Stallworth v. City of Pleasant Ridge et al

Filing 30

ORDER Granting Defendants' 28 Motion for Alternative Service. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LARRY STALLWORTH
Plaintiff,

Case No. 16-cv-10696

v.
Hon. Matthew F. Leitman
CITY OF PLEASANT RIDGE et al.,
Defendants.
_________________________________/
ORDER GRANTING DEFENDANTS’ MOTION
FOR ALTERNATIVE SERVICE (ECF #28)
On March 1, 2014, an officer with the Pleasant Ridge Police Department
(Officer Champine) pulled over a vehicle on Woodward Avenue. (See First Am.
Compl. at ¶ 10, ECF #14 at Pg. ID 69.) Plaintiff Larry Stallworth (“Stallworth”)
was driving the car in question.

A second officer with the Ferndale Police

Department (Officer Farris) later arrived on the scene. (See id. at ¶13, ECF #14 at
Pg. ID 69.) According to Stallworth, Officer Farris “grabbed [Stallworth] out of
[his] vehicle” with such force that Stallworth’s “hearing aid fell out of his ear.” (Id.
at ¶17, ECF #14 at Pg. ID 69.) Officer Farris then “handcuffed [Stallworth]
extremely tightly and escorted [him] to a police vehicle.” (Id. at ¶18, ECF #14 at Pg.
ID 70.) In this action, Stallworth alleges that the officers violated his civil rights
during and following his arrest and detention. He has sued both officers and the
cities of Pleasant Ridge and Ferndale.
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The parties are now engaged in discovery. On December 19, 2016, the City
of Ferndale and Officer Farris issued a subpoena and deposition notice for a man
named Francis Thomas (“Thomas”). (See ECF #28-3.) According to Defendants,
Thomas was a passenger in Stallworth’s car on the night Stallworth was arrested and
“witnessed the events giving rise to this litigation.” (See ECF #28 at ¶1, Pg. ID 162;
see also Police Report, ECF #28-2.)
On four separate occasions, a process sever unsuccessfully attempted to serve
Thomas with the subpoena and deposition notice at Thomas’ home. (See id. at ¶5,
Pg. ID 162; see also Affidavit of Non-Service, ECF #28-5 at Pg. ID 188.) On at
least two of those attempts, the process sever left his business card at Thomas’ home
so that Thomas could contact him. (See Affidavit of Non-Service at ¶¶ 1-2, ECF
#28-5 at Pg. ID 188.) In addition, the City of Pleasant Ridge hired a private
investigator in an effort to locate and serve Thomas. (See ECF #29 at ¶3, Pg. ID
190.) The investigator confirmed Thomas’ home address and attempted to serve the
subpoena at that location. (See id. at ¶¶ 5-7, Pg. ID 191-92.) Despite the fact that
the television was on, and the investigator could see an occupant inside the home,
nobody answered the door. (See id. at ¶¶ 7-8, Pg. ID 191.) A subsequent attempt by
the investigator to serve Thomas at that address was also unsuccessful. (See id. at
¶9, Pg. ID 191.)

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The City of Ferndale and Officer Farris have now filed a motion in which they
ask the Court for permission to serve Stallworth with the subpoena and deposition
notice by alternative means (the “Alternative Service Motion”). (See ECF # 28.)
Defendants ask that they be allowed to serve Thomas “by First-Class Mail and
tacking the [subpoena and deposition notice] to the front door” of Thomas’ home.
(See id. at ¶10 Pg. ID 163.) Defendants the City of Ferndale and Officer Champine
have joined the Alternative Service Motion. (See ECF #29.) Stallworth has not filed
any opposition. (See Dkt.)
Federal Rule of Civil Procedure 45(b)(1) provides that “[s]erving a subpoena
requires delivering a copy to the named person and, if the subpoena requires that
person's attendance, tendering the fees for 1 day's attendance and the mileage
allowed by law.” While some courts have held that compliance with Rule 45
requires personal service of the subpoena, “[t]here is no consensus on that point”
and “[a] number of courts have permitted service by certified mail and other means
if the method of service is made in a manner designed to reasonably insure actual
receipt of the subpoena by the witness.” OceanFirst Bank v. Hartford Fire Ins. Co.,
794 F.Supp.2d 752, 754 (E.D. Mich. 2011) (internal quotation marks omitted;
collecting cases). Judges on this Court have repeatedly held that Rule 45 does not
require personal service. See id.; Nithyananda Dhanapeetam of Columbus v. Rao,

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2016 WL 1637559, at *3 (E.D. Mich. April 26, 2016); Halawani v. Wolfenbarger,
2008 WL 5188813, at *4 (E.D. Mich. Dec. 10, 2008).
In OceanFirst Bank, this Court held that a subpoena for deposition could be
served on a non-party by alternative means (i.e., without personal service) if certain
requirements were met:
The Court is persuaded by and adopts the reasoning of the
courts that interpret Rule 45 to allow service of a subpoena
by alternate means once the party seeking evidence
demonstrates an inability to effectuate service after a
diligent effort. The alternate means must be reasonably
calculated to achieve actual delivery. Mailing by firstclass 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, 794 F.Supp.2d at 754; internal citations omitted).
Here, Defendants have satisfied these requirements.

First, they have

sufficiently shown an “inability to effectuate service after a diligent effort.” Id.
Indeed, as noted above, not only did the City of Ferndale and Officer Farris have a
process server attempt to serve Thomas four separate times (leaving his contact
information at Thomas’ door on at least two of those occasions), the City of Pleasant
Ridge and Officer Champine hired a private investigator, confirmed Thomas’ home
address, and twice attempted to serve him at that address to no avail.

The

Defendants’ attempts to serve Thomas were “diligent.” Second, their requested
means of alternative service – sending the subpoena and deposition notice to Thomas
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by First-Class Mail and tacking the documents to the door of his home – are precisely
the two kinds of service identified in OceanFirst Bank. Service in these manners is
“reasonably calculated to achieve actual delivery.” Id.
Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that
the Alternative Service Motion is GRANTED.

Defendants may serve their

subpoena and deposition notice on Thomas by (1) sending a copy to his home
address by First-Class Mail and (2) physically posting a copy of the subpoena and
deposition notice at his residence. Defendants shall also include a copy of this Order
with the subpoena and deposition notice.

IT IS SO ORDERED.

Dated: March 21, 2017

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on March 21, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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