United States of America v. Szaflarski et al
Filing
16
ORDER granting 15 Motion for Alternate Service. Signed by District Judge David M. Lawson. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Civil Case No: 11-10275
Honorable David M. Lawson
v.
DAN SZAFLARSKI, ELAINE SZAFLARSKI,
SZAFLARSKI PARTNERS, HURON
COUNTY TREASURER, OAKLAND
COUNTY TREASURER, WAYNE COUNTY
TREASURER, and POINT OF SAND POINT
ASSOCIATION,
Defendants.
______________________________________/
ORDER GRANTING PLAINTIFF’S SECOND MOTION FOR
ALTERNATE SERVICE ON DEFENDANT SZAFLARSKI PARTNERS
On July 12, 2011, the plaintiff filed a second motion seeking leave to serve defendant and
Szaflarski Partners by alternative means. The Court denied in part the plaintiff’s first motion for
alternate service as to this defendant, noting that the plaintiff failed to present any facts or evidence
tending to show that service on the partnership could not be accomplished by a method permitting
under the federal or state rules. The plaintiff now explains that the only general partners are
defendants Dan and Elaine Szaflarski, for whom the Court allowed alternate service, and the
partnership’s tax records confirm that its address is the 8390 Woodspur Drive location in Commerce
Township, Michigan at which the plaintiff has been attempting service for several months. The
plaintiff requests leave to serve this defendant by the alternative means of posting, mailing by
certified mail with return receipt requested, and mailing by first class mail.
Federal Rule of Civil Procedure 4 sets forth the rules for service of process on partnerships
in subsection (h). Rule 4(h) provides that service may be accomplished “pursuant to the law of the
state in which the district court is located.” Fed. R. Civ. P. 4(h)(1)(A). See Bridgeport Music, Inc.
v. Rhyme Syndicate Music, 376 F.3d 615, 623-25 (6th Cir. 2004). In addition, partnership also may
be served by delivering a copy of the service documents to an officer or agent and — if service is
effected on an agent — also mailing a copy of the documents to the corporate defendant. Fed. R.
Civ. P. 4(h)(1)(B). Under Michigan law, service on a partnership may be effected as follows:
(1) serving a summons and a copy of the complaint on any general partner; or
(2) serving a summons and a copy of the complaint on the person in charge of a
partnership office or business establishment and sending a summons and a copy of
the complaint by registered mail, addressed to a general partner at his or her usual
residence or last known address.
Mich. Ct. R. 2.105(C). In addition, the Michigan rule includes a provision that allows additional
methods of service upon “a showing that service of process cannot reasonably be made as provided
by this rule.” Mich. Ct. R. 2.105(I)(1). In that event, “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.” Ibid.
To obtain permission for alternate service, the plaintiff must establish (1) that service cannot
be made by the prescribed means, and (2) that the proposed alternate method is likely to give actual
notice. The first point must be established by “sufficient facts.” Mich. Ct. R. 2.105(I)(2); see
Krueger v. Williams, 410 Mich. 144, 163, 300 N.W.2d 910, 916 (1981). The second point embodies
the constitutional requirements of due process. Milliken v. Meyer, 311 U.S. 457, 463 (1940)
(holding that the constitutional adequacy of an alternate method of service “is dependent on whether
or not the form of substituted service provided for such cases and employed is reasonably calculated
to give [the defendant] actual notice of the proceedings and an opportunity to be heard”).
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In its second motion, the plaintiff explains that the only general partners, agents, or officers
for Szaflarski Partners are defendants Dan and Elaine Szaflarski. They have presented the affidavit
of an attorney in the Department of Justice’s Tax Division, who reviewed the tax returns for the
partnership, to confirm the ownership structure and the partnership’s listed address for returns, both
of which point back to Dan and Elaine Szaflarsaki and their residence on Woodspur Drive in
Commerce Township. As the Court noted in its order granting in part the plaintiff’s first motion for
alternate service, the plaintiff has provided sufficient evidence that service on defendants Dan and
Elaine Szaflarski cannot reasonably be made by the methods set out in the federal and state rules.
Order [dkt. #14] at 3-4. The Court’s order detailed the multiple attempts the process server made
to reach these defendants at the Woodspur Drive location and another location by knocking on the
door, leaving posted messages, and conducting stakeouts, as well as the process server’s attempt to
contact Dan Szaflarski by phone to set up a meeting. Ibid. The Court concluded that service on
these defendants by alternate means is warranted. Id. at 4. This conclusion requires the Court to
find now that service on the only general partners or officers, as the tax records reflect, cannot
reasonably be effected in a manner permitted by Federal Rule of Procedure 4(h) or Michigan Court
Rule 2.105(C). Therefore, the Court will grant the second motion for alternate service and allow
the plaintiff to serve defendant Szaflarski Partners by registered mail, certified mail, and posting at
the defendant’s last known address.
Accordingly, it is ORDERED that the plaintiff’s second motion for alternate service on
defendant Szaflarski Partners [dkt. #15] is GRANTED.
It is further ORDERED that the plaintiff may serve defendant Szaflarski Partners by:
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(A)
posting a copy of the service documents, along with a copy of this motion and order
for substituted service of process, at the defendant’s listed address at 8390 Woodspur
Drive, Commerce Township, Michigan 48382;
(B)
mailing a copy of the same documents by certified mail (return receipt requested) to
the defendant’s address noted above; and
(C)
mailing a copy of the same documents by first class mail to the defendant’s address
noted above.
The plaintiff shall file a certificate confirming service as provided herein.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 14, 2011
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 14, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL
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