.
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Case: 1:12-cv-01811 Document #: 13 Filed: 06/28/12 Page 3 of 8 PageID #:115

[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 defendants usual place of abode, with some person 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). Where service of process has been made impractical under 2-203(a)(1) and (2), 2-203.1 provides that: the plaintiff may move, without notice, that the court enter an order directing a comparable method of service. The motion shall be accompanied with an affidavit stating the nature and extent of the investigation made to determine the whereabouts of the defendant and the reasons why service is impractical under items (1) and (2) of subsection (a) of Section 2-203, including a specific statement showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful. The court may order service to be made in any manner consistent with due process. 735 ILCS 5/2-203.1. Consequently, Illinois law provides the Court with discretion to accept and/or order substitute service of process in any manner consistent with due process that is reasonably calculated to apprise interested parties of the pendency of the action. Id. Substitute service may be obtained through a variety of methods consistent with 2203.1 and due process. This Court held that proper substitute service had been obtained by having the summons and complaint delivered through certified mail, return receipt requested, to a defendants business and residential addresses. United General Title Ins. Co. v. Tyer, Case No. 00 C 50453, 2001 U.S. Dist. LEXIS 5807, *2 (N.D. Ill. May 4, 2001) (citing Swaim v. Molton Company, 73 F. 3d 711, 715-716 (7th Cir. 1996) (acceptable service obtained where the summons and complaint had been sent certified mail, return receipt requested, despite the notices being returned and marked as refused)). The Court also noted that the plaintiff had made the additional step of having the summons and complaint posted at the defendants front door. Id.

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Additionally, this Court has held that emailing the summons and petition to a particular email address constituted a proper alternative means of service under 2-203.1. See Save-A-Life Found., Inc. v. Heimlich, 601 F. Supp. 2d 1005, 1007 (N.D. Ill. 2009) (referring to the Circuit Court of Cook County granting this particular method of service under 2-203.1). Discovery Efforts and Results in Identifying Defendants Here, Plaintiff has pursued significant efforts to determine the identity of the defendant for purposes of obtaining service of process upon him. In an effort to obtain more information about the Defendant, the Plaintiff sought and obtained leave to conduct expedited discovery. Order dated March 16, 2012 (Doc. #8); Declaration of Charles Lee Mudd Jr. (Mudd Decl.) 3. Through production in response to a subpoena served upon Yelp!, Inc. (Yelp), one of the websites on which Daniel Maher made the Posts, the Plaintiff obtained the email address (danielmaher95@yahoo.com) used to create the Danm Yelp account. Mudd Decl. 5. Daniel Maher provided this email address to Yelp when he created his Yelp account. Id. Furthermore, through production in response to a subpoena issued to Ripoffreport.com, the Plaintiff learned that the user Dan who created the Defamatory Posts on Ripoffreport.com provided the same email address, danielmaher95@yahoo.com, when creating his account at that website. Id. 6. Defendant also provided his full name, Daniel Maher, to Ripoffreport.com when creating his account. Id. 7. It should be noted that the Plaintiff posted information about the litigation and the discovery efforts on Ripoffreport.com as a rebuttal to Daniel Maher's post about the Plaintiff. Id. 8. After learning of the email address danielmaher95@yahoo.com, counsel for the Plaintiff issued a subpoena to Yahoo!, Inc. (Yahoo) for information about the account associated with that email address. Mudd Decl. 9. Yahoo produced documents identifying Daniel Maher as

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the individual associated with the email address danielmaher95@yahoo.com. Id. 10. Through the foregoing, the email address danielmaher95@yahoo.com belongs to Daniel Maher and has been used by him to create accounts he used to post Defamatory Statements to certain websites. See supra. Analysis Clearly, the Named Defendant did not want to be identified by the Defamatory Posts alone. See supra. Given his efforts to evade detection and hide his identity, service by means under 2-203(a) was impractical. Undaunted, the Plaintiff made significant efforts to determine the actual identity of the Named Defendant through discovery. In pursuing discovery, the Plaintiff posted content about the litigation in response or rebuttal to the post on Ripoffreport.com. Fortunately, the discovery succeeded in obtaining his name and email address. See supra. With Daniel Mahers email address, there now does exist an electronic means of communicating with the Defendant. See supra. Electronic communications have been found to be a proper means of obtaining substitute service of process. See Save-A-Life Found., Inc., 601 F. Supp. 2d at 1007. Consequently, the Court should allow Plaintiff to obtain substitute service on the Defendant pursuant to Rule 4(e)(1) of the Federal Rules and 5/2-203.1 of the Code so that Plaintiff may move forward with her claims against him. Id. Specifically, the Court should allow Plaintiff to effectuate proper service upon the Defendant by sending a copy of the Summons and Amended Complaint to danielmaher95@yahoo.com.3 Id. Such service comports with due process because it is reasonably calculated to apprise the Defendant of the pendency of
Unfortunately, Ripoffreport.com apparently does not permit direct communications to other individuals using the services. As for Yelp, it appears one needs to be a friend to send direct messages to a user. As such, direct communication with Daniel Maher through theses sites is not possible. That being said, as stated above, counsel for Plaintiff did post information related this litigation in response to Daniel Mahers post on Ripoffreport.com. Mudd. Decl. 8.
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this action and afford him an opportunity to present his objections. Indeed, he used this email address to create the accounts he used to make the Defamatory Posts. Therefore, this Court should grant Plaintiffs motion for leave to obtain service of process through alternative means. Id.; Save-A-Life Found., Inc., 601 F. Supp. 2d at 1007.

