Allstate Insurance Company et al v. Utica Physical Therapy Inc. et al

Filing 69

OPINION AND ORDER Denying Defendants' 43 Motion to Dismiss for Improper Service. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Allstate Insurance Company, et
al.,
Case No. 17-cv-13823
Plaintiffs,
v.

Judith E. Levy
United States District Judge

Utica Physical Therapy Inc., et al.,

Mag. Judge R. Steven Whalen

Defendants.
________________________________/
OPINION AND ORDER DENYING DEFENDANTS’ STEFAN
GLOWACKI, M.D., AND STEFAN GLOWACKI, M.D., P.C.
MOTION TO DISMISS FOR IMPROPER SERVICE [43]
This case comes before the Court on defendants’ Stefan Glowacki,
M.D. and Stefan Glowacki, M.D., P.C. (“Glowacki defendants”) motion to
dismiss for lack of proper service.1 (Dkt. 43.) Finding the facts and legal
arguments sufficiently presented in the parties’ briefs and accompanying

Defendants’ motion states simply that they are moving for relief under Fed. R. Civ.
P. 12(b). Plaintiffs’ response argues against dismissal under both Fed. R. Civ. P.
12(b)(2) – lack of personal jurisdiction – and 12(b)(5) – improper service of process. In
their reply, defendants clarify that they are arguing that the court lacks personal
jurisdiction only because plaintiffs did not properly serve them. (Dkt. 56 at 8.)
Accordingly, the Court will not analyze personal jurisdiction under Fed. R. Civ. P.
12(b)(2).
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materials, the Court is dispensing with oral argument pursuant to
Eastern District of Michigan Local Rule 7.1(f). For the reasons set forth
more fully below, defendants’ motion to dismiss is DENIED.
I.

Background
Plaintiffs filed this case – a multi-claim action alleging multiple

defendants engaged in a coordinated scheme to defraud plaintiffs
through the submission of false documentation in support of insurance
claims – on November 28, 2017. (Dkt. 1.) Plaintiffs began attempting
service on the Glowacki defendants on November 30, 2017. (Dkt. 54 at
12.) Plaintiffs first identified an address in Grosse Pointe, Michigan – 16
Sycamore Lane, Grosse Pointe, Michigan 48230 – as Glowacki’s address.
(Id., citing Dkt. 54-2 at 3.) Process server Shadow Investigations, Inc.
attempted service three times at the Grosse Pointe address, but they
were unsuccessful each time. (Dkt. 54-2 at 3.) The process server advised
plaintiffs that it was possible that the Grosse Pointe residence was
vacant because there was a lock box on the door. (Id.)
Plaintiffs conducted a public records search and identified an
alternate address for Glowacki at 592 Craig Road, Manapalan, NJ 07726.
(Id. at 4.) Plaintiffs retained Guaranteed Subpoena Service, Inc. to
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attempt service on the Glowacki defendants at the New Jersey address.
(Id.) Mr. Andrew Pawelek was the process server assigned to effect
service on the Glowacki defendants. (Dkt. 54-3 at 3.)
According to Pawelek’s affidavit, he unsuccessfully attempted
service at 592 Craig Road on December 21, 2017 and December 22, 2017.
(Id.) On December 23, 2017, Pawelek attempted service for the third
time. (Id.) During this attempt, Ms. Dorotka Zielinski opened the door
and spoke with Pawelek. (Id.) Pawelek concluded, based on Zielinski’s
accent, that she spoke Polish. (Id.) A Polish speaker himself, Pawelek
affirms that he spoke with Zielinski in both English and Polish. (Id.) The
parties offer conflicting accounts of the content of their conversation.
Pawelek asserts he asked Zielinski if Glowacki resided at the house,
and she stated Glowacki stayed there but he was in Poland at the
moment. (Dkt. 54-3 at 4.) Pawelek says he asked Zielinski if Glowacki
was going to return to New Jersey, and she confirmed that he was. (Id.
at 5.) Finally, Pawelek asserts that “Zielinski never said that Glowacki
moved to Poland.” (Id.) He confirms he “would have noted if Ms. Zielinski
had said that Glowacki moved to Poland, because [he] would have known
at that point that service would have been improper at this location.” (Id.)
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Conversely, in her affidavit, Zielinski states she “told [Pawelek] no, that
Dr. Glowacki had moved in late September 2017 to Warsaw, Poland.”
(Dkt. 43-1 at 6.) It is undisputed that at the conclusion of the
conversation, Pawelek left the summonses and complaints with Zielinski.
(Dkt. 43-1 at 6; Dkt. 54-3 at 4.)
After taking the documents, Zielinski states she called Glowacki’s
former officer manager, Ms. Margaret Musialowski, who instructed
Zielinski to “send her the box of papers, and she would deliver them to
the proper persons.” (Dkt. 43-1 at 6.) According to defendants’ counsel,
Zielinski sent the documents to Musialowski; Musialowski delivered the
documents to attorney Lee Roy H. Temrowski, Jr.; and Temrowski
delivered the documents as a referral to defendants’ counsel. 2 (Dkt. 43 at
5.) Counsel received the documents in “late January 2018.” (Id.)
On December 28, 2017, Pawelek signed a return of service for each
defendant, confirming that he left the relevant documents “at the
defendant’s dwelling house or usual place of abode with a person of

