Communications Supply Corporation v. Philadelphia Indemnity Insurance Company et al
ORDER Granting Plaintiff's 9 Ex Parte Motion for Substituted Service Upon Defendant Sonk Data Products, Inc. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
COMMUNICATIONS SUPPLY CORP.,
Case No. 17-cv-11200
Hon. Matthew F. Leitman
INSURANCE COMPANY et al.
ORDER GRANTING PLAINTIFF’S EX PARTE MOTION FOR
SUBSTITUTED SERVICE UPON DEFENDANT
SONK DATA PRODUCTS, INC. (ECF #9)
On April 17, 2017, Plaintiff Communications Supply Corporation (“CSC”)
filed this action against Defendants Philadelphia Indemnity Insurance Company and
Sonk Data Products, Inc. (See Compl., ECF #1.)
On April 26, 2017, CSC
successfully served Philadelphia Indemnity. (See Certificate of Service, ECF #7.)
CSC has not been able to successfully serve Sonk Data Products, Inc. (“Sonk”).
On May 17, 2017, CSC filed an ex parte motion in which it requests that the
Court allow it to serve Sonk via substituted service. (See ECF #9.) In CSC’s motion,
it explains that it twice attempted to serve Sonk with service of process at Sonk’s
“registered office address” – which is also the residential address that belongs to
Sonk’s registered agent Hugh Sonk – but that its process server was unsuccessful.
(Id. at ¶2, Pg. ID 63.) In an amended affidavit supporting Sonk’s motion, its process
server averred that:
On 4/24/17 at 11:50 a.m., I attempted service on [Sonk] at
the registered office address, 505 East Huron, Ann Arbor,
MI – a residential condominium complex. I spoke with a
receptionist in the lobby of the condominium facility. She
confirmed that Hugh Sonk lived there and placed a phone
call to Mr. Sonk’s unit but there was no answer.
On 5/2/17 at 6:59 p.m., I again attempted service of Mr.
Sonk at 505 East Huron, Ann Arbor, MI. Although the
lobby was closed, there was an automated phone system
on the outside of the building which listed Mr. Sonk as a
resident with a corresponding phone number. I called the
number listed. A gentleman answered. I asked for Mr.
Hugh Sonk. The man asked who was calling. I stated I
had some documents for him, and the man replied that Mr.
Sonk was not home and hung up.
(Amended Affidavit of Process Server Greg Reichelt at ¶¶ 1, 3, ECF #10 at Pg. ID
CSC also attempted to serve Sonk at Sonk’s commercial address, but
according to CSC’s process server, that address was vacant:
On 4/24/17 at 12:50 p.m., I attempted service at the
business address of Sonk Data Products, Inc., a/k/a/
Peripheral Vision, 39201 Schoolcraft Road, Suite B14,
Livonia, Michigan – the office [was] empty and the
business [was] closed. I called the phone number for that
office at 855-292-2924. This number [was] no longer in
service for this business – it [was] a substance abuse
(Id. at ¶2, ECF #10 at Pg. ID 72.)
CSC now seeks the Court’s permission to complete service of Sonk by “(i)
leaving the [summons and Complaint] with the receptionist at 505 East Huron with
instructions to deliver to Mr. Sonk, (ii) [mailing the summons and Complaint by]
certified mail to 505 East Huron, return receipt requested, and (iii) [mailing the
summons and Complaint by] first class mail to 505 East Huron, in plain white
envelopes with no return address.” (Mot. at ¶5, ECF #9 at Pg. ID 63.)
Federal Rule of Civil Procedure 4(h)(1) provides in relevant part that “a
domestic or foreign corporation … must be served ... in a judicial district of the
United States in the manner prescribed by Rule 4(e)(1) for serving an individual; or
by delivering a copy of the summons and of the complaint to an officer, a managing
or general agent, or any other agent authorized by appointment or by law to receive
service of process and – if the agent is one authorized by statute and the statute so
requires – by also mailing a copy of each to the defendant.” In turn, Federal Rule of
Civil Procedure 4(e)(1) provides 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 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).
Michigan Court Rule 2.105(I) further provides that substituted 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
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.
3. Service of process may not be made under this subrule
before entry of the court's order permitting it.
In Michigan, substituted service “is not an automatic right.” Krueger v.
Williams, 300 N.W.2d 910, 915 (Mich. 1981). “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 CSC’s motion, supported by the amended
affidavit of its process server, satisfies the requirements for substituted service under
MCR 2.105(I) and Michigan law. As described above, CSC’s process server twice
attempted to serve Sonk at the address of its registered office – which is also the
residential address of Sonk’s registered agent – and CSC also attempted to serve
Sonk at its commercial address. Thus, CSC has acted with diligence in its attempt
to serve Sonk. Moreover, the three ways in which CSC requests to serve Sonk, when
considered collectively, appear “reasonably calculated to give [Sonk] actual notice
of the proceedings and an opportunity to be heard.” M.C.R. 2.105(I).
Accordingly, for all the reasons stated above, CSC’s ex parte motion for
substituted service (ECF #9) is GRANTED as follows: CSC shall serve Sonk with
a copy of (1) a summons, (2) the Complaint, and (3) this Order by the three following
Leaving the summons, Complaint, and this Order with the receptionist
at 505 East Huron, Ann Arbor, Michigan 48014 with instructions to
deliver those documents to Mr. Sonk;
Mailing the summons, Complaint, and this Order to 505 East Huron,
Ann Arbor, Michigan 48014 via certified mail, return receipt
Mailing the summons, Complaint, and this Order to 505 East Huron,
Ann Arbor, Michigan 48014 via first class mail, in a plain white
envelope with no return address.
CSC shall also file Certificates of Service with the Court after it serves Sonk
as directed in this Order.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: June 21, 2017
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on June 21, 2017, by electronic means and/or
s/Holly A. Monda
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