United States of America v. Johnson

Filing 4

ORDER (1) Denying Plaintiff's 3 Motion for Verification for Alternate Service and (2) Extending Summons. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,

Case No. 18-cv-10949
Hon. Matthew F. Leitman

v.
DEIDRE B. JOHNSON,
Defendant.
_________________________________/
ORDER (1) DENYING PLAINTIFF’S MOTION FOR VERIFICATION
FOR ALTERNATE SERVICE (ECF #3) AND (2) EXTENDING SUMMONS
On March 23, 2018, the United States of America (“Plaintiff”) filed this action
against Defendant Deidre B. Johnson for failure to make payments on a student debt.
(See Compl., ECF #1.) On that same day, the Court issued a Summons for
Defendant. (See Summons, ECF #2.) On May 24, 2018, Plaintiff filed an ex parte
motion with an attached affidavit from a process server asking that the Court order
alternative service of Defendant. (See Mot., ECF #3.) In the affidavit attached to the
motion, the process server explains that he has unsuccessfully attempted to
personally serve Defendant at her last known address on four different occasions.
(See id.)
Federal Rule of Civil Procedure 4(e)(1) states 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
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the district court is located or where service is made.” Michigan Court Rule 2.105
governs service of process in the State of Michigan and it states 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).
MCR 2.105(A)(1)-(2). “On a showing that service of process cannot reasonably be
made as provided by this rule, [a] court may by order permit service of process to be
made in any other manner reasonably calculated to give [a] defendant actual notice
of the proceedings and an opportunity to be heard.” MCR 2.105(I)(1). “A request
for an order under [MCR 2.105(I)] 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.” MCR 2.105(I)(2).

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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.
The Court is not yet persuaded that service under MCR 2.105(A)(1)-(2)
cannot reasonably be made so that substituted service is required. While Plaintiff
details reasonably diligent efforts to personally serve Defendant, Plaintiff apparently
has not attempted to serve Defendant through certified mail using the process
detailed in MCR 2.105(A)(2) (“subsection 2”). Nor has Plaintiff explained why
service under subsection 2 is not possible. In light of the fact that Plaintiff has not
attempted to serve Defendant pursuant to the process detailed in subsection 2, the
Court cannot presently conclude that substituted service is necessary.
The Court does find, however, that good cause exists to allow Plaintiff
additional time to serve Defendant. The Court will therefore grant an extension of
the Summons for Defendant by 60 days. If Plaintiff is still unable to properly serve
Defendant before the Summons expires, the Court would entertain a properlysupported motion for alternative service.
Accordingly, for all the reasons stated above, IT IS HEREBY ORDERED
THAT Plaintiff’s Motion for Verification for Alternate Service is DENIED.

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IT IS FURTHER ORDERED THAT the expiration date for the Summons
for Defendant shall be extended by 60 days.
IT IS FURTHER ORDERED THAT Plaintiff shall serve Defendant with a
copy of this Order at the same time it serves Defendant with the Complaint and
Summons.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: July 10, 2018

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on July 10, 2018, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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