Macomb Interceptor Drain Drainage District v. Kilpatrick et al

Filing 141

OPINION AND ORDER granting 139 Plaintiff's Second 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 PLAINTIFF’S “SECOND MOTION FOR
ALTERNATE SERVICE AND EXTENSION OF SUMMONSES”
Before the court is Plaintiff’s second 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. On November 16, 2011, the court
granted in part Plaintiff’s first motion for alternate service, extending the summonses for
10 unserved Defendants 60 days and permitting Plaintiff to alternatively serve
Defendant Superior Engineering Associates, Inc. (See 11/16/2011 Order, Dkt. # 108.)
The court, however, denied Plaintiff’s request to alternatively serve Defendants Bobby
W. Ferguson and Ferguson’s Enterprises, Inc. (“Ferguson’s Enterprises”), finding
Plaintiff failed to establish that service could not reasonably be made as provided under
the rules and suggesting that Plaintiff attempt to serve these Defendants at the
registered business address of Ferguson’s Enterprises. (Id.) In its second motion,
Plaintiff again seeks leave to alternatively serve Defendants Ferguson and Ferguson’s
Enterprises and, for the first time, requests leave to alternatively serve Defendant

Derrick Miller. Plaintiff provides considerably more details related to its extensive efforts
to serve Defendants Ferguson, Ferguson’s Enterprises, and Miller, and, therefore, the
court will grant the 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).
Plaintiff’s efforts to serve Defendant Miller over the past five and half months
demonstrate that service of process cannot reasonably be effectuated in accordance
with the procedures set forth in the Michigan Court Rules. After failing to identify a
current residential address for Defendant Miller, in July 2011, Plaintiff mailed a waiver of
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summons and complaint to two business addresses associated with Miller’s company,
Citivest Capital Partners, LLC (“Citivest”). (Pl.’s Second Mot. for Alt. Serv. at ¶¶ 8-9,
Dkt. # 139.) The United States Postal Service returned the waivers, informing Plaintiff
that the “tenant is no longer at the address.” (Pl.’s Second Mot. for Alt. Serv. Exs. A, B,
Dkt. ## 139-1, 139-2.) Thereafter, Plaintiff discovered a newspaper article indicating
that Defendant Miller resided in McLean, Virginia and identifying Mr. Byron Pitts as an
attorney representing Miller in a criminal case in the Eastern District of Michigan. (Pl.’s
Second Mot. for Alt. Serv. at ¶ 10.) Plaintiff asked Mr. Pitts to accept service on
Defendant Miller’s behalf. Pitts declined but informed Plaintiff that he would discuss the
matter with Miller. (Pl.’s Second Mot. for Alt. Serv. at ¶¶ 12-13.) Evidently, Plaintiff
never again heard from Mr. Pitts.
In October 2011, Plaintiff retained the services of a process server who identified
Miller’s purported residential address as 1900 Dalmation Drive, in McLean, Virginia.
(Pl.’s Second Mot. for Alt. Serv. at ¶ 14.) Upon receiving the summons and pleadings
from the process server, the Fairfax County Sheriff’s Department in Virginia attempted
to serve Defendant Miller at this address. Service was unsuccessful, but the Sheriff’s
Department informed Plaintiff that it had located a new address for Miller, 1504 Audmar
Drive, in McLean, Virginia, and service would be attempted at that address.(Pl.’s
Second Mot. for Alt. Serv. at ¶¶ 15-16.) The current resident of the second Virginia
address, a woman identified as Lisa Miller, the “soon to be . . ex wife” of Defendant
Miller, informed the Sheriff’s Department that Miller no longer resided there. (Pl.’s
Second Mot. for Alt. Serv. Ex. F, Dkt. # 139-7.) Having failed to effectuate service on
Defendant Miller, Plaintiff now seeks permission to alternatively serve him.
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Succinctly stated, Plaintiff has retained the services of a process server,
attempted service at four different addresses in Michigan and Virginia purportedly
associated with Defendant Miller, and has requested that an attorney representing Miller
in a criminal case accept service on behalf of him, all to no avail. In effect, Plaintiff has
engaged in a wild goose chase since July 2011, and now it appears it is unable to
