Etherly v. Rehabitat Systems of Michigan et al

Filing 27

ORDER Adopting 25 Report and Recommendation for 10 Motion for Default Judgment and directing service by the United States Marshal. Signed by District Judge Paul D. Borman. (DWor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TAMMY ETHERLY,
Plaintiff,

Case No. 13-11360
Paul D. Borman
United States District Judge

v.

Laurie J. Michelson
United States Magistrate Judge

REHABITAT SYSTEMS OF
MICHIGAN, DAMON HUFFMAN,
and CAROL BENCE,
Defendants.
_______________________________/

ORDER (1) ADOPTING THE MAGISTRATE JUDGE’S JULY 8, 2013 REPORT AND
RECOMMENDATION TO DENY PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
AND (2) DIRECTING SERVICE BY THE UNITED STATES MARSHAL
This matter is before the Court on Plaintiff’s objection (ECF No. 26) to Magistrate Judge
Laurie J. Michelson’s July 8, 2013 Report and Recommendation to Deny Plaintiff’s Motion for
Default Judgment (ECF No. 25). A district court judge reviews de novo the portions of the report
and recommendation to which objections have been filed. 28 U .S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). A district “court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. Having conducted a de novo review of the
parts of the Magistrate Judge’s Report and Recommendation to which objections have been filed
pursuant to 28 U.S.C. § 636(b)(1), the Court DENIES Plaintiff’s Objection, ADOPTS the Magistrate
Judge’s Report and Recommendation, and ORDERS the United States Marshal to effect proper
service on the Defendants.
In this employment discrimination case, pro se Plaintiff was granted in forma pauperis status
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and requested service of the summons and complaint by the United States Marshals. The Marshals
attempted service by certified mail on the corporate Defendant, Rehabitat Systems of Michigan
(“Rehabitat”) and the individual Defendants, Damon Huffman and Carol Bence. Text-only Docket
Entries on May 29, 2013 indicate that the Summons to Rehabitat was returned executed but the
Summonses to Defendants Huffman and Bence were returned unexecuted as they were unclaimed.
(May 29, 2013 Text-Only Docket Entries.) To date none of the Defendants has responded to the
Complaint.
Plaintiff filed a motion for default judgment (ECF No. 10) and subsequently received a
clerk’s entry of default as to Rehabitat (ECF No. 16), but was denied clerk’s defaults as to Huffman
and Bence (ECF Nos. 17, 18.) This Court referred Plaintiff’s motion for default judgment to
Magistrate Judge Michelson, who issued her Report and Recommendation to Deny the Motion for
Default Judgment on July 8, 2013. (ECF No. 25.) Plaintiff’s Objections to the Magistrate Judge’s
Report and Recommendation are now before the Court.
In her objections, Plaintiff relies on Fed. R. Civ. P. 5, which governs the filing of papers and
pleadings, not service of process, i.e. service of the summons and complaint. Service of process is
governed by Fed. R. Civ. P. 4. Federal Rule of Civil Procedure 4(h) provides that service upon a
corporation, partnership or association may be accomplished by (1) delivering a copy of the
summons and complaint to an officer, managing agent or general agent, or any other agent
authorized by appointment or law to receive service of process and by also mailing a copy of each
to the defendant or (2) by any manner prescribed for individuals under Rule 4(e)(1), which allows
for service pursuant to the law of the state in which the district court is located. See Fed. R. Civ. P.
4(h), (e). Michigan law allows service of process upon a corporation by serving a summons and a

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copy of the complaint on an officer or the resident agent personally or, alternatively, by serving a
summons and a copy of the complaint on a director, trustee or person in charge of the office as well
as sending a summons and a copy of the complaint by registered mail, addressed to the principal of
the office of the corporation. Mich. Ct. R. 2.105(D)(1), (2). See Vasher v. Kabacinski, No. 0612287, 2007 WL 295006, at *2 (E.D. Mich. Jan. 29, 2007). The Magistrate Judge correctly
concluded that Michigan law does not permit service on a corporation by mail alone, certified,
registered or otherwise. Mailing must be accompanied by personal service of the agent.
Likewise, the Magistrate Judge properly concluded that individual Defendants Huffman and
Bence were not properly served because neither of them acknowledged receipt of the certified
mailings of the Complaint. Service on an individual is “made when the defendant acknowledges
receipt of the mail.” Mich. Ct. R. 2.105(A)(2).
The Court agrees with the Magistrate Judge that Plaintiff, who was granted in forma pauperis
status and requested service by the United States Marshal, should not be penalized for the Marshal’s
failure to effect proper service of process. Accordingly, the Court DENIES Plaintiff’s objection to
the Report and Recommendation, ADOPTS the Report and Recommendation (ECF No. 25) and
ORDERS the United States Marshal to attempt personal service on the Defendants or to otherwise
effectuate proper service on the Defendants.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: July 31, 2013

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CERTIFICATE 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 31, 2013.

s/Deborah Tofil
Case Manager

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