Falcon-Eggert v. Michigan Department of Human Services et al

Filing 13

ORDER Dismissing Without Prejudice Defendant Kay Andrzejak. Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VICTORIA FALCON-EGGERT,
Plaintiff,

Civil Action No.
13-CV-13172

vs.
HON. MARK A. GOLDSMITH
MICHIGAN DEPARTMENT OF
HUMAN SERVICES, et al.,
Defendants.
________________________________/
ORDER DISMISSING WITHOUT PREJUDICE DEFENDANT KAY ANDRZEJAK
This matter is presently before the Court in light of Plaintiff Victoria Falcon-Eggert’s
response to the Court’s Order to Show Cause. Plaintiff filed this employment action against
Defendants Michigan Department of Human Services (DHS), Kay Andrzejak, and Deborah
Walbecq on July 24, 2013. See Complaint (Dkt. 1). Summonses were issued for all three
Defendants on July 25, 2013. Summonses (Dkts. 4-6). Plaintiff filed Certificates of Service for
Defendants DHS and Walbecq on August 8, 2013 (Dkts. 7-8); those Defendants filed an answer to
the complaint on August 27, 2013 (Dkt. 9), and an amended answer on September 17, 2013 (Dkt.
10).
As of December 9, 2013, there was no indication whether the remaining Defendant — Kay
Andrzejak — had been served. Accordingly, the Court issued an Order requiring Plaintiff to
“SHOW CAUSE, in writing, by 12/16/2013, why the above-entitled case should not be dismissed
for failure to prosecute, pursuant to E.D. Mich LR 41.2.” Order to Show Cause (Dkt. 11).
Plaintiff filed her response on December 17, 2013 (Dkt. 12).

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Plaintiff claims that

“[s]ervice letters with the Summons and copies of the Complaint were sent on July 29, 2013 to . . .
Kay Andrzejak,” but that the United States Postal Service returned the mailing as undelivered for
an unknown reason. Id. at 2. The Postal Service allegedly re-tried delivery thereafter, but it was
returned again as undeliverable two days before the summons expired. Id. Plaintiff’s counsel
also notes that he “attempted personal service on Ms. Andrzejak but was unable to locate and serve
her prior to the expiration of the summons due to the inexplicable delay from the USPS.” Id.
Plaintiff’s counsel did not request an extension of time to serve the summons, however, nor did he
request alternative means of service, such as publication. To date, Defendant Andrzejak has not
been served. Id.
Plaintiff contends that “[d]ue to the multiple Defendants in this matter, two of whom,
Walbecq and DHS, have been served and have filed an Answer to the Complaint, this matter
should not be dismissed in its entirety for failure to prosecute and should continue as against
Walbecq and DHS.” Id. at 3. Implicit in this statement is Plaintiff’s acknowledgement that
dismissal of Defendant Andrzejak is appropriate. The Court agrees. Although Plaintiff details
the efforts to serve Defendant Andrzejak before the summons expired, Plaintiff did not request that
the time for service be extended or that alternative service be granted. Instead, it appears that the
action against Andrzejak would have continued to lay dormant but for the Court’s Order. Indeed,
Plaintiff’s response to the Order contains no description of Plaintiff’s anticipated next steps with
respect to Defendant Andrzejak, but instead appears to concede that dismissal is appropriate.
Accordingly, Defendant Andrzejak is dismissed without prejudice. See Fed. R. Civ. P. 4(m);
Local Rule 41.2. The case may continue as to the remaining Defendants — DHS and Walbecq.

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SO ORDERED.
Dated: December 18, 2013
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 18, 2013.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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