United of Omaha Life Insurance Company v. McIntosh et al

Filing 7

ORDER Granting Plaintiff's #6 Motion for Alternate Service. Signed by District Judge Matthew F. Leitman. (HRya)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED OF OMAHA LIFE
INSURANCE COMPANY,
Plaintiff,

Case No. 25-cv-10193
Hon. Matthew F. Leitman

v.
BREON MCINTOSH, et al.,
Defendants.
__________________________________________________________________/
ORDER GRANTING PLAINTIFF’S
MOTION FOR ALTERNATE SERVICE (ECF No. 6)
In this action, Plaintiff United of Omaha Life Insurance Company seeks a
declaratory judgment “regarding the eligibility of beneficiaries to receive death
benefits” pursuant to a “whole life insurance policy” following the death of Andricka
N. McIntosh. (Compl., ECF No. 1, PageID.2.) Plaintiff served its Complaint on
Defendant Breon McIntosh on January 31, 2025. (See Certificate of Service, ECF
No. 5.) However, Plaintiff has not been able to serve Defendant Taunya M. Sims.
Accordingly, on March 6, 2025, Plaintiff filed a motion for alternate service.
(See Mot., ECF No. 6.) In that motion, Plaintiff asks the Court for permission to
serve Sims by (1) registered or certified mail with restricted delivery and a return
receipt requested, (2) publishing a copy of the order in a newspaper, or (3) posting a

1

copy of the order in the courthouse and other public places. (See id., PageID.28-30.)
For the reasons explained below, Plaintiff’s motion is GRANTED.1
I
A
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.” In turn, 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).
Mich. Ct. Rule 2.105(A)(1)-(2).
Michigan Court Rule 2.105(J) further provides that substituted service may
be appropriate under some circumstances:

1

The Court concludes that it may resolve this motion without oral argument. See
E.D. Mich. Local Rule 7.1(f)(2).
2

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. Rule 2.105(J).
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.
B
The Court concludes that Plaintiff’s motion, supported by the proof of nonservice and affidavit of its process server (see ECF Nos. 6-2, 6-3), satisfies the
requirements for alternative service described above. First, Plaintiff has sufficiently
shown that service of Sims “cannot reasonably be made” under the usual methods
3

for service of an individual under the Michigan Court Rules. Mich. Ct. Rule
2.105(I)(1). Plaintiff has attempted to personally serve Sims on nine separate
occasions, all without success. (See Plaintiff’s Proof of Non-Service, ECF No. 6-2;
Affidavit of Process Server, ECF No. 6-3.)
Second, as required under Michigan Court Rule 2.105(2), Plaintiff submitted
a motion that is dated within 14 days of filing, and it was supported by the affidavit
of its process server and other evidence. (See Mot., ECF No. 6.) The motion and
supporting documents provided evidence that Plaintiff has not been able to
successfully serve Sims despite diligent efforts. The motion also includes Sims’s
last known address. (See ECF Nos 6-2, 6-3.)
Finally, the ways in which the Court will require Plaintiff to serve Sims – i.e.,
by First Class and Certified Mail (return receipt requested), by publishing a copy of
the order in a newspaper, and by posting a copy of the order in the courthouse and
at least two or more other public places – are “reasonably calculated to give [Sims]
actual notice of the proceedings and an opportunity to be heard.” Mich. Ct. Rule
2.105(I)(1).
Accordingly, for all the reasons stated above, Plaintiff’s motion for alternative
service (ECF No. 6) is GRANTED as follows: Plaintiff shall serve Sims by the
following methods:

4

? Mailing a copy of (1) the Summons, (2) the Complaint, and (3) this order, via
First Class and Certified Mail (return receipt requested), to Sims’s residential
address identified in Plaintiff’s motion;
? Publishing a copy of (1) the Summons, (2) the Complaint, and (3) this order
once each week for three consecutive weeks in a newspaper in the county
where Sims resides pursuant to the procedure set forth in Mich. Ct. R.
2.106(D); and
? Posting a copy of (1) the Summons, (2) the Complaint, and (3) this order in
the courthouse and two or more other public places for three continuous weeks
pursuant to the procedure set forth in Mich. Ct. R. 2.106(E).
Plaintiff shall also file a Certificate of Service with the Court after it serves
Sims as directed in this order.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: March 11, 2025
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on March 11, 2025, by electronic means and/or
ordinary mail.
s/Holly A. Ryan
Case Manager
[phone]

5