Alonso v. Onirem Investments, LLC. et al, No. 2:2023cv00132 - Document 17 (N.D. Ind. 2023)
Court Description: OPINION AND ORDER: The Court ORDERS that Plaintiff's Motion for Alternative Service 12 is GRANTED. Plaintiff is DIRECTED to serve Defendants as outlined in Order. The Court sua sponte EXTENDS the deadline for Plaintiff to effect service from 12/26/2023 to 1/15/2024. Plaintiff is instructed to FILE a return of service showing that service has been effected in compliance with this order. Signed by Magistrate Judge Joshua P Kolar on 12/13/2023. (ash)
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Alonso v. Onirem Investments, LLC. et al Doc. 17 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION JULIO CESAR ALONSO, Plaintiff, v. ONIREM INVESTMENTS, LLC and JOEL MERINO, Defendants. ) ) ) ) ) ) ) ) ) ) CAUSE NO.: 2:23-CV-132-PPS-JPK OPINION AND ORDER This matter is before the Court on Plaintiff’s Motion for Alternative Service [DE 12]. Plaintiff Julio Cesar Alonso indicates he has repeatedly tried to serve Defendants Onirem Investments, LLC and Joel Merino without success. Alonso requests that he be permitted to serve Defendants by certified mail and by regular mailing to two addresses––3556 W. 73rd Ave., Apt. 2, Merrillville, IN, 46410, and 7510 Marshall St., Merrillville, IN 46410. On October 31, 2023, the Court entered an order extending the service deadline to December 26, 2023 and taking Alonso’s request for an order allowing alternative service under advisement. [DE 15]. Alonso was directed to provide additional factual details in support of his request by filing either a supplement to his motion or an amended motion. Alonso filed a supplemental affidavit on December 4, 2023. [DE 16]. For the reasons that follow, the Court now grants Alonso’s Motion for Alternative Service [DE 12]. DISCUSSION In federal court, service on an individual or a corporation can be achieved by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1), 4(h)(1)(A). Dockets.Justia.com Indiana law permits service on an individual by, among other things, “sending a copy of the summons and complaint by registered or certified mail . . . to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter,” Ind. R. Tr. P. 4.1(A)(1), or “leaving a copy of the summons and complaint at his dwelling house or usual place of abode,” together with sending the summons and complaint “by first class mail, to the last known address of the person being served,” Ind. R. Tr. P. 4.1(A)(3), (B). Service on an “organization” can be achieved by service on an individual who is “an executive officer [or] an agent appointed or deemed by law to have been appointed to receive service.” Ind. R. Tr. P. 4.6(A). The Court may also approve an alternate method for service if it is “reasonably calculated to give the defendant actual knowledge of the proceedings and an opportunity to be heard.” Ind. R. Tr. Pro. 4.14, 4.15(F); see also Swaim v. Moltan Co., 73 F.3d 711, 721 (7th Cir. 1996) (holding that Trial Rules 4.1 and 4.6 provide “general guidelines,” but “service of process that is reasonably calculated to inform, consistent with the letter of Trial Rule 4.15(F), is sufficient even if it fails to actually inform the party to which it is directed”) (citing Washington v. Allison, 593 N.E.2d 1273, 1275 (Ind. Ct. App. 1992)). Alonso’s supplemental filing shows that Defendant Onirem Investments, LLC has an active registration on the Indiana Secretary of State’s website as a domestic limited liability company, formed on July 17, 2020, with a principal office address of 7510 Marshall St. Merrillville, IN 46410. [DE 16 at 6]. Defendant Joel Merino is identified as the registered agent with the same address. [Id.]. The Articles of Organization (which is not included with Alonso’s supplemental filing but is available on the Secretary of State’s website), identifies Joel Merino as the registered agent with the Marshall Street address, but also indicates that “electronic service of process may be accepted” at the following email address: Joelonirem@gmail.com. 2 Alonso’s supplemental affidavit states that, “on October 17, 2022, Holly Merino stated, under oath, as manager of the corporation, that the address for Onirem Investments, LLC had changed to 7510 Marshall St, Merrillville, IN, 46410.” [DE 16 ¶ 6 (bold in original)]. In fact, the principal office address for Onirem Investments, LLC has always been the Marshall Street address. The cited document (id. at 7-8) instead shows a “Change Of Governing Persons.” Documents found on the Secretary of State’s website indicate that Joel Merino was the only manager originally identified in the Articles of Organization, but that Holly Merino and Mark Merino were added as managers on October 13 and 17, 2022 respectively. The address listed for both Holly Merino and Mark Merino is 3556 W. 73rd Ave., Apt. 2, Merrillville, IN, 46410. Additionally, Alonso’s supplemental affidavit states that, “[l]ater, on December 20, 2022, Defendant Joel Merino stated, under