Live Face on Web, LLC v. Stahold Corp. et al

Filing 19

ORDER Granting 18 Ex Parte Motion for an Order Extending the Time to Serve the Summons and Complaint, for Reissued Summons, and for Alternate Service - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LIVE FACE ON WEB, LLC,
Case No. 17-13918
Plaintiff,
Honorable Nancy G. Edmunds
v.
STAHOLD CORP. and
THOMAS R. STRACHLER,
Defendants.
/
ORDER GRANTING PLAINTIFF'S EX PARTE MOTION
FOR AN ORDER EXTENDING THE TIME TO SERVE
THE SUMMONS AND COMPLAINT, FOR A REISSUED SUMMONS, AND FOR
ALTERNATE SERVICE [18]
I.

BACKGROUND
On December 5, 2017, Plaintiff Live Face on Web, LLC filed its complaint and

summonses were issued. On March 14, 2018, this Court ordered Plaintiff to show cause
why this case should not be dismissed given that Plaintiff had failed to timely serve
Defendants. On March 23, 2018, Plaintiff responded that it had attempted to serve
Defendants fourteen times but had not yet been successful, and Plaintiff filed an Ex Parte
Motion for an Order Extending the Time to Serve the Summons and Complaint, for a
Reissued Summons, and for Alternate Service. On April 10, 2018, this Court granted the
motion in part with respect to Plaintiff's request to reissue and extend the summonses. The
Court denied without prejudice Plaintiff's request to alternatively serve Defendants. The
summonses were reissued on April 10, 2018 and expired on June 11, 2018. On June 19,
2018, the Court again ordered Plaintiff to show cause why this case should not be

dismissed for failure to timely serve Defendants. On June 29, 2018, Plaintiff responded that
it has attempted to serve Defendants an additional twenty-two times to no avail; that notes
left at Defendant Thomas R. Stachler's home and work have been delivered; that Plaintiff's
process server has called and texted Stachler without response; and that the only
explanation is that Defendants are evading service. (Dkt. # 17).
This matter is presently before the Court on Plaintiff's second Ex Parte Motion for an
Order Extending the Time to Serve the Summons and Complaint, for a Reissued
Summons, and for Alternate Service, filed on June 29, 2018. (Dkt. # 18). Plaintiff requests
that the Court extend the time to serve the summonses and complaint by 60 days and
reissue the summonses.

Plaintiff further requests that the Court permit that the

summonses and complaint be served upon Defendants by leaving the summonses and
complaint with Stachler's personal assistant and by taping the summonses and complaint
to the front door of Stachler's home.
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 4(m) requires service within 90 days after a complaint

is filed:
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). The plaintiff has the burden of establishing good cause, and the
determination of good cause is left to the sound discretion of the district court. Habib v.
Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994).

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Federal Rule of Civil Procedure 4 also sets forth the rules for serving individuals in
subsection (e) and corporations in subsection (h). Both subsections provide that service
may be accomplished by "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." Fed. R. Civ. P. 4(e)(1), (h)(1)(A). An individual may also be served by
delivering a copy of the summons and complaint to the individual personally, 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 by delivering a copy of each to an agent authorized
by appointment or by law to receive service of process. Fed. R. Civ. P. 4(e)(2). A
corporation may also be served by delivering a copy of the summons and 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. Fed. R. Civ. P.
4(h)(1)(B).
Under Michigan law, an individual may be served by "delivering a summons and a
copy of the complaint to the defendant personally," or by "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." Mich. Ct. R. 2.105(A). Michigan law provides that a corporation may be
served by:
(1) serving a summons and a copy of the complaint on an officer or the resident
agent;
(2) serving a summons and a copy of the complaint on a director, trustee, or
person in charge of an office or business establishment of the corporation and
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sending a summons and a copy of the complaint by registered mail, addressed
to the principal office of the corporation;
(3) serving a summons and a copy of the complaint on the last presiding officer,
president, cashier, secretary, or treasurer of a corporation that has ceased to
do business by failing to keep up its organization by the appointment of officers
or otherwise, or whose term of existence has expired;
(4) sending a summons and a copy of the complaint by registered mail to the
corporation or an appropriate corporation officer and to the Michigan Bureau of
Commercial Services, Corporation Division if
(a) the corporation has failed to appoint and maintain a resident agent or to
file a certificate of that appointment as required by law;
(b) the corporation has failed to keep up its organization by the appointment
of officers or otherwise; or
(c) the corporation's term of existence has expired.

Id. at 2.105(D). The Michigan rule also provides that, "[o]n 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." Id. at
2.105(I)(1).
"To obtain permission for alternate service, the plaintiff must establish (1) that service
cannot be made by the prescribed means, and (2) that the proposed alternate method is
likely to give actual notice." United States v. Szaflarski, No. CIV. 11-10275, 2011 WL
2669478, at *1 (E.D. Mich. July 7, 2011).
III.

