Grimes v. DOE
ORDER granting plaintiff's Emergency Ex Parte Motion for Alternate Serviceof summons and amended complaint on Trooper Mark Bessner 8 Signed by District Judge Gershwin A. Drain. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MONIQUE GRIMES, as Personal
Representative of the Estate of
DAMON GRIMES, Deceased,
Case No.: 17-12860
Honorable Gershwin A. Drain
TROOPER MARK BESSNER, et
ORDER GRANTING PLAINTIFF’S EMERGENCY EX PARTE MOTION
FOR ALTERNATE SERVICE OF SUMMONS AND AMENDED
COMPLAINT ON TROOPER MARK BESSNER [#8]
Presently before the Court is Plaintiff’s Ex Parte Motion for Alternate
Service of Summons and Amended Complaint on Trooper Mark Bessner Pursuant
to Fed. R. Civ. P. 4(e)(1), filed on October 3, 2017. Plaintiff moves for alternate
service upon Defendant, Michigan State Police Trooper Mark Bessner. Plaintiff
asserts that Defendant Bessner has evaded Plaintiff’s diligent attempts to officially
effectuate service of process through traditional means. The Court conducted a
hearing on this matter on October 6, 2017.
Plaintiff filed the instant 42 U.S.C. § 1983 excessive force action on August
30, 2017. Plaintiff alleges that Defendant Bessner’s use of excessive force resulted
in her fifteen year-old son, Damon Grimes’s death on August 26, 2017.
Specifically, Defendant Bessner deployed his taser directly at Damon Grimes and
striking him as he was riding an ATV, which resulted in Damon Grimes being
propelled into the rear end of a vehicle.
Once the Plaintiff learned the identity of the Trooper who fired his taser at
Damon Grimes, Plaintiff filed an Amended Complaint on September 20, 2017
naming Defendant Bessner, as well as the officer who was with him on the date of
the incident. Plaintiff provided the Summons and Amended Complaint to the
process server, a former police officer, who conducted a postal check and
determined Defendant Bessner’s address. He confirmed that Defendant Bessmer
lives in the city identified during the postal search by speaking with reliable
sources at the Michigan State Police.
The process server went to the address provided during the postal check on
September 22, 2017 at 5:35 p.m. and knocked on the door, however nobody
answered the door. He noted a minivan in the driveway and left a card in the door
which states “Sorry we missed you please call as soon as possible we have
important legal paperwork for you.” The card also provided a contact number and
business information. He returned the next day around noon, however there was
no answer at the door or any vehicles in the driveway. He noted that the card he
had left the previous day was gone. He went back to the home a few days later,
and again there was no answer at the door or vehicles in the driveway. He left a
card. The next day, the process server reported the same circumstances and noted
that the card he had left the previous day.
On September 29, 2017, the process
server returned to the home and while there was no answer at the door, he noted
that his card was gone, the minivan was in the driveway and the lights were on
inside the residence. The next day, a Saturday, he arrived at the home at 8:00 a.m.
and yet again nobody answered the door even though the minivan was in the
driveway. The process server decided to observe the home. He knocked on the
door about forty-five minutes later, and nobody answered the door. He noticed the
card he left in the door the previous day had been removed. He attempted to
effectuate service roughly an hour later, but again there was no answer at the door.
Around 10:00 a.m. that day, a female arrived at the home. The process
server attempted to make contact with her but she would only say “hello.” She
then took the card off the door and entered the house. She declined to answer the
door when the server knocked. The server made three additional attempts to serve
process, but the door was never answered. He remained at the residence until
roughly 4:00 p.m. The server also called multiple phone numbers associated with
Defendant, his wife and his suspected attorney.1 He has not received any response
to his calls.
LAW & ANALYSIS
Plaintiff asserts that Defendant Bessner is intentionally evading service. She
requests that the Court permit alternate service by posting the Summons and
Amended Complaint on the front door of his residence.
Federal Rule of Civil Procedure 4(e)(1) governs service on an individual
within a judicial district of the United States. The rule states that:
Unless federal law provides otherwise, an individual—other than a
minor, an incompetent person, or a person whose waiver has been
filed—may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the district
court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual’s dwelling or
usual place of abode with someone of suitable age and discretion who
resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
the hearing, Plaintiff provided the Court with email correspondence from Rick
Convertino indicating that he had accepted service on behalf of Mr. Bessner, but he
was not in fact Mr. Bessner’s attorney in this civil matter. As such, he forwarded
the summons and amended complaint to the attorney for the Michigan State
Troopers Association, Larry Schneider. In his email correspondence, Mr.
Convertino indicated that Mr. Schneider informed him that he would forward a
copy of the summons and amended complaint to the appropriate personnel.
Fed. R. Civ. P. 4(e)(1)-(2).
The Plaintiff, through the process server, has attempted to personally serve
Defendant Bessmer on twelve occasions, six of which it appeared that there were
occupants in the residence who refused to answer the door and one instance where
a female was observed entering the home, but would not answer the door when the
process server knocked numerous times during a six-hour period. As such, it does
not appear that Plaintiff will be able to effectuate service pursuant to Fed. R. Civ.
P. 4(e)(2), thus Plaintiff must serve process pursuant to Michigan law.
Michigan Court Rule 2.105(A) states that service of process on an individual
may be accomplished 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).
Mich. Ct. R. 2.105(A). Plaintiff maintains that she is attempting service by
the means delineated in Mich. Ct. R. 2.105(A)(2), however she anticipates
Defendant Bessner will refuse to sign for the mail, thus service likewise
cannot be effectuated under this subrule.
Michigan law also provides for service by other means, at the
discretion of the Court, if it is shown that service cannot be reasonably made
as provided by Mich. Ct. R. 2.105(A)(2). Specifically, the rule states:
(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.
(3) Service of process may not be made under this subrule
before entry of the court’s order permitting it.
Mich. Ct. R. 2.105(I). Accordingly, Plaintiff requests that the Court enter an
Order allowing service of process to be made in another manner pursuant to
Specifically, Plaintiff requests that she be permitted to serve
process by posting the Summons and Amended Complaint on the front door
of Defendant Bessner’s residence.
Here, the Court finds that the Plaintiff has diligently attempted to
effectuate service of process on Defendant Bessmer, who has evaded service
of process to date. Moreover, the Court notes that this case has received
media attention, therefore it is likely that Defendant Bessner already has
notice of the instant action and this may be why he has evaded service. See
Dkt. No. 7, Ex. D. As such, the Court will require the Plaintiff to effectuate
service of process by the following means: (1) send the Summons and
Amended Complaint, as well as a copy of this Order to Defendant Bessner at
his address by certified mail; (2)
posting the Summons and Amended
Complaint, as well as a copy of this Order on the front door of Defendant
Bessner’s home; and (3) by daily publication for two weeks in a local
Michigan newspaper of general circulation. These methods are reasonably
calculated to provide Defendant Bessner with notice of these proceedings
and an opportunity to be heard.
Accordingly, Plaintiff’s Ex Parte Motion for Alternate Service of Summons
and Amended Complaint on Trooper Mark Bessner Pursuant to Fed. R. Civ. P.
4(e)(1) [#8] is GRANTED.
Dated: October 6, 2017
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 6, 2017, by electronic and/or ordinary mail.
/s/ Marcia Beauchemin for Tanya Bankston
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