The Court notes that in his first correspondence with plaintiffs’ counsel, defendants’
counsel stated that he was provided the documents from “Margaret, Dr. Glowacki’s
former office manager.” (Dkt. 43-1 at 9.) In a later email, defendants’ counsel clarified
that he was given the lawsuit by a “referring colleague” who had received them from
the former office manager. (Dkt. 43-1 at 12.)

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suitable age and discretion then residing therein.” (Dkt. 43-1 at 19, 21.)
The return of service indicated that the documents were left with Dorota
Zielinski, Glowacki’s neice. (Id.) Plaintiffs filed the certificates of
summons returned executed for the Glowacki defendants on January 9,
2018. (Dkt. 15 and Dkt. 16.) Answers for each were due on January 16,
2018. (Id.)
On February 8, 2018, defendants’ counsel3 drafted a letter to
plaintiffs’ counsel, claiming that “following the death of his wife, Dr.
Glowacki retired and moved from Michigan to a residence in Poland, not
yet known to the undersigned.” (Dkt. 43-1 at 9.) He asserted his belief
that plaintiffs’ service on Zielinski was ineffective given Glowacki’s
relocation to Poland. (Id.) The letter was postmarked February 12, 2018,
(Dkt. 54-8 at 2) and plaintiffs’ counsel’s office stamped it received on
February 15, 2018. (Dkt. 54-8 at 3.)
On February 12, 2018, plaintiffs requested a clerk’s entry of default
against six defendants in the case, including the Glowacki defendants.

At the time the letter was drafted, defendants’ counsel had not yet entered an
appearance on behalf of the Glowacki defendants. He clarified as much in the
correspondence, stating “[a]t this juncture, I have no authority to enter an appearance
in this matter, nor accept service on behalf of [Glowacki defendants].” (Dkt. 43-1 at
10.) Counsel entered a special appearance, for the limited purpose of contesting
jurisdiction, on February 28, 2018. (Dkt. 42.)
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(Dkts. 19–24.) The clerk entered defaults for those six defendants the
same day. (Dkts. 25–30.)
On February 15, 2018, plaintiffs’ attorney, Ms. Jacquelyn
McEttrick, sent an email to defendants’ counsel, indicating that her office
had just received his February 8, 2018 letter and informing him that
plaintiffs had defaulted the Glowacki defendants on February 12, 2018.
(Dkt. 54-7.) McEttrick stated that plaintiffs agreed “not to seek default
judgment against [Glowacki defendants] for at least another week as we
discuss this matter.” She affirmed plaintiffs believed they had
successfully served the Glowacki defendants, particularly in light of the
Glowacki defendants’ apparent notice of the complaint, as evidenced by
defendants’ counsel’s communication regarding the complaint against
them. (Id.)
On February 19, 2018, defendants’ counsel sent an email response,
confirming that he would be “happy to discuss this matter, once I speak
to Dr. Glowacki.”4 (Dkt. 54-7 at 5.) He emphasized that he had not yet