ANALYSIS
In this case, Plaintiff retained the services of a process server to identify the current

addresses of Defendants. Defendant Stahold Corp.'s current address is 226 W. Michigan
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Ave., Ypsilanti, MI. (Dkt. # 18-1, Pg ID 180-81). This address is only a mailbox. Id. at Pg
ID 179-80. Stahold's registered agent for service of process is Defendant Stachler. Id. at
Pg ID 181. Stachler's current home address is 60 Timber Ridge Ct., Milan, MI. Id. at Pg
ID 179, 182, 185-86. Stachler is also affiliated with another company, Real Estate One,
with its principal place of business at 555 Briarwood Circle, Suite 200, Ann Arbor, MI. Id.
at Pg ID 180, 183-84, 187. Stachler has an assistant who works at that address. Id. at Pg
ID 179.
Plaintiff has attempted unsuccessfully to serve Defendants over thirty times: (1) ten
times at 555 Briarwood Circle, Ann Arbor, MI, Stachler's Real Estate One place of business
where he has an assistant who knows how to contact him; (2) nineteen times at 60 Timber
Ridge Ct., Milan, MI, Strachler's current home address; and (3) five times at 226 W.
Michigan Ave., Ypsilanti, MI, Stahold's principal address which is a mailbox. Id. at Pg ID
179-80. These attempts were made at varying times throughout the day, as detailed in the
affidavit from the process server attached to Plaintiff's motion. Id.
Stachler is aware of the attempts to serve him. Plaintiff's process server has
determined his phone number and has called and texted him several times. Id. at Pg ID
179, 183-84. Additionally, the process server has spoken with Stachler's assistant and has
told her that she is attempting to serve him with a lawsuit. Id. at Pg ID 179. Stachler's
assistant has confirmed that she has passed on the process server's message and contact
information to Stachler. Id. at Pg ID 179-80. When the process server called the phone
number at the Ypsilanti office where the Stahold mailbox is located, Stachler's assistant at
Real Estate One answered but then claimed to have nothing to do with Stahold. Id. at Pg
ID 179. Plaintiff's process server has also attempted service at Stachler's home when
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people are at the home with vehicles at the home and lights on inside the house, but no
one has answered the door. Id. at Pg ID 179-80. The process server has left notes on the
door of the home, and at least three of them have been picked up and received. Id.
Under these circumstances, the Court finds that Plaintiff has made a showing of good
cause to extend the time to serve the summonses and complaint and reissue the
summonses. The Court will grant the request and extend the time to serve the summonses
and complaint for a period of 60 days. Additionally, based on the affidavit from the process
server and the attached supporting documentation setting forth the specific facts discussed
above, the Court agrees that Defendants are aware of attempts to serve them with this
lawsuit and are seemingly evading service. The Court will grant Plaintiff's request to
alternatively serve Defendants because the Court finds that service of process cannot
reasonably be made as provided in the rules discussed above. The Court concludes that
the proposed alternate method is likely and reasonably calculated to give Defendants
actual notice of the proceedings in this Court and an opportunity to be heard.
IV.

CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff's Ex Parte

Motion for an Order Extending the Time to Serve the Summons and Complaint, for a
Reissued Summons, and for Alternate Service (Dkt. # 18) is GRANTED. Plaintiff must
make the appropriate request for new summons be issued from the Clerk's Office.
The summonses shall expire on September 10, 2018.
IT IS FURTHER ORDERED that Plaintiff may serve Defendants with the summonses
and complaint by:

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(A) Posting a separate copy thereof for each Defendant, along with a separate copy
of this motion and order for alternate service for each Defendant, at Defendant
Stachler's residence at 60 Timber Ridge Ct., Milan, MI;
(B) Mailing separate copies of the same for each Defendant by certified mail (return
receipt requested) to Defendant Stachler's residence noted above;
(C) Mailing separate copies of the same for each Defendant by first class mail to
Defendant Stachler's residence noted above;
(C) Leaving separate copies of the same for each Defendant with Stachler's assistant
at 555 Briarwood Circle, Suite 200, Ann Arbor, MI, one of Stachler's places of
business;
(D) Mailing separate copies of the same for each Defendant by certified mail (return
receipt requested) to Defendant Stachler's place of business noted above;
(E) Mailing separate copies of the same for each Defendant by first class mail to
Defendant Stachler's place of business noted above;
(F) Mailing separate copies of the same for each Defendant by certified mail (return
receipt requested) to 226 W. Michigan Ave., Ypsilanti, MI, Defendant Stahold Corp.'s
current address; and
(G) Mailing separate copies of the same for each Defendant by first class mail to
Defendant Stahold Corp.'s current address noted above.
Plaintiff shall file a certificate confirming service as provided herein on or before September
10, 2018.

SO ORDERED.
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s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: July 10, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record
on July 10, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

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