Macomb Interceptor Drain Drainage District v. Kilpatrick et al

Filing 108

OPINION AND ORDER granting in part and denying in part 101 Plaintiff's Motion for Alternate Service and Extension of Summons. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MACOMB INTERCEPTOR DRAIN DRAINAGE
DISTRICT,
Plaintiff,
v.

Case No. 11-13101

KWAME KILPATRICK, et al.,
Defendants.
/
OPINION AND ORDER GRANTING IN PART PLAINTIFF’S “MOTION FOR
ALTERNATE SERVICE AND EXTENSION OF SUMMONSES”
Pending before the court is Plaintiff’s motion for the extension of summonses and
alternate service. Plaintiff filed this action on July 17, 2011, and summonses were
issued for the 40 Defendants on July 19, 2011. To date, Plaintiff has been unable to
serve 10 Defendants, and now seeks an extension of the summonses as to the
unserved Defendants and authorization to alternatively serve five of these Defendants.
Plaintiff’s summonses will expire on November 17, 2011. For the reasons set forth
below, the court will grant in part and deny in part Plaintiff’s motion.
Federal Rule Civil Procedure 4 requires service within 120 days after a complaint
is filed. Under Rule 4(m),
If service of the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint, the court, upon motion or
on its own initiative after notice to the plaintiff, shall dismiss the action
without prejudice as to the defendant or direct that service be effected
within a specified time; provided that if the plaintiff shows good cause for
the failure, the court shall extend the time for service for an appropriate
period.

Fed. R. Civ. P. 4(m). It is the plaintiff’s burden to establish good cause. See Habib v.
General Motors Corp., 15 F.3d 72, 73 (6th Cir 1996). Further, service of a complaint
filed in a federal court is proper by any method permitted for serving a complaint by the
state in which the federal court is located. Fed. R. Civ. P. 4(e)(1). Under Michigan law,
“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.” Mich. Ct. R. 2.105(I)(1). Such alternative service may only be
ordered upon “a showing that service of process cannot reasonably be made as
provided” otherwise. Mich. Ct. R. 2.105(I)(1). Tacking a copy of the summons and
complaint to the door of the address of a defendant may be considered a “manner
reasonably calculated to give the defendant actual notice,” especially when
accompanied by a mailing. See Dehaan v. Tsarnas, No. 289967, 2010 WL 2384921, at
*4 (Mich. Ct. App. June 15, 2010) (per curiam); Bennett v. Davidson, No. 250694, 2005
WL 1123603, at *1 (Mich. Ct. App. May 12, 2005) (per curiam).
Plaintiff commenced its service efforts by mailing all Defendants waivers of
service in July 2011. Waivers for five Defendants1 were returned to Plaintiff, indicating
that the postal service was “unable to forward” the waivers to current addresses. (Pl.’s
Mot. at 2.) In October 2011, Plaintiff retained the services of a process server to identify
the current addresses of these five Defendants, and Plaintiff states that it has initiated
efforts to serve the Defendants at out-of-state addresses discovered by the process

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The five Defendants whose waivers were returned to Plaintiff as “unable to
forward” were: (1) Derrick Miller; (2) Great Lakes Diving & Salvage, Inc.; (3) Wendy
Gouin; (4) Thomas Gouin; and (5) Bharat Patel.
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server in late October. (Id. at 2.) Efforts to serve five other Defendants have also been
unsuccessful.2 The waivers for these Defendants were not returned to Plaintiff as
undeliverable, but each Defendant failed to file a waiver of service with the court. (Id. at
3-5.) Plaintiff’s process server made several unsuccessful attempts at serving each of
these Defendants over the course of three weeks in October 2011. Plaintiff now seeks
an extension of the summonses as to the 10 unserved Defendants, and authorization to
alternatively serve the five Defendants whose waivers were not returned to the Plaintiff
as undeliverable, but who have nevertheless not been served by Plaintiff’s process
server.
Plaintiff has not made the requisite showing that service of process cannot
reasonably be made as provided in the rules as to Defendants Ferguson, Ferguson’s
Enterprises, Dubay, and Dubay’s Landscaping. Plaintiff details three unsuccessful visits
by its process server to the residential addresses of Defendants Ferguson and Dubay in
an effort to serve Ferguson, Dubay, and their eponymous companies, Ferguson’s
Enterprises and Dubay’s Landscaping. (Id. at 4.) The process server’s affidavits,
however, are devoid of facts establishing that service of process cannot reasonably be
made as provided in the rules, and merely state that each time service was attempted,
there was “[n]o answer” at the addresses. (Pl.’s Mot. Exs. A, C.) Further, Plaintiff has
not explained why it has not attempted to serve Defendants at the registered addresses
of the companies, Ferguson’s Enterprises and Dubay’s Landscaping. Thus, the court

