The case of the day is Capital Airline Engine Leasing, LLC v. European Aviation Air Charter, Ltd. (C.D. Ill. 2011). Capital sued European Aviation Air Charter, an English firm, and sought to serve it via the Hague Service Convention. But the summons directed to EAAC was returned unexecuted. Two lawyers entered appearances for EAAC and two other defendants, which had both been properly served. The defendants moved for an extension of time to answer the complaint, which was granted. The lawyers then withdrew as counsel for EAAC but not the other two defendants. Capital moved for entry of default against EAAC on the grounds that it had not answered the complaint, and it came out that EAAC was “involved in bankruptcy proceedings in England.” The parties later reported to the court that EAAC had been liquidated, and that no assets were available for distribution to unsecured creditors. EAAC’s lawyers opposed the request for entry of default on the grounds that EAAC had not been properly served, and they moved to dismiss for insufficient service of process.
The court refused to enter EAAC’s default, but it also refused to dismiss the case on EAAC’s motion. It held that EAAC’s appearance itself did not waive the defense of insufficient service of process, nor does a preliminary motion such as a motion for an extension of time to answer a complaint. Thus EAAC could properly raise the defense of insufficient service of process. But because Capital had shown due diligence in attempting to serve process on EAAC and granted an extension of time to effect service.