Jagos v. Xcelerated Investments, Inc.

Filing 24

ORDER denying 21 Motion for Default Judgment; granting 23 Motion to Extend summons. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HENRY M. JAGOS,
Plaintiff,
Case No. 12-CV-11955
v.
HON. GEORGE CARAM STEEH
XCELERATED INVESTMENTS, INC.,
Defendant.
________________________________/
ORDER GRANTING PLAINTIFF’S MOTION TO REQUEST EXTENSION OF
SUMMONS (#23) AND DENYING MOTION FOR DEFAULT JUDGMENT (#21)
On May 1, 2012, plaintiff filed this action alleging violations of the Fair Credit
Reporting Act. On June 11, 2012, plaintiff filed a certificate of service showing the
summons and complaint were sent to defendant at 2940 Hebron Park Drive, Suite 307,
Hebron, Kentucky, 41048 by certified mail, return receipt requested. Rebecca Bowman
signed the receipt form. Rebecca Bowman is not listed as an officer on the Kentucky
Secretary of State’s profile for defendant. The Kentucky Secretary of State’s profile for
defendant shows that defendant has designated Business Filings Incorporated as its
registered agent, at 306 West Main Street, Suite 512, Frankfort, Kentucky, 40601.
As noted in this court’s orders, Federal Rule of Civil Procedure 4(h) provides the
manner for serving a corporation. A corporation may be served by “following state law for
serving a summons in an action brought in courts of general jurisdiction in the state where
the district court is located or where service is made” or “by delivering a copy of the
summons and of the complaint to an officer, a managing or general agent, or any
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other agent authorized by appointment or by law to receive service of process and – if the
agent is one authorized by statute and the statute so requires – by also mailing a copy of
each to the defendant.”
Defendant did not answer the complaint and plaintiff filed a motion for default
judgment. However, because it did not appear that defendant was properly served, the
court denied plaintiff’s motion for default judgment without prejudice and cancelled the
hearing. The order instructed that plaintiff could “file a motion for default judgment after
demonstrating proper service on defendant.”
On August 23, 2012, plaintiff filed a “response” to that order, asking the court to
reconsider its order denying plaintiff’s motion for default judgment.

Plaintiff argued

defendant was aware of this case as evidenced by some email correspondence discussing
settlement negotiations.

However, plaintiff failed to demonstrate proper service on

defendant as instructed by the order. The court therefore construed plaintiff’s response as
a motion for reconsideration and denied the motion for reconsideration.
On October 24, 2012, plaintiff filed a motion for entry of default judgment. Plaintiff
claims to have served defendant by certified mail to defendant’s registered agent. Because
plaintiff failed to provide any legal authority showing that certified mail is an acceptable
method of service of the summons and complaint and because plaintiff failed to provide an
explanation as to why he is entitled to judgment on his claim for damages under the Fair
Credit Reporting Act, the court ordered plaintiff to file a supplemental brief by November
14, 2012.
Plaintiff did not file a supplemental brief. Instead, plaintiff filed a motion to request
an extension of the summons for 60 days to allow plaintiff to properly serve defendant.
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Federal Rule of Civil Procedure 4(m) provides that “if the plaintiff shows good cause for the
failure” to serve a summons within 120 days after filing the complaint, “the court shall
extend the time for service for an appropriate period.” Plaintiff states he now understands
his mistake in attempting to serve the summons by mail. Given the circumstances, the
court finds good cause exists to extend the period under Rule 4(m) for 60 days from the
date of this order.
IT IS HEREBY ORDERED that plaintiff’s motion to extend time to serve summonses
is GRANTED.
Dated: March 6, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served on March 6, 2013, by U.S.
mail, upon plaintiff at 6776 N. Burkhart Road, Howell, MI
48855, upon defendant at 2940 Hebron Park Drive,
Suite 307, Hebron, Kentucky, 41048, and upon defendant’s
registered agent at 306 West Main Street, Suite 512,
Frankfort, Kentucky, 40601.
s/Barbara Radke
Deputy Clerk

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