Carpenters Pension Trust Fund - Detroit and Vicinity v. Century Truss Company et al

Filing 7

ORDER DENYING 6 Motion for Alternate Service and DISMISSING Case Without Prejudice. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
TRUSTEES OF CARPENTERS PENSION
TRUST FUND - DETROIT AND VICINITY,
Plaintiff,

Case No. 12-15165
HON. TERRENCE G. BERG

v.
CENTURY TRUSS COMPANY, a Michigan
corporation, CENTURY TRUSS COMPANY
OF MICHIGAN. a Michigan limited liability
company, RANDY M. BERGERON, an
individual, jointly and severally,
Defendants.

/

ORDER DENYING PLAINTIFF’S EX-PARTE MOTION FOR ALTERNATE
SERVICE AND DISMISSING CASE WITHOUT PREJUDICE
This matter is currently before the Court on Plaintiff’s Ex-Parte Motion for
Alternate Service, filed in response to the Court’s April 9, 2013 Order to Show
Cause. Having reviewed Plaintiff’s motion and the exhibits attached thereto, the
Court finds that Plaintiff has failed to show good cause why this case should not be
dismissed for failure to prosecute. As such, Plaintiff’s motion is DENIED and the
case shall be DISMISSED without prejudice.
This case was filed on November 21, 2012, and summonses for all Defendants
were issued on November 26, 2012.

According to the process server affidavits

attached to Plaintiff’s motion, service was attempted on multiple dates in
December. Those Affidavits are summarized, in relevant part, as follows:


Regarding Defendant Century Truss Company of Michigan, service was first
attempted at 7600 Kensington Court, Brighton, Michigan, on December 11,
2012. The tenant at that address, Tech Products, stated that that Century

Truss Company went out of business shortly before Tech Products purchased
the building in November 2012. Plaintiffs’ process server then identified
8085 Boardwalk, Brighton, Michigan, as a possible address for service and
attempted service at that address on December 14, 2012. The process server
noted that the building was closed, and there were no visible signs of truss
manufacturing at the location. The record shows no additional attempts
were made to serve this defendant.


Regarding Defendant Century Truss Company, service was first attempted at
32423 Grand River Avenue, Farmington Hills, Michigan, on December 12,
2012. The tenant at that address, Designs by Dompierre, stated that
Defendant was no longer in the building, and informed Plaintiff’s process
server that Defendant may be located in Brighton, Michigan. Plaintiffs’
process server then identified 7600 Kensington Court, Brighton, Michigan, as
a possible address for service and attempted service at that address on
December 21, 2012, but there was no answer.1 The record shows no
additional attempts were made to serve this defendant.



Regarding Defendant Randy Bergeron, service was first attempted at 26246
Ballantrae Court, Farmington Hills, Michigan, on December 12, 2012. There
was no answer. Shortly thereafter, on December 16, 2012, Plaintiffs’ process
server returned to that address to find a “VACANT LOT, HOUSE
BURNED DOWN.” As with Defendant Century Truss Company, service
was then attempted at 7600 Kensington Court, Brighton, Michigan, on
December 21, 2012, but there was no answer. The record shows no additional
attempts were made to serve this defendant.

(Dkt. 6, Ex. 1) (emphasis added). According to the process server’s affidavits, the
last recorded attempt to effectuate service was four months ago, on December 21,
2012. The affidavits were dated January 17, 2013. As of that date, Plaintiff was on
notice that the summonses had not been served on Defendants. Plaintiff provides
no evidence that it took any efforts to serve Defendants after January 17, 2013;
indeed, it does not appear that Plaintiff took any further action in this case until
confronted by the Court’s Order to Show Cause on April 9, 2013.

1 This

is the same address where Plaintiffs’ process server earlier attempted to serve Defendants
Century Truss Company of Michigan on December 11, 2012.