Somewhat inexplicably, defendants’ counsel asserts it appeared “as if [plaintiffs]
received [his] letter and promptly entered Dr. Glowacki’s default.” (Dkt. 54-7 at 5.)
Given the letter was postmarked February 12, 2018, and McEttrick’s February 15,
2018 email clearly stated it had been received by the firm earlier that same day, the
Court notes this comment only to acknowledge its implausibility. Much of the
subsequent email correspondence between McEttrick and defendants’ counsel focuses

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spoken to Glowacki, and that he was not yet representing him. (Id.) He
also stated that it would “likely take [him] more than a week to contact
Dr. Glowacki and prepare an Answer to the extensive Complaint
[plaintiffs] filed against him.” (Id. (emphasis in original).) A subsequent
email on February 19, 2018 confirmed “I will be contacting Dr. Glowacki
to obtain authority, and to prepare an Answer and other pleadings in this
lawsuit, and I appreciate any forbearance in entering Default Judgment.
I hope to enter an Appearance very soon, and to thereby automatically
receive pleadings in the matter.” (Dkt. 54-7 at 3.) Defendants’ counsel
also requested a copy of the Proof of Service on the Glowacki defendants,
which McEttrick provided shortly thereafter. (Id. at 2–3.) On February
23, 2018, McEttrick sent a follow-up email, inquiring whether
defendants’ counsel would be entering an appearance and confirming
that plaintiffs were “happy to stipulate to set aside the defaults and give
[defendants] adequate time to answer the complaint.” (Dkt. 54-7 at 2.) No
subsequent email traffic is contained within the record.

on this accusation. The Court is satisfied that the defaults were entered prior to
plaintiffs having any knowledge of defendants’ counsel or his assertions that
Glowacki had relocated to Poland.

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On February 28, 2018, defendants’ counsel entered a special
appearance on behalf of the Glowacki defendants for the limited purpose
of contesting the Court’s jurisdiction. (Dkt. 42.) The same day, defendants
filed the present motion to dismiss. (Dkt. 43.) Since that date, plaintiffs
have requested clerk’s entries of default for four additional defendants
(Dkts. 45, 46, 47, 48), and moved for a default judgment against eight of
the defendants against whom a clerk’s entry of default has been entered
(Dkts. 59 – 66.)
After learning of Dr. Glowacki’s purported retirement and
relocation to Poland, plaintiffs assert that they sent a copy of the
summons and complaint to process server Shadow Investigations, Inc. to
be served on defendant Glowacki, M.D., P.C. at the address on file with
the Michigan Department of Licensing and Regulatory Affairs (LARA).
(Dkt. 54-2 at 4; Dkt. 43-1 at 1.) The process server attempted service, but
found the suite locked. (Dkt. 54-2 at 5.) According to plaintiffs, a person
in a neighboring suite advised the process server that the office for
Glowacki, M.D., P.C. had been vacated. Because the registered address
was vacant, and in accordance with Mich. Ct. R. 2.105(D)(4), plaintiffs
sent a copy of the summons and complaint, via registered mail, to
8

Glowacki, M.D., P.C. and the Michigan Corporation Division.5 (Dkt. 54 at
23.)
Finally, on March 2, 2018 plaintiffs hired an additional
independent process server to conduct a skiptrace on Glowacki. (Dkt. 542 at 5.) The skiptrace confirmed that, as of March 5, 2018, the
Manalapan, New Jersey residence was the best mailing address for
Glowacki. (Dkt. 54-2 at 9.)
II.

Legal Standard
“In the absence of service of process (or waiver of service by

defendant) a court ordinarily may not exercise power over a party the
complaint names as defendant.” Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350 (1999). Fed. R. Civ. P. 4(e) governs the
service of a summons and complaint in a federal civil suit. Under the
federal rules, a party may effectuate service by doing any of the following:
(A) delivering a copy of the summons and of the complaint to
the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion
who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
5

Plaintiffs offer no evidence of this attempt to serve Glowacki, M.D., P.C.