oath, a change of address for the corporate Defendant Onirem Investments, LLC to 3556 W. 73rd Ave, apt 2, Merrillville, IN, 46410.” [DE 16 ¶ 7 (bold in original)]. In fact, however, the cited document pertains to a different domestic limited liability company––Onirem Remodeling LLC. [Id. at 9]. Documents found on the Secretary of State’s website indicate that Onirem Remodeling LLC was formed on December 20, 2022, and that Joel Merino is its sole manager and registered agent with an address of 3556 W. 73rd Ave, Merrillville, IN, 46410. The principal office address of Onirem Remodeling LLC was listed in the Articles of Organization as 35556 W. 73rd Ave, Merrillville, IN, 46410 (extra 5 in bold). The extra 5 in the W. 73rd Ave. address appears to have been a typographical error, which the “Change Of Principal Office Address” form attached to Alonso’s supplemental affidavit corrected. Alonso’s counsel states in his affidavit that he conducted a skip trace search for Defendant Joel Merino. The search results indicate that Joel Merino’s “current address” (from December 2019 through May 2023) is 3556 W. 73rd Ave, Apt. 2, Merrillville, IN, 46410, and that “Holly 3 Dziki,” a/k/a “Holly Merino,” is a “household member” at that address (possibly Joel Merino’s wife). [DE 16 at 11, 17]. The search also indicates that Mark Merino is possibly Joel Merino’s brother, and that he may have an address of 7707 Marshall St. Merrillville, IN 46410-4546 [id. at 19], although the corporate filings for Onirem Investments, LLC list his address as 3556 W. 73rd Ave., Apt. 2, Merrillville, IN, 46410 [id. at 7-8]. Service on Joel Merino would establish service on that individual defendant as well as on the corporate defendant, Onirem Investments, LLC. See Ind. R. Tr. Pro. 4.6(A). The most recent address for Joel Merino found on both the Secretary of State’s website and counsel’s skip trace search results is 3556 W. 73rd Ave, Apt. 2, Merrillville, IN, 46410. Multiple attempts at service by a special process server at that address, however, were unsuccessful. The attempts were made between July 22, 2023 and August 3, 2023. Alonso’s counsel states that he has “no doubts that Defendants are avoiding service of process,” pointing out that the special process server’s return of service notes that, when service was attempted at the 73rd Ave. address, a TV or radio playing the Chicago news could be heard. [DE 16 ¶ 10; DE 16 at 28]. The Court finds that Alonso has submitted sufficient evidence of good faith attempts to effectuate service on Defendants, employing a special process server who made multiple attempts to serve at both addresses associated with Defendants, and skip tracing to find alternate addresses. Alonso also has submitted evidence that Defendants may be trying to evade service by not answering the door when the special process service attempted service. Alonso proposes mailing the summonses and complaint by regular and by certified mail to both addresses associated with Defendants. Regardless of whether either address is Defendant Joel Merino’s current or most recent address, they are the addresses given in the most recent filings on the Secretary of State’s website for his two corporate entities, and at the very least may be where one or both of the two 4 other managers of the corporate Defendant live, which individuals are also likely close personal relatives of the individual Defendant. Thus, the Court finds that Alonso’s proposed method is “reasonably calculated to give the defendant[s] actual knowledge of the proceedings and an opportunity to be heard.” Ind. R. Tr. Pro. 4.14, 4.15(F). In addition, however, the Court will also require Alonso to serve both Defendants by email. Accordingly, the Court ORDERS that: 1. Plaintiff’s Motion for Alternative Service [DE 12] is GRANTED. 2. Plaintiff is DIRECTED to serve Defendants by sending copies of the summonses, complaint, and this order, by regular and by certified mail to the following addresses: (a) 3556 W. 73rd Ave., Apt. 2, Merrillville, IN, 46410, and (b) 7510 Marshall St., Merrillville, IN 46410. 3. As an additional method of alternative service, the Court orders that Plaintiff serve Defendants by sending copies of the summonses, complaint, and this order to the email address listed on the Secretary of State’s website, Joelonirem@gmail.com, as well as the three email addresses shown in the skip trace search results [DE 16 at 11], j2onirem@hotmail.com; jmerino@hotmail.com; and oniremoptical@gmail.com. 4. To allow sufficient time to accomplish service as instructed in this order, the Court sua sponte EXTENDS the deadline for Plaintiff to effect service from December 26, 2023 to January 15, 2024. 5. Plaintiff is instructed to FILE a return of service showing that service has been effected in compliance with this order. So ORDERED this 13th day of December, 2023. s/ Joshua P. Kolar MAGISTRATE JUDGE JOSHUA P. KOLAR UNITED STATES DISTRICT COURT 5
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