CROSSFIT, INC., v. Macomb Athletic Clubs, Inc. et al

Filing 18

ORDER Granting Plaintiff's 11 Motion for an Order for Alternative Service Upon Defendant Steve Millenbach and Extending Time to Serve the Summons and Complaint to Perfect Alternative Service. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CROSSFIT, INC.,
Plaintiff,

Case No. 16-cv-13609
Hon. Matthew F. Leitman

v.
MACOMB ATHLETIC CLUBS, INC. et al.,
Defendants.
_________________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR AN ORDER FOR
ALTERNATIVE SERVICE UPON DEFENDANT STEVE MILLENBACH
AND EXTENDING TIME TO SERVE THE SUMMONS AND COMPLAINT
TO PERFECT ALTERNATIVE SERVICE (ECF #11)
On October 10, 2016, Plaintiff CrossFit, Inc. (“CrossFit”) filed the instant
action against Defendants Macomb Athletic Clubs, Inc. (“Macomb Athletic”), Fitness
Promoters, Inc. (“Fitness Promoters”), and Steve Millenbach (“Millenbach”)
(collectively “Defendants”). (See Compl., ECF #1.) The Court issued summonses for
Macomb Athletic, Fitness Promoters, and Millenbach on October 11, 2016. On
October 12, 2016, CrossFit successfully served Macomb Athletic and Fitness
Promoters. (See Certificates of Service, ECF ## 7-8.) CrossFit has not yet served
Millenbach.
On December 2, 2016, CrossFit filed a “Verified Motion for Order Extending
Summons and Permitting Alternative Service on Individual Defendant Steve
Millenbach” (the “Motion”). (See ECF #11.) In the Motion, CrossFit contends that

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Millenbach is the owner of Macomb Athletic and Fitness Promoters, which operate a
fitness-training facility (the “Facility”) located at 40 N. Groesbeck Highway, Mt.
Clemens, Michigan 48043. (Id. at 2, Pg. ID 37.) CrossFit states that it has attempted
to serve Millenbach using three different methods.

First, it “attempted on five

separate occasions to personally serve Millenbach at the address of” the Facility, but
“Millenbach was not present at the time.” (Id. at 3, Pg. ID 38.) This statement is
supported by an Affidavit of Non-Service by the process server dated November 1,
2016. (See ECF #11-1.) Second, CrossFit obtained three additional addresses for
Millenbach through an online search and unsuccessfully attempted to serve
Millenbach personally at those addresses. (See ECF #11 at 3-4, Pg. ID 38-39.) This
statement is supported by an Affidavit of Non-Service by the process server dated
December 1, 2016.

(See ECF #11-3.)

Third, CrossFit attempted service on

Millenbach via certified mail, return receipt requested, at the address of the Facility.
Although CrossFit received a return receipt, the receipt was not signed by Millenbach,
as required under Michigan state law. (See ECF #11 at 4, Pg. ID 39.) CrossFit
attached a copy of the return receipt to the Motion. (See ECF #11-4.)
CrossFit now seeks the Court’s permission to complete service of Millenbach
through “a combination of U.S. Mail to and posting at” the Facility. (See Id. at 5, Pg.
ID 40; emphasis in original.) Federal Rule of Civil Procedure 4(e)(1) states that “an
individual may be served in a judicial district of the United States by following state
law for serving a summons in an action brought in the courts of general jurisdiction in

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the state where the district court is located or where service is made.” Michigan Court
Rule 2.105 governs service of process in the State of Michigan. That rule provides in
relevant part that process may be served on a resident or non-resident individual by:
1. delivering a summons and a copy of the complaint to
the defendant personally; or
2. sending a summons and a copy of the complaint by
registered or certified mail, return receipt requested, and
delivery restricted to the addressee. Service is made
when the defendant acknowledges receipt of the mail. A
copy of the return receipt signed by the defendant must
be attached to proof showing service under subrule
(A)(2).
MCR 2.105(A)(1)-(2).
However, Michigan Court Rule 2.105(I) provides that alternate service may be
appropriate under some circumstances:
1. On a showing that service of process cannot reasonably
be made as provided by this rule, 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.
2. A request for an order under the rule must be made in a
verified motion dated not more than 14 days before it is
filed. The motion must set forth sufficient facts to show
that process cannot be served under this rule and must
state the defendant's address or last known address, or
that no address of the defendant is known. If the name
or present address of the defendant is unknown, the
moving party must set forth facts showing diligent
inquiry to ascertain it. A hearing on the motion is not
required unless the court so directs.

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3. Service of process may not be made under this subrule
before entry of the court's order permitting it.
MCR 2.105(I).
In Michigan, substituted service “is not an automatic right.”
Williams, 300 N.W.2d 910, 915 (Mich. 1981).

Krueger v.

“A truly diligent search for an

absentee defendant is absolutely necessary to supply a fair foundation for and
legitimacy to the ordering of substituted service.” Id. at 919.
Here, the Court concludes that the Motion satisfies the requirements for
substituted service under MCR 2.105(I) and Michigan law.

First, CrossFit has

sufficiently shown that service of Millenbach “cannot reasonably be made,” MCR
2.105(I)(1), under the usual methods for service of an individual: personal service and
registered or certified mail.

CrossFit has already attempted to personally serve

Millenbach a total of eight times at four different addresses. And CrossFit has already
attempted to deliver the summons and complaint through certified mail, return receipt
requested, to a known address of Millenbach. Despite conducting what the Court
believes was a “truly diligent search,” Krueger, 300 N.W.2d at 919, CrossFit was
unsuccessful on all nine attempts under the usual methods of service.
Second, as required under MCR 2.105(2), CrossFit submitted a verified motion
that is dated within 14 days of filing and is supported by affidavits of the processserver. (See ECF #11.) Attached to the Motion is a document listing Millenbach’s last
known addresses. (See ECF #11-2.)

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Third, the Court believes that the Motion’s proposed method of substituted
service is “reasonably calculated to give [Millenbach] actual notice of the proceedings
and an opportunity to be heard.” MCR 2.105(I)(1). According to the sworn affidavit
of the process server who attempted to serve Millenbach at the Facility, the manager
of the Facility stated that Millenbach “comes and goes” from the Facility. (ECF #11-1
at 1, Pg. ID 42.) Thus, the Court believes that service of process by a combination of
U.S. Mail to the Facility and posting at the Facility is likely to give Millenbach with
notice of the proceedings (if he does not already have notice of the proceedings
through CrossFit’s past attempts to serve him).
In addition, the Court finds good cause to allow CrossFit an extension of time
to serve Millenbach through the method of substituted service requested in the
Motion. See Fed. Rule Civ. Proc. 4(m). The Court will extend the summonses for
Millenbach by thirty days from the date of this Order (such that they expire on
February 11, 2017).
Accordingly, for all the reasons stated above, the Motion is GRANTED.
IT IS SO ORDERED.

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

Dated: January 10, 2017

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on January 10, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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