Monson v. Detroit, City of et al

Filing 68

ORDER denying 65 Motion for Alternate Service. Signed by District Judge Laurie J. Michelson. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAMARR MONSON,
Plaintiffs,
v.

Case No. 18-10638
Honorable Laurie J. Michelson
Magistrate Judge Stephanie Dawkins Davis

JOAN GHOUGOIAN, et al.,
Defendants.
ORDER DENYING DEFENDANT’S MOTION FOR ALTERNATIVE SERVICE [65]
Lamarr Monson brings this § 1983 suit against former Detroit Police Officers he says
violated his Constitutional rights back in the late 1990s. The officers were part of the investigation
and trial that ended in Monson’s murder conviction and resultant lengthy term of incarceration.
Before the Court is Defendants’ motion for alternative service of a subpoena on Cynthia
Stewart, a third-party witness. Stewart testified at Monson’s trial and the Defendants want to take
her deposition. To that end, the Defendants subpoenaed Stewart pursuant to Federal Rule of Civil
Procedure 45. But, thus far, the Defendants have not been able to personally serve Stewart. So the
Defendants ask the Court to permit their use of alternative service, namely, “tacking a subpoena
and deposition notice to the front door of her home and sending them to her via first-class mail.”
(ECF No. 65, PageID.2672.)
Among other things, Federal Rule of Civil Procedure 45 says “[s]erving a subpoena
requires delivering a copy to the named person and, if the subpoena requires that person’s
attendance, tendering the fees for 1 day’s attendance and the mileage allowed by law.” Fed. R.
Civ. P. 45(b)(1) (emphasis added). The rule’s direction to deliver “a copy to the named person”
has caused some confusion. The circuits are split over whether that language requires personal

service. See Oceanfirst Bank v. Hartford Fire Ins. Co., 794 F. Supp. 2d 752, 753 (E.D. Mich. 2011)
(collecting cases). The same goes for courts in this district. Compare Oceanfirst, 794 F. Supp. 2d
at 754 (“The Court is persuaded by and adopts the reasoning of the courts that interpret Rule 45 to
allow service of a subpoena by alternate means once the party seeking evidence demonstrates an
inability to effectuate service after a diligent effort.”) with Powell v. State Farm Fire & Cas. Co.,
No. 15-13342, 2015 U.S. Dist. LEXIS 192106, at *2 (E.D. Mich. Dec. 23, 2015) (“Under Rule
45(b), personal service expressly is required; the rule makes no allowance for service by alternate
means.”). And while the Sixth Circuit has indicated that Rule 45 requires personal service in some
situations, see Hill v. Homeward Residential, 799 F.3d 544, 553 (6th Cir. 2015), it has not
conclusively joined the circuit split one way or another, see Oceanfirst, 794 F. Supp. 2d at 753.
However, the reasoning used by courts permitting alternative service is persuasive,
especially the reasoning in Oceanfirst. And coupled with the Court’s interest in an efficient and
time-effective resolution of this matter, see Fed. R. Civ. P. 1, the Court will read Rule 45 “to allow
service of a subpoena by alternate means once the party seeking evidence demonstrates an inability
to effectuate service after a diligent effort.” Oceanfirst, 794 F. Supp. 2d. at 754; see also Thurmond
v. City of Southfield, No. 15-13167, 2016 U.S. Dist. LEXIS 160571, at *3–4 (E.D. Mich. Nov. 19,
2016). The alternative service must be “reasonably calculated to achieve actual delivery.”
Oceanfirst, 794 F. Supp. 2d. at 754 (citing Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950)).
However, the Defendants have not yet demonstrated a diligent effort to serve Stewart
personally. Defendants’ motion includes an affidavit from a private investigator tasked with
locating Stewart. (ECF No. 65-5.) The private investigator reached Stewart by phone, confirmed
her address, and went to that address. (ECF No. 65, PageID.2705–2706.) And when he went to the

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address, he was able to confirm, from Stewart’s cousin, that Stewart lives at the address. (Id.) But
the private investigator only went to the address twice, both times on the same day. (Id.) And both
times Stewart was not home. (Id. at PageID.2706.) So while the private investigator’s affidavit is
enough to establish that mailing the documents to the address and posting them to the door are
“reasonably calculated to achieve actual delivery” the affidavit does not demonstrate a diligent try
at serving Stewart personally. See, e.g., Stallworth v. City of Pleasant Ridge, No. 16-10696, at *5
(E.D. Mich. Mar. 21, 2017).
So, at this time, the Court DENIES without prejudice Defendants’ motion for alternative
service. Should the private investigator continue to be unable to serve Stewart at her home address,
Defendants may once again request permission to seek out alternative means of service.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Date: June 13, 2019
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
and/or pro se parties on this date, June 13, 2019, using the Electronic Court Filing system and/or
first-class U.S. mail.
s/William Barkholz
Case Manager

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