(DOWNLOAD) "Johnson v. Burken" by United States Court of Appeals for the Seventh Circuit # eBook PDF Kindle ePub Free
eBook details
- Title: Johnson v. Burken
- Author : United States Court of Appeals for the Seventh Circuit
- Release Date : January 22, 1991
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 58 KB
Description
POSNER, Circuit Judge In May 1988, Donald Johnson brought suit against Patrick Burken in an Illinois state court for damages arising out of an automobile accident that had occurred in August 1986. At the time of the accident Burken was a sailor stationed at the Great Lakes naval base in Illinois, although he was a domiciliary -- and hence, for purposes of federal diversity jurisdiction, a citizen, Galva Foundry Co. v. Heiden, 924 F.2d 729 (7th Cir. 1991) -- of Iowa. But by the time the suit was filed, Burken had left Illinois for duty at sea. Illinois' nonresident motorist statute allows service of process on a nonresident by serving a copy of the complaint or other process on the secretary of state of Illinois and, within ten days thereafter, sending a copy ""by registered mail"" to the defendant at his last known address. Ill. Rev. Stat. ch. 95 1/2, para. 10-301(b). Johnson's lawyer duly served the secretary of state with his copy, but mailed Burken's copy by certified mail (return receipt requested) rather than by registered mail. Burken did not receive his copy, having failed to leave a forwarding address. Several months later, Johnson's lawyer wrote Burken's insurer suggesting settlement. This was the first that either Burken or the insurance company knew of the suit. The insurance company retained a lawyer to defend the case. He made a special appearance to contest jurisdiction and moved that the case be dismissed on the ground that service had not been made in accordance with the statute and therefore the court had not obtained jurisdiction over Burken. The state judge denied the motion without giving reasons. Burken then removed the case to federal district court -- the parties being of diverse citizenship -- and renewed his motion to dismiss for lack of proper service. In September the district judge denied the motion on the ground that the state judge's ruling had not been clearly erroneous and therefore was binding in subsequent proceedings under the doctrine of the law of the case. Burken then moved for a stay of proceedings under the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C. App. §§ 501 et seq. (see § 521), and also moved for a certification to permit him to take an immediate appeal to this court under 28 U.S.C. § 1292(b). In January of last year the district judge granted both motions. Shortly before, in November 1989, Johnson had again attempted to serve Burken under the Illinois nonresident statute, this time sending him his copy in Norfolk, Virginia, where Burken was stationed. The validity of this service has not been determined; nor whether it was made within the statute of limitations. A motions panel of this court agreed to hear Burken's interlocutory appeal.
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