Peck v. Michigan, State of et al

Filing 21

ORDER Cancelling Upcoming Hearing and Granting 15 Motion to Set Aside 9 Clerks Entry of Default . Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ALLEN PECK,
Plaintiff,

Civil Case No.
12-CV-14024

vs.
HON. MARK A. GOLDSMITH
STATE OF MICHIGAN, et al.,
Defendants.
___________________________/
ORDER CANCELLING UPCOMING HEARING AND GRANTING MOTION TO SET
ASIDE DEFAULT (DKT. 15)
On October 31, 2012, Defendant State of Michigan filed a motion (Dkt. 15) to set aside a
clerk’s entry of default. On November 1, 2012, the Court issued a notice of hearing setting the
matter for oral argument; the hearing is currently scheduled for December 6, 2012.

Plaintiff has

neither filed a response nor requested an extension of time in which to do so, and the response
deadline expired on November 14, 2012 pursuant to E.D. Mich. LR 7.1(e)(2)(B). Accordingly,
the Court will dispense with oral argument and, having reviewed the motion papers before it,
will grant the motion.
Defendant contends that the Court must set aside the entry of default because Defendant
was never properly served with the summons and complaint. Def. State of Mich. Br. at 1 (Dkt.
15). Defendant contends that under Federal Rule of Civil Procedure 4(j)(2)1 and Michigan Court

1

Federal Rule of Civil Procedure 4(j)(2) provides:
State or Local Government. A state, a municipal corporation, or any other statecreated governmental organization that is subject to suit must be served by:
1

Rule 2.105(G),2 the Governor was the proper party to be served. Id. at 1-3. Defendant argues
that because the summons and complaint were mailed to an address belonging to the Department
of Attorney General, at which the Governor does not maintain an office, service was not proper.3
Id. at 2. Defendant also contends that, even if service were proper, the entry of default should be
set aside because good cause to do so has been shown, based on the applicable three-part
equitable factor test: “(1) whether culpable conduct of the defendant led to the default; (2)
whether the defendant has a meritorious defense; and (3) whether the plaintiff will be
prejudiced.”

Id. at 4 (citing Burrell v. Henderson, 434 F.3d 826, 831 (6th Cir. 2006)).

Defendant argues that the default was not caused by purposeful delay or other culpable conduct
on its part, that it has the meritorious defense of sovereign immunity, and that there is no
evidence Plaintiff would be prejudiced; therefore, it contends the entry of default should be set
aside. Id. at 5-8.

(A) delivering a copy of the summons and of the complaint to its chief
executive officer; or
(B) serving a copy of each in the manner prescribed by that state's law for
serving a summons or like process on such a defendant.
2

MCR 2.105(G) provides, in pertinent part:
(G) Public Corporations. Service of process on a public, municipal, quasimunicipal, or governmental corporation, unincorporated board, or public body
may be made by serving a summons and a copy of the complaint on:
...
(8) the president, the chairperson, the secretary, the manager, or the clerk of any
other public body organized or existing under the constitution or laws of
Michigan, when no other method of service is specially provided by statute.
The service of process may be made on an officer having substantially the same
duties as those named or described above.

3

The summons and complaint were addressed to “State of Michigan, 3030 W. Grand Boulevard,
Ste. 10-200, Detroit, MI, 48202.” Certificate of Service (Dkt. 6).   
2

“If service of process was not proper, the court must set aside an entry of default.” O.J.
Distributing, Inc v. Hornell Brewing Co., Inc., 340 F.3d 345, 353-355 (6th Cir. 2003). The Court
concludes that proper service of process upon Defendant requires serving the summons and
complaint upon the Office of the Governor, because the Governor is the person most clearly in
the position of “chief executive officer” or “the president [or] chairperson” of the State of
Michigan. See Fed. R. Civ. P. 4(j)(2); MCR 2.105(G). Therefore, service was not proper, and
the entry of default must be set aside. Alternatively, the Court agrees with the State that it has
satisfied the three-part equitable test for setting aside a default.
Accordingly, the Court grants Defendant’s motion to set aside the entry of default.
SO ORDERED.

Dated: December 3, 2012
Flint, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on December 3, 2012.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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