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CONCLUSION WHEREFORE, for the foregoing reasons, the Plaintiff moves this Court to grant her Motion for Leave to Obtain Service of Process through Alternative Means and allow service to be made upon Daniel Maher by sending electronic communications containing the amended complaint, summons, and any applicable orders to danielmaher95@yahoo.com

Dated: Chicago, Illinois June 28, 2012

Respectfully submitted, PLAINTIFF, PAMELA HUTUL

By: /s/Charles Lee Mudd Jr. One of Her Attorneys Charles Lee Mudd Jr. Mudd Law Offices 3114 West Irving Park Road Suite 1W Chicago, Illinois 60618 773.588.5410 (telephone) 773.588.5440 (facsimile) cmudd@muddlawoffices.com ARDC: 657957

Case: 1:12-cv-01811 Document #: 13 Filed: 06/28/12 Page 8 of 8 PageID #:120

CERTIFICATE OF SERVICE This is to certify that service of this MOTION FOR LEAVE TO OBTAIN SERVICE OF PROCESS THROUGH ALTERNATIVE MEANS was accomplished pursuant to Electronic Case Filing as to ECF Users and shall be served upon other parties having filed appearances, identified below, via postage pre-paid U.S. mail on the 28 day of June 2012.

No other parties have filed appearances.

/s/Charles Lee Mudd Jr. Charles Lee Mudd Jr. Attorney for Plaintiff

Charles Lee Mudd Jr. Mudd Law Offices 3114 West Irving Park Road Suite 1W Chicago, Illinois 60618 773.588.5410 (telephone) 773.588.5440 (facsimile) cmudd@muddlawoffices.com ARDC: 6257957

Case: 1:12-cv-01811 Document #: 13-1 Filed: 06/28/12 Page 1 of 2 PageID #:121

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION PAMELA HUTUL, Plaintiff, v. DANIEL MAHER, Defendant. ) ) ) ) ) ) ) ) )

No.

12-cv-01811

Judge Robert W. Gettleman Magistrate Judge Arlander Keys

DECLARATION OF CHARLES LEE MUDD JR. I, Charles Lee Mudd Jr., do hereby declare, testify and state as follows: 1. and Utah. 2. 3. I represent Pamela Hutul (Plaintiff) in the above captioned litigation. On March 16, 2012, this Court allowed the Plaintiff to proceed with limited, I am an attorney licensed to practice in the States of Illinois, Indiana, Connecticut

expedited discovery. (Dkt. No. 8). 4. Being allowed to proceed with limited, expedited discovery, I served subpoenas

upon Yelp!, Inc. (Yelp) and Ripoffreport.com seeking information relating to the defamatory posts made on those websites about the Plaintiff (the Defamatory Statements). 5. In response to the subpoena served upon it, Yelp produced documents identifying

the email address used to create the Danm Yelp account as danielmaher95@yahoo.com. 6. In response to the subpoena served upon it, Ripoffreport.com produced

documents identifying the email address used to create the Dan Ripoffreport.com account as danielmaher95@yahoo.com.

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7.

The documentation from Ripoffreport.com also identified a full name, Daniel

Maher, provided to Ripoffreport.com by the Defendant when creating his account. 8. My firm posted information about the litigation and the discovery efforts on

Ripoffreport.com as a rebuttal to Daniel Mahers post about the Plaintiff. 9. In response to the information received from Yelp and Ripoffreport.com, I served

a subpoena upon Yahoo!, Inc. (Yahoo) seeking information related to the danielmaher95@yahoo.com email address. 10. In response to the subpoena served upon it, Yahoo produced documents

identifying Daniel Maher as the individual associated with the email address danielmaher95@yahoo.com. 11. Throughout the documents produced by Yelp, Yahoo, and Ripoffreport.com, the

name Daniel Maher and the accompanying email address remained consistent. The name Daniel Maher also remained consistent with the pseudonyms Danm and Dan used on the websites. Based on this information, my firm and I amended the Complaint in the above-captioned action to add Daniel Maher as the defendant. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Dated this 28 day of June 2012

Charles Lee Mudd Jr.