As an attorney for small businesses and individuals, one of the most frustrating challenges is enforcing a contract or otherwise taking legal action against a Defendant that is trying everything possible to avoid service of a lawsuit.
Plaintiffs must first attempt to serve Defendants by personal service through a local Sheriff or special process server. This can be next to impossible when a Defendant has moved, sold their property, simply refuses to answer the door when the server arrives, or otherwise takes steps to avoid personal service. The Illinois Supreme Court (through Illinois Supreme Court Rule 102(f)) has recently provided a solution to this problem by allowing Plaintiffs to seek a special Order of the court to serve a Defendant through email, social media, or via text message.
As part of the Motion, the Plaintiff, through an affidavit from the attorney, must demonstrate that further attempts at personal service are impractical.
- This can be shown through listing past attempts at personal service. Although not statutorily required, we would recommend ordering a skip trace (background check) from a special process server.
- A skip trace can reveal a Defendant’s last known addresses. Demonstrating that you have conducted a background check and attempted personal service at the addresses on the skip trace, can be strong evidence to support the argument that further attempts at personal service are impractical.
Next, Plaintiff must further provide evidence that Defendant has recently used the email address, phone number, or social media account through which you are requesting authority to serve. This can be demonstrated through recent text messages, emails, or examples of activity on the social media account. The court’s essential goal is to ensure due process and fairness, and given the prevalent use in today’s day of communicating via text, email, and general activity on social media, it is very possible to persuade a court to grant you the authority to serve a Defendant via email, text, or social media.
After receiving the court’s permission, the Plaintiff must follow the guidelines set forth in Illinois Supreme Court Rule 102(f) – for example, if serving by text message, a Plaintiff must text the language quoted in the Rule and attach the Summons, Complaint, and any other relevant documents to the text message. Following the text, Plaintiff must mail a copy of the Summons and Complaint to the Defendant’s last known address. Finally, Plaintiff must file a proof of service stating the method and date of service, that a copy was sent to Defendant’s last known address, and a screenshot of the email/text/post.
If you are worried about being able to file and serve a lawsuit, talk to your attorney about seeking a special Order of the court to serve by email, text, or social media. The Illinois Supreme Court has made it far simpler to serve Defendants that may be trying to hide from you.