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Fed. R. Civ. P. 4(e)(2).
A defendant may challenge the sufficiency of service of process
through a motion filed pursuant to Fed. R. Civ. P. 12(b)(5). Once a
defendant challenges the sufficiency of service, the plaintiff bears the
burden of establishing it was proper. See Friedman v. Estate of Presser,
929 F.2d 1151, 1157 (6th Cir. 1991) (citing Norlock v. City of Garland,
768 F.2d 654, 656 (5th Cir. 1985)).
Actual notice of a pending action does not cure a technically
defective service of process. Friedman, 929 F.2d at 1156. However, the
rules governing service “should be construed liberally, to effectuate
service where actual notice of suit has been received by the defendant.”
Rovinski v. Rowe, 131 F.2d 687, 689 (6th Cir. 1942).
III. Analysis
As a preliminary matter, defendants failed, as required by Local
Rule 7.1(a)(1), to seek concurrence with plaintiffs’ counsel prior to filing
the present motion. Defendants argue “[t]he exchange of emails
appended to [defendants’] motion as exhibits, certainly constitutes the
necessary attempts at concurrence, even if [d]efendants’ motion lacks a
statement of concurrence pursuant to the above-cited rule.” (Dkt. 56 at
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3.) The email traffic details a dispute regarding the timing of the receipt
of the letter alerting plaintiffs’ counsel of the possibility that Dr.
Glowacki had relocated to Poland (Dkt. 54-7), multiple offers from
plaintiffs’ counsel to delay moving for a default judgment and/or set aside
the defaults (Id. at 2, 3, 4, 6) and multiple indications from defendants’
counsel that he anticipated preparing and filing an answer to the
complaint. (Id. at 3, 5.) There is no mention of defendants’ intent to file a
motion to dismiss for improper service. It is clear, however, that plaintiffs
believed they had successfully served defendants (Dkt. 54-7 at 6) and
were anticipating moving forward with the suit on the merits. (Id. at 2.)
In the interest of judicial efficiency, the Court will not strike the motion
under Rule 7.1 and will adjudicate the fully-briefed dispute regarding the
service of process.
At issue in this case is whether the service of process to Dorotka
Zielinski, Dr. Glowacki’s niece, at her home in Manalapan, New Jersey,
was sufficient to effectuate service under Fed. R. Civ. P. 4(e) –
specifically, whether service was made “at the individual’s dwelling or
usual place of abode with someone of suitable age and discretion who
resides there.” It is undisputed that Zielinski is of suitable age and that
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she resides at the home at which process was served. The sole question
is whether the New Jersey residence qualifies as Dr. Glowacki’s “dwelling
or usual place of abode.”
Plaintiffs contend that, after multiple unsuccessful attempts to
serve Dr. Glowacki at a residence in Grosse Pointe, Michigan, “diligent
searches identified an alternate address for Glowacki” in Manalapan,
New Jersey. (Dkt. 54-2 at 4.) Plaintiffs hired a bilingual process server to
serve the documents, and, after a “full[] and substantive[]” conversation
with Zielinski, the process server left the required documents with her.
(Dkt. 54-3 at 4.) Defendants contend that Zielinski told the process server
that Dr. Glowacki had moved in late September, 2017 to Warsaw, Poland
and that he had never resided with her in Manalapan. (Dkt. 43-1.) In his
affidavit, the process server stated he was “well aware of the statutes and
court rules affecting proper service” and that he “would have noted if
Zielinski had said that Glowacki moved to Poland, because [he] would
have known at that point service would have been improper.” (Id.)

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Defendants assert, but provide no evidence, that following the
death of his wife6 Dr. Glowacki retired from medical practice, closed his
practice, and relocated his residence to Warsaw, Poland. But plaintiffs
submitted records that call into question some of defendants’ assertions.
First, plaintiffs submitted documentation from LARA indicating that
Glowacki incorporated a new medical practice – New Horizon Pain
Management, P.C., – on July 14, 2017.7 Second, it is undisputed that no
certificate of dissolution was filed for Stefan Glowacki, M.D., P.C., and
that 42730 Van Dyke Avenue, Suite 107, Sterling Heights, Michigan
48314 is the address on file with LARA for the corporation. (Dkt. 43-1 at
2.) Finally, plaintiffs submitted the results of their skiptrace, which
indicated that beginning in September 2017 and continuing through the
date of the search (March 5, 2018), the best address at which to send mail
to Glowacki was 592 Craig Road in Manalapan, New Jersey. (Dkt. 54-2
at 9.)