2

Under Federal Rule of Civil Procedure 4(m), a plaintiff has 120 days after the
filing of a complaint in which to effectuate service. Thus, Plaintiffs had until March
21, 2013, to either: (1) make additional attempts at service (until one of those
attempts was successful), or (2) file a motion for alternate service and an extension
of time. Plaintiff did neither, and the summonses expired. Under Rule 4(m), the
court must dismiss the complaint without prejudice (or order that service be made
by a certain date), unless Plaintiff shows good cause for failing to serve Defendants
within 120 days:
(m) Time Limit for Service. If a defendant is not served within 120
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) (emphasis added); see also Byrd v. Stone, 94 F.3d 217, 219 (6th
Cir. 1996) (“Absent a showing of good cause to justify a failure to effect timely
service, the Federal Rules of Civil Procedure compel dismissal”).
On April 9, 2013, the Court issued an Order to Show Cause Why This Case
Should Not be Dismissed for Failure to Prosecute (Dkt. 5).
Plaintiff responded to that Order by filing an Ex Parte Motion for Alternate
Service on April 16, 2013 (Dkt. 6). Under Fed. R. Civ. P. 4(e)(1), service may be
accomplished by following state procedural law, which, in Michigan, allows the
Court discretion to order alternate means of service if personal service cannot
reasonably be made and the alternate service would likely provide actual notice to
the defendant.

MCR 2.105(I)(1).

Unfortunately, Plaintiff’s proposed means of
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alternate service—mailing a copy of the summons and complaint and/or firmly
tacking a copy of same to the front door—is unlikely to be successful when, as
Plaintiff knows from its affidavits of service, two of the proposed addresses are for a
burned down building and a location no longer occupied by any of the defendants.
Consequently, the proposed alternate means of service is clearly not in a “manner
reasonably calculated to give the defendant actual notice of the proceedings and an
opportunity to be heard.” MCR 2.105(I)(1) (emphasis added).2
Furthermore, Plaintiff’s motion fails to demonstrate the necessary “good
cause” to extend the time for service in this case. From the date of its process
server’s affidavits, Plaintiff had over two months remaining in which to complete
service; the failure to try again does not constitute good cause.
If the proposed means of alternate service were authorized, and Defendants
failed to answer, it is entirely possible Plaintiff would seek and obtain a default
judgment against a group of defendants with no actual notice of the proceedings
against them. Such a result would be inappropriate. Plaintiff failed to serve the
complaint and summons within 120 days and has also failed to show any good cause
for this failure that would justify an extension of time. The Court will authorize
alternative service by mailing or posting to neither the address of a house that is
burned down, nor the address of a building where Defendants are no longer located.
It is unclear why Plaintiff fails to include 8085 Boardwalk, Brighton, Michigan in the list of
addresses provided for alternate service. Based on the affidavits, no one was ever reached at that
address; it is entirely possible that Defendants operate a business out of that location. Instead,
Plaintiffs included 17199 N. Laurel Park Drive, Suite 402, Livonia, Michigan. There is no evidence
that service was previously attempted at that address. Absent a “showing that service of process
cannot reasonably be made,” the Court will not authorize alternate service. See MCR 2.105(I)(1).
There is nothing in the record that supports the conclusion that personal service could not
reasonably be made at the Livonia address.
2

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Plaintiff may re-file the complaint and thereby gain an additional 120 days to
effectuate service of process. Alternate means of service may be authorized if good
cause is shown prior to the expiration of the 120 days.
Accordingly, Plaintiff’s Ex-Parte Motion for Alternate Service (Dkt. 6) is
DENIED. Further, it is ORDERED, pursuant to Fed. R. Civ. P. 4(m) and E.D.
Mich. LR 41.2, that this case is DISMISSED without prejudice for failure to
prosecute.

Dated: April 25, 2013

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically submitted on April 25,
2013, using the CM/ECF system, which will send notification to all parties.
s/A. Chubb
Case Manager

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