identify any further leads related to Defendant Miller’s current address. Plaintiff has
convincingly established that service cannot be reasonably made, and, thus, the court
will grant its request to alternatively serve Defendant Miller. Alternate service shall be
executed in the following manner: (1) posting the summons and an order for alternate
service at the United States District Court for the Eastern District of Michigan in Detroit,
Michigan, and the Wayne County Circuit Court in Detroit, Michigan; (2) mailing the
summons, complaint, and order for alternate service to Mr. Byron Pitts, Defendant
Miller’s criminal attorney, at his address registered with the State Bar of Michigan; (3)
mailing the summons, complaint, and order for alternate service to Ms. Lisa Miller, an
attorney and Defendant Miller’s current wife, at her address registered with the State
Bar of Michigan and at the Audmar Drive address in McLean, Virginia; and (4)
publication in a local newspaper for at least two weeks.
Plaintiff has also presented sufficient evidence to establish that service of
Defendants Ferguson and Ferguson’s Enterprises cannot reasonably be made pursuant
to the the Michigan Court Rules. Following the court’s initial denial of Plaintiff’s request
to alternatively serve these Defendants in November 2011, Plaintiff attempted to serve
Defendants four more times, twice at the residence of Defendant Ferguson
and—heeding the advice of the court—twice at the last known office address of
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Defendant Ferguson’s Enterprises. (Pl.’s Second Mot. for Alt. Serv. at ¶ 24.) During
the final two service attempts at Defendant Ferguson’s residence, Plaintiff’s process
server observed lights on in the home, but no one answered the door either time. (Pl.’s
Second Mot. for Alt. Serv. Ex. H, Dkt. # 139-9.) Plaintiff’s efforts to serve Defendants at
the address of Ferguson’s Enterprises were rebuffed by a secretary who refused to
identify herself and informed the process server both times that Defendant Ferguson
was not present. (Id.) Since July 2011, Plaintiff has made 11 attempts at serving
Defendants and has contacted Ferguson’s criminal defense attorney, Gerald Evelyn,
requesting that he accept service on behalf of Defendants. ((Pl.’s Second Mot. for Alt.
Serv. at ¶¶25-26, 29.) Despite these attempts, Plaintiff’s efforts have proven futile. The
court now concludes that the evidence proffered by Plaintiff supports a conclusion that
Defendants Ferguson and Ferguson’s Enterprises are likely evading service, and
service cannot be effectuated in accordance with the Michigan Court Rules. Plaintiff
may therefore alternatively serve Defendants in the following manner: (1) tacking the
summonses, complaint, and order of alternate service on the front doors of Defendant
Ferguson’s residential address and the business address of Defendant Ferguson’s
Enterprises; (2) mailing the summonses, complaint, and order of alternate service to the
residential address of Defendant Ferguson and the business address of Defendant
Ferguson’s Enterprises; and (3) publication in a local newspaper for at least two weeks.
Finally, Plaintiff has made a showing of good cause to extend the summonses.
The evidence before the court makes it abundantly clear that Plaintiff has made
extensive and continuous attempts to serve Defendants Miller, Ferguson, and
Ferguson’s Enterprises. Indeed, Plaintiff has exhausted virtually every possible
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resource and method of serving these Defendants, and its ultimate failure cannot fairly
be attributed to any dilatory motive or neglect on the part of Plaintiff. Thus, the court will
grant Plaintiff’s request to extend the summonses for Defendants Miller, Ferguson, and
Ferguson’s Enterprises. Accordingly,
IT IS ORDERED that Plaintiff’s “Second Motion for Alternate Service and for
Extension of Summonses” [Dkt. # 139] is GRANTED. The summonses shall be
extended 30 days and expire on February 15, 2012. Further, alternate service is
allowed as specified above.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: January 10, 2012
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 10, 2012, 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.Grant.Second.Mot.Alternate.Service.jrc.wpd

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