Cross v. Doe, et al

Filing 9

ORDER DENYING without Prejudice 4 Defendants' Motion to Dismiss and Granting Leave to File Amended Complaint. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANNY CROSS,
Plaintiff,
Case No. 15-14254
Hon. Terrence G. Berg

v.
JAMES COMPTON, et al.,
Defendants.

ORDER DENYING WITHOUT PREJUDICE
DEFENDANTS’ MOTION TO DISMISS (DKT. 4)
AND GRANTING LEAVE TO FILE AMENDED COMPLAINT
Plaintiff filed this lawsuit in December of 2015. Dkt. 1. In April of 2016, the Court
issued an order to show cause why the case should not be dismissed for failure to
prosecute. Dkt. 2. Plaintiff showed cause by explaining that he was waiting on
Freedom of Information Act requests to determine the identities of the John Doe
defendants. The Court then entered a text-only order on May 25, 2016 allowing
Plaintiff an additional 60 days to serve the complaint.
Although he had not yet amended the complaint to include their names as
defendants, Plaintiff obtained summonses for two Deputies: Donald Jones and
Timothy Domansky. Dkt. 4, Ex. 4. Plaintiff attempted to serve those summonses
within the additional time the Court provided, but the Wayne County Sheriff’s Office
refused to accept service based on a belief that the complaint was filed outside the
relevant statute of limitations. Dkt. 4, Ex. 3.

Three mistakes warrant denying Defendants’ motion to dismiss without prejudice
and granting Plaintiff one last opportunity to serve the complaint. First, although the
summonses served by Plaintiff were signed by a Deputy Clerk of the Court, for
reasons that are not clear, they were not entered on Court’s docket—this appears to
be the Court’s mistake. Second, the summonses were for Sheriff Deputies who had
not yet been named as defendants in the complaint—this is Plaintiff’s mistake; he did
not seek to amend his complaint to add the Sheriff Deputies as defendants before
getting summonses for them. Third, Plaintiff’s attempt to serve the summonses was
rebuffed—this is Defendants’ mistake. Based on the Declaration of Assistant
Corporation Counsel James M. Surowiec, Wayne County’s Chief of Litigation, it
appears that he refused to accept service because he believed the action was filed
outside the statute of limitations and because he did not find the summonses on the
Court’s docket. Dkt. 4, Ex. 3. A better approach would have been to accept service in
light of a party’s duty to avoid unnecessary expenses of serving a summons, see
Fed. R. Civ. P. 4, and to have preserved any statute of limitations defense. The Court
is not aware of any authority for the proposition that a party’s good faith belief that
a complaint may have been filed outside the statute of limitations is a valid reason to
reject service of the complaint.
The right thing to do here is to allow Plaintiff to amend his complaint, add the
names of the defendants he is aware of, re-issue the summonses, and have the
complaint and summonses properly served and accepted, so that the case will be in a

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correct posture for the Court to consider any responsive pleading that Defendants
may file.
Accordingly,


Defendants’ motion to dismiss (Dkt. 4) is hereby DENIED
WITHOUT PREJUDICE;



The Court GRANTS LEAVE for Plaintiff to file an amended
complaint adding Deputies Jones and Domansky, and any other
Deputies whose identities Plaintiff has discovered and who he
believes were involved in the events giving rise to his claims;



Plaintiff SHALL FILE an amended complaint within 30 days from
the entry of this order, otherwise the Court will dismiss this case for
failure to prosecute;



After filing his amended complaint, Plaintiff SHALL REQUEST
summonses for the named defendants. The Court will ensure these
summonses are entered on the docket.



Plaintiff SHALL SERVE the named Defendants within 60 days of
filing his amended complaint.



Pursuant to Federal Rule of Civil Procedure 4(d)(1), Plaintiff may
request waiver of service.



If Defendants refuse to waive service, Plaintiff may arrange for
service of the summonses and submit to the Court an accounting of
the additional costs caused by Defendants’ refusal.



If Defendants refuse to waive service and then refuse to accept
service, Plaintiff may move for Defendants to show cause why they
did not waive service or accept service, and why costs of arranging
service should not be borne by Defendants.

IT IS SO ORDERED.

Dated: February 21, 2017

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

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Certificate of Service
I hereby certify that this Order was electronically submitted on February 21,
2017, using the CM/ECF system, which will send notification to all parties.
s/A. Chubb
Case Manager

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