Abu-Joudeh v. Schneider et al
ORDER denying without prejudice 15 Motion to Compel; denying without prejudice 16 Motion to Compel; granting 18 Motion for Alternate Service. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
Case No. 16-13893
HEATHER SCHNEIDER, et al.,
ORDER GRANTING MOTION FOR ALTERNATIVE SERVICE AND
DENYING WITHOUT PREJUDICE MOTIONS TO COMPEL
This is a civil rights action under 42 U.S.C. §§ 1983 & 1985. Plaintiff Jiries Abu
Joudeh has filed a motion requesting that the court authorize alternative service against
Defendant Scott Sheets. (Dkt. # 18.) All other Defendants have been properly served
and have filed an answer to the complaint (Dkt. # 8).
The Federal Rules of Civil Procedure allow a plaintiff to serve a defendant with
the complaint by any method permitted by the state in which the federal court is located.
Fed. R. Civ. P. 4(e)(1). When a plaintiff in Michigan can make “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.” Mich.
Ct. R. 201(I)(1).
The court denied an earlier motion for alternative service by Plaintiff (Dkt. # 13) in
a text-only order entered February 17, 2017. The court noted that a single visit to
Defendant’s home address was insufficient to support substituted service. Plaintiff’s
instant motion, however, is supported by affidavit of a private investigator stating that in
addition to the insufficient single attempt that had gone before, the affiant knocked on
Defendant’s door twice more in February and once in mid-March, together with the
belief that Defendant was home at the time. (Dkt. ## 17, 18-3.) The additional efforts are
desultory at best, but court is at least minimally satisfied that Plaintiff cannot reasonably
effect service by the ordinary means. The court will authorize substitute service that
comports with the “reasonably calculated” standard required by Due Process and the
Michigan Court Rules. See Dusenberry v. United States, 534 U.S. 161, 168-69 (2002);
Mich. Ct. R. 201(I)(1).
Also before the court are two motions to compel discovery filed by Defendants.
(Dkt. ## 15, 16.) Parties may not seek discovery before the conference required by
Federal Rule of Civil Procedure 26(f) unless otherwise authorized by the rules, by
stipulation, or by court order. Fed. R. Civ. P. 26(d). Nothing in the record suggests that
the parties have met for the Rule 26(f) conference, no scheduling order is in place, and
the court is unaware of any stipulated early discovery. Neither motion speaks to these
questions. The court concludes that the motions are premature, and will deny them
without prejudice. Accordingly,
IT IS ORDERED that Plaintiff’s motion for alternative service (Dkt. # 17) is
GRANTED. Plaintiff is authorized to serve Defendant Sheets through (1) posting on the
front door by posting on the front door one copy of each of the summons, the complaint,
and this opinion in a transparent waterproof envelope, firmly affixing it to the door with
non-destructive adhesive tape; (2) delivering one copy of the papers to the residence by
First Class mail; and (3) delivering one copy of the papers to the residence by FedEx,
UPS, or DSL courier service.
IT IS FURTHER ORDERED that Plaintiff continue to visually monitor the
residence and take note of the day on which the posted notice has apparently been
removed; Plaintiff shall promptly inform the court of such observation by means of a
short memorandum filed on the docket.
IT IS FURTHER ORDERED that the time for service is EXTENDED pursuant to
Federal Rule of Civil Procedure 4(m). The deadline for timely service, executed in the
manner described above, is set for one week from the date of entry of this order.
IT IS FURTHER ORDERED that Defendants’ motions to compel (Dkt. ## 15, 16)
are DENIED WITHOUT PREJUDICE as premature in that no Scheduling Order is yet in
place. Fed R. Civ. P 26(d)(1). The parties, however, are free to voluntarily exchange
discovery demands before the 26(f) conference.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 13, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, April 13, 2017, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
S:\Cleland\JUDGE'S DESK\C1 ORDERS\16-13893.ABU-JOUDEH.authorize.alternative.service.deny.without.prejudice.compel.TLH.RHC.docx
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