Cuyler v. Flagstar Bank

Filing 10

ORDER DISMISSING CASE Without Prejudice Signed by District Judge Sean F. Cox. (JHer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Anthony Cuyler,

Civil Action No.10-10422
Plaintiff,

District Judge Sean F. Cox

vs.
Flagstar Bank,
Defendant.
________________________________/
ORDER OF DISMISSAL WITHOUT PREJUDICE
Acting pro se, Plaintiff filed this action on February 1, 2010. By September 15, 2010, no
summons had been returned executed as to Defendant, and this Court ordered Plaintiff to show
cause. On September 21, 2010, Plaintiff responded to the order to show cause.
Plaintiff’s response included a returned summons that was not timely and that did not
adequately show that Plaintiff properly served Defendant. (Doc. No. 8). Plaintiff’s response
reveals that Plaintiff did not attempt to serve Defendant until August 23, 2010, which is almost 3
months after the expiration of the summons issued by the Clerk’s office.
Moreover, FED. R. CIV. P. 4(h)(1) provides that a corporation, partnership, or association
may be served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” FED. R.
CIV. P. 4(h)(1). Rule 4(e)(1) further provides that a corporation can be served in compliance
with the service of process rules in the state in which the case is filed, or where service is made.
FED. R. CIV. P. 4(e)(1).
Service of process on a corporation in the state of Michigan can be achieved by:
(1) serving a summons and a copy of the complaint on an officer or
the resident agent;
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(2) serving a summons and a copy of the complaint on a director,
trustee, or person in charge of an office or business establishment of
the corporation and sending a summons and a copy of the complaint
by registered mail, addressed to the principal office of the
corporation;
(3) serving a summons and a copy of the complaint on the last
presiding officer, president, cashier, secretary, or treasurer of a
corporation that has ceased to do business by failing to keep up its
organization by the appointment of officers or otherwise, or whose
term of existence has expired;
(4) sending a summons and a copy of the complaint by registered
mail to the corporation or an appropriate corporation officer and to
the Michigan Corporation and Securities Bureau if:
(a) the corporation has failed to appoint and maintain a
resident agent or to file a certificate of that appointment as
required by law;
(b) the corporation has failed to keep up its organization by
the appointment of officers or otherwise; or
(c) the corporation's term of existence has expired.
M.C.R. 2.105(D).
In this case, Plaintiff attempted to serve Defendant solely by registered mail. (Doc. No.
8). Plaintiff, however, has not established that Defendant meets any of the requirements of
M.C.R. 2.105(D)(4), which would permit Plaintiff to serve Defendant through registered mail.
Thus, Plaintiff has not properly served Defendant.
Accordingly, Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE for failure
to effect timely and proper service of process.
If Plaintiff seeks to re-file his complaint against Defendant at any time hereafter, he must
serve Defendant through one of the following methods:
•

Personal service an officer or resident agent of Defendant, pursuant to M.C.R.
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2.105(D)(1); or
•

Personal service of a director, trustee, or person in charge of an office or business
establishment of the corporation and sending a summons and a copy of the
complaint by registered mail, addressed to the principal office of the corporation,
pursuant to M.C.R. 2.105(D)(2); or

•

Request that the Court order service of the summons and complaint upon
Defendant by a United States Marshal.

IT IS SO ORDERED.

Dated: April 11, 2011

S/ Sean F. Cox
Sean F. Cox
U. S. District Court Judge

I hereby certify that on April 11, 2011, the foregoing document was served upon counsel of
record by electronic means and upon Anthony Cuyler by First Class Mail at the address below:
Anthony Cuyler
4465 Bishop
Detroit, MI 48224
Dated: April 11, 2011

S/ Jennifer Hernandez
Case Manager

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