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These five Defendants are: (1) Bobby W. Ferguson; (2) Ferguson’s Enterprises,
Inc. (“Ferguson’s Enterprises”); (3) Dubay’s Landscaping Services, Inc. (“Dubay’s
Landscaping”); (4) Lawrence R. Dubay; and (5) Superior Engineering Associates, Inc.
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will deny Plaintiff’s motion to the extent that it seeks authorization to alternatively serve
Defendants Ferguson, Ferguson’s Enterprises, Dubay, and Dubay Landscaping.
Plaintiff, however, has proffered detailed evidence showing that service of
process cannot reasonably be made as provided in the rules as to Defendant Superior
Engineering. In July 2011, Plaintiff mailed Defendants Patel’s and Superior
Engineering’s waivers of service to the registered address of Superior Engineering.
(Pl.’s Mot. at 5.) Thereafter, Defendant Patel’s waiver was returned to Plaintiff’s counsel
with a note indicating that the envelope was “opened by mistake” and Patel no longer
worked at Superior Engineering. (Pl.’s Mot. Ex. E.) The envelope was signed by Satish
Mistry, allegedly an employee of Superior Engineering. (Id.) Following receipt of
Patel’s waiver, Plaintiff’s counsel contacted Superior Engineering to confirm that
Superior Engineering in fact received its waiver and requesting Patel’s last known
contact information. (Pl.’s Mot. at 5.) Despite confirming that it received a waiver of
process, Defendant Superior Engineering did not file a waiver with the court. (Id.) In
October 2011, Plaintiff’s process server unsuccessfully attempted to serve Defendant
Superior Engineering on four occasions: twice at Satish Mistry’s residential address and
twice at Superior Engineering’s registered address. (Pl.’s Mot. Ex. F.) The course of
Superior Engineering’s conduct described in Plaintiff’s motion demonstrates that service
of process cannot reasonably be made as provided in the rules due to Superior
Engineering’s apparent evasion. Therefore, the court will grant the motion and allow
alternate service by a combination of posting on the front door at Superior Engineering’s
registered address, publication in a local newspaper, and first class mail.

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The court also finds that Plaintiff has made a showing of good cause to extend
the summonses. After unsuccessfully securing waivers of service from the 10 unserved
Defendants, Plaintiff retained a process server to identify the current addresses of the
Defendants and execute service. The process server has now discovered the
addresses of the Defendants whose waivers were undeliverable, and continues to
attempt to serve the unserved Defendants. Plaintiff’s need for an extension of the
summonses is not a result of dilatory motive or inexcusable neglect, and, thus, the court
will grant Plaintiff’s request to extend the summonses for a period of 60 days.
Accordingly,
IT IS ORDERED that Plaintiff’s “Motion for Alternate Service and Extension of
Summonses” [Dkt. # 101] is GRANTED IN PART and DENIED IN PART. IT IS
GRANTED with respect to Plaintiff’s request to extend the summonses. The
summonses shall expire on January 16, 2012. IT IS FURTHER GRANTED with
respect to Plaintiff’s request to alternatively serve Defendant Superior Engineering
Associates, Inc. Alternate service is ALLOWED as specified above. IT IS DENIED with
respect to Plaintiff’s request to alternatively serve Defendants Bobby W. Ferguson,
Ferguson’s Enterprises, Inc., Dubay’s Landscaping Services, Inc., and Lawrence R.
Dubay.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: November 16, 2011

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, November 16, 2011, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\11-13101.KILPATRICK.GrantAlternateService.jrc.wpd

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