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

Filing 9

ORDER granting in part and denying in part 8 Motion for Alternate Service. (**Plaintiff must submit summonses to the Clerk's Office for Issuance) - 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 IN PART AND DENYING IN PART 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 [8]
I.

BACKGROUND
On March 14, 2018, this Court ordered Plaintiff Live Face on Web, LLC 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. This matter is presently before
the Court on 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. # 8).
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 summons and complaint be served upon Defendant Stahold Corp. by leaving the
summons and complaint with someone over eighteen years of age at Stahold's principal
place of business, and that the summons and complaint be served upon Defendant

Thomas R. Strachler by taping the summons and complaint to the front door of Stachler's
home. Plaintiff states it will serve both Defendants through certified mail as well.
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).
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
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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
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
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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. Plaintiff has attempted unsuccessfully to serve Stahold Corp.
and Strachler, the principal of Stahold Corp., fourteen times at two different addresses: (1)
four times at 555 Briarwood Circle, Ann Arbor, MI, Stahold's principal place of business,
and (2) ten times at 60 Timber Ridge Ct., Milan, MI 48160, which Plaintiff and its process
server believe is Strachler's home address. See Dkt. # 8-2; Dkt. # 8-3. These attempts
were made at varying times throughout the day, as detailed in the affidavits from the
process server attached to Plaintiff's motion. Id. 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.
However, the affidavits from the process server are devoid of facts establishing that
service of process cannot reasonably be made as provided in the rules discussed above,
merely stating that each time service was attempted, there was "no answer" at the
addresses. See Dkt. # 8-2; Dkt. # 8-3. Additionally, Plaintiff has not set forth any facts
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showing that 60 Timber Ridge Ct., Milan, MI 48160 is indeed where Defendant Strachler
currently resides. Therefore, the Court finds that Plaintiff has not established that service
cannot be made by the prescribed means as to each Defendant, or that the proposed
alternate method is likely to give actual notice as to Defendant Strachler. Accordingly, the
Court will deny without prejudice Plaintiff's request to alternatively serve Defendants.
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. # 8) is GRANTED IN PART with
respect to Plaintiff's request to reissue and extend the summonses. Plaintiff shall submit
new summonses to the Clerk's Office for issuance. The summonses shall expire on
June 11, 2018.
IT IS FURTHER 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. # 8) is DENIED IN PART WITHOUT PREJUDICE with respect to
Plaintiff's request to alternatively serve Defendants. Plaintiff may renew its request upon
submission of more detailed affidavits and evidence establishing that service cannot be
made by the prescribed means, and that the proposed alternate method is likely to give
actual notice.
SO ORDERED.

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

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