McCluskey et al v. Belford High School et al

Filing 11

ORDER denying 7 Motion for Alternate Service. Signed by District Judge Lawrence P Zatkoff. (MVer)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION CARRIE McCLUSKEY, on behalf of herself and a class consisting of all of those similarly situated, EVELYN REISDORFF, and JAIME YANEZ, Plaintiffs, v. BELFORD HIGH SCHOOL, BELFORD UNIVERSITY, EDUCATION SERVICES PROVIDER, INC., INTERNATIONAL ACCREDITATION AGENCY FOR ONLINE UNIVERSITIES, UNIVERSAL COUNCIL FOR ONLINE EDUCATION ACCREDITATION, ZUNCH WORLDWIDE, INC., ZUNCH CHINA, INC., MELVILLE P. CROWE, DAN ROBERTSON, SYDNEY GOLDSTEIN, KEN CALVERT, WILLIAM J. McTIERNEN, and JOHN DOES 1-35, Defendants. __________________________________________________/ ORDER DENYING PLAINTIFFS' MOTION FOR ALTERNATE SERVICE I. INTRODUCTION This matter comes before the Court on Plaintiffs' motion for alternate service [dkt 7]. Defendants have not responded. The Court finds that the facts and legal arguments are adequately presented in Plaintiffs' papers such that the decision process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1 (e)(2), it is hereby ORDERED that the motion be resolved on the brief submitted. For the following reasons, Plaintiffs' motion is DENIED. II. BACKGROUND Plaintiffs allege that Defendants operate a sophisticated internet ripoff scheme through various websites, which falsely represent the existence of an accredited and legitimate high school, Case No. 2:09-14345 Hon. Lawrence J. Zatkoff

whose diplomas will be widely accepted by employers, professional associations, other schools, colleges and universities. Plaintiffs are adults who obtained illegitimate high school diplomas through Defendants' websites. Plaintiffs filed suit on November 5, 2009, and despite diligent attempts, Plaintiffs have been unable to serve any of the Defendants personally or by registered mail. According to Plaintiffs, Defendants have listed addresses in Humble, Texas, and West Hollywood, California, but neither location has a physical office located there or an agent to accept service. Plaintiff also suspects that the individually named Defendants represent fictitious names. As a result, Plaintiffs wish to serve Defendants by (1) posting at the Wayne County, Macomb County, and Oakland County courthouses; (2) posting on the internet at "www.belfordlawsuit.com," a website created by Plaintiffs to provide information about the suit; and (3) e-mailing those Defendants for whom Plaintiffs have located an e-mail address. III. DISCUSSION Under the Federal Rules of Civil Procedure, individuals and corporations may be served "following state law for serving a summons . . . in the state where the district court is located." Fed. R. Civ. P. 4(e)(1), (h)(1)(A). Under Michigan law, "[o]n a showing that service of process cannot reasonably be made as provided in this rule, the court may by order permit service of process to be made in any other manner reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard." M.C.R. 2.105(I). The Court finds that Plaintiffs' requested alternate forms of service are not reasonably calculated to give Defendants actual notice of the proceedings and an opportunity to be heard. There is no evidence that Defendants have any physical presence in Michigan, such that posting at the Wayne County, Macomb County, and Oakland County courthouses would give actual notice to

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Defendants. Similarly, posting on the internet is unlikely to provide actual notice to Defendants of the proceedings because Defendants may not be aware of the existence of the website created by Plaintiffs. Lastly, Plaintiffs have failed to show that the e-mail addresses they have obtained are likely to provide actual notice to Defendants. IV. CONCLUSION For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiffs' motion for alternate service is DENIED. IT IS SO ORDERED. S/Lawrence P. Zatkoff LAWRENCE P. ZATKOFF UNITED STATES DISTRICT JUDGE Dated: January 13, 2010 CERTIFICATE OF SERVICE The undersigned certifies that a copy of this Order was served upon the attorneys of record by electronic or U.S. mail on January 13, 2010. S/Marie E. Verlinde Case Manager [phone]

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