Thurmond v. Southfield, City of et al

Filing 145

ORDER GRANTING DEFENDANTS' 143 Motion for Alternate Service - Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAWAN PIERCE THURMOND,
Plaintiff,

Case No. 15-13167
District Judge Laurie J. Michelson
Magistrate Judge R. Steven Whalen

v.
CITY OF SOUTHFIELD, et al.,
Defendants.
_____________________________/

ORDER DIRECTING ALTERNATE SERVICE
For the reasons discussed below, the Defendants’ Motion for Alternate Service on
Witness Lucius Hamilton [Doc. #143] is GRANTED.
I.

FACTS

The events underlying the Plaintiff’s complaint began with his encounter with
Lucius Hamilton, a security guard at the Northland Mall. Southfield police officers took a
statement from Mr. Hamilton, who told them that the Plaintiff made verbal threats
involving a firearm. Southfield Police Sgt. Porter, a Defendant, later pulled the Plaintiff
over based on Mr. Hamilton’s statement. The Defendants wish to depose Mr. Hamilton.
Attached to Defendants’ motion as Exhibit 3 is the affidavit of James P. Kelly, the
Director of Michigan Investigations for Subrosa Investigations. Mr. Kelly states that his
company was hired to locate and serve a deposition subpoena on Mr. Hamilton. On
September 30, 2016, he obtained an updated address for Mr. Hamilton, and that on
October 4, 2016, he unsuccessfully attempted service at that address. There was no

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answer at the door, so Mr. Kelly left a business card and note on the front door. Kelly
Affidavit, ¶¶ 4-5. On October 5, 2016, he made a second attempt at service, but again
there was no answer at the door. On October 6, 2016, Mr. Hamilton telephoned Mr. Kelly
from his cell phone, stating that he had received the business card and the note that Mr.
Kelly left at his residence. Mr. Kelly identified himself as a process server, and told Mr.
Hamilton that he was trying to deliver a subpoena for him to testify at a deposition. Mr.
Hamilton stated that he did not want to cooperate and did not want to attend a deposition.
Id. ¶¶ 6-7. Between October 12 and October 14, 2016, Mr. Kelly attempted service five
more times at Mr. Hamilton’s residence. There was no answer at the door on any of these
occasions, and Mr. Hamilton did not answer his cell phone. Id. ¶¶ 8-10.
Attached to Defendants’ motion as Exhibit 4 is the affidavit of Kali M.L.
Henderson, Defendants’ attorney. She states that she obtained Lucius Hamilton’s
telephone number from Mr. Kelly. Henderson Affidavit, ¶ 2. On October 6, 2016, she
called Mr. Hamilton, who “acknowledged that he was the individual that worked security
for Northland Mall and interacted with Dawan Thurmond. Id. ¶¶ 3-4. Mr. Hamilton
stated that he would not cooperate or attend a deposition, and when advised that he could
be held in contempt of court if he ignored a subpoena, he replied that he did not care. Id.
¶¶ 5-6.

II.

DISCUSSION

Service of a deposition subpoena to a non-party is governed by Fed.R.Civ.P. 45.
While personal service of a subpoena is the default rule, the Court may order alternative
service of a Rule 45 subpoena there has been a diligent effort at personal service, and
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where the alternative means of service are “reasonably calculated to achieve actual
delivery.” OceanFirst Bank v. Hartford Fire Ins. Co., 794 F.Supp.2d 752, 753 (E.D.
Mich. 2011).
Here, the Defendants made diligent effort to serve Mr. Hamilton. They attempted
personal service at his residence seven times. Because the process server left his business
card and a note at the residence, and because Mr. Hamilton called the process server two
days later, it is clear that the process server had the correct address. Mr. Hamilton told
both the process server and the Defendants’ attorney that he has no interest in cooperating
or attending a deposition.
Since Mr. Hamilton’s address has been verified, service by first-class mail and
posting on the door of the residence is reasonably calculated to ensure delivery. “Mailing
by first-class mail to the actual address of the intended recipient generally will suffice,
especially when the mailing is accompanied by posting at the known address of the
prospective witness.” OceanFirst Bank, 794 F.Supp.2d at 754.
III.

CONCLUSION

Therefore, Defendants’ Motion for Alternate Service on Witness Lucius Hamilton
[Doc. #143] is GRANTED.
Defendants will serve the deposition subpoena, along with a copy of this Order, on
Mr. Hamilton by first-class mail, addressed to him at 8397 Smart Street, Detroit,
Michigan 48210. Defendants will also post the subpoena and a copy of this Order on the
door of that address. The Defendants will file with this Court a certification that this
method of alternative service was completed.
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Mr. Hamilton’s failure to appear at his deposition may result in sanctions,
including sanctions for contempt of court.
IT IS SO ORDERED.

s/R. Steven Whalen
HON. R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
DATED: November 19, 2016

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record on
November 19, 2016, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen

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