Defendants’ motion states that Glowacki’s wife died on April 1, 2017. (Dkt. 43 at 3.)
Plaintiffs submitted a copy of her obituary, which indicates she died on March 1, 2017.
(Dkt. 54-10 at 2.)
7 In the articles of incorporation, Glowacki is listed as the resident agent of the new
corporation. (Dkt. 54-11 at 3.) He incorporated the business with Kristal Tooma, the
daughter of Mukhlis Tooma and Lolo Tooma, two of the co-defendants in the present
lawsuit. (Id. at 4, Dkt 54 at 19.)
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In the Sixth Circuit, the rules governing service of process “should
be construed liberally, to effectuate service where actual notice of suit
has been received by the defendant.” Rovinski v. Rowe, 131 F.2d 687, 689
(6th Cir. 1942). In Rovinski, the court upheld a finding that service was
proper when it was effectuated by personally serving the defendant’s
mother at her home in Menominee County, Michigan. It so held over the
objection of the defendant, who argued that he returned only occasionally
to visit her, and – despite considering his childhood residence to be
“home” – his usual place of abode and dwelling place had been
continuously in Minnesota for several years. Id. at 687.
Defendants argue that Rovinski would be applicable only if
Glowacki “had actual notice of the instant lawsuit at the time of their
claimed service.” (Dkt. 56 at 6.) There is no indication, however, in
Rovinski that the defendant had actual notice of the lawsuit at the time
his mother was served with process. The district court’s reasoning –
which was affirmed by the Sixth Circuit – was simply that at the time
the court was considering the defendant’s motion to dismiss, “actual
notice of the suit has been received by the defendant.” Rovinski, 131 F.2d
at 689.
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Either way, actual knowledge of a lawsuit does not cure a
technically defective service of process. Friedman, 929 F.2d at 1156
(holding that service via certified mail, when the defendants did not
return the acknowledgement form as required, was not proper despite
defendants’ actual knowledge of the suit). As defendants rightly point out
in their reply, the Sixth Circuit’s holding in Rovinski was not intended to
“liberalize the rule to effectuate service, but merely to find what was a
usual place of abode.” (Dkt. 56 at 6.) Rovinski is precisely on point insofar
as the Court is being called upon to determine whether Zielinski’s home
is a dwelling place or usual place of abode for Dr. Glowacki. The fact that
the personal service of the summons and complaint to Zielinski at the
address identified by plaintiffs’ skiptrace did result in Glowacki receiving
actual notice of the complaint is relevant to the Court’s determination.
To argue that Zielinski’s home should not be considered Dr.
Glowacki’s dwelling or place of abode, defendants claim that at the time
process was served he “did not live in Manalapan, New Jersey, but in
Grosse Pointe, Michigan.”8 (Dkt. 56 at 7 (emphasis in original).)

Given the underlying contention that Glowacki is in Poland and therefore has not
been properly served, defendants’ argument is perplexing. Defendants seem to be
arguing that the Court should consider the skiptrace address in New Jersey to be
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15

Defendants emphasize that, at the time of service, he owned property in
Michigan and registered his vehicles in Michigan. (Id.) Defendants also
argue that “[t]here is utterly no proof he intended to move to New Jersey
. . . – i.e., procurement of a New Jersey driver’s license, or his mailing
address, etc.” (Id. (emphasis added).) The skiptrace documentation,
however, is clear that – beginning in September 2017, and continuing
through at least March 5, 2018 – the address in Manalapan, New Jersey
is the “best address to mail” for Glowacki. (Dkt. 54-2 at 9.) There is,
indeed, proof provided by plaintiffs – as defined by defendants
themselves – that Glowacki had moved to New Jersey prior to the service
of process.
In addition, the Court is presented with the competing affidavits of
Pawelek (Dkt. 54-3) and Zielinski (Dkt 43-1). In light of the usual
practices of process servers, Pawelek’s affidavit – particularly his
confirmation that if Zielinski stated Glowacki had moved to Poland, he
never would have served the documents – is compelling.

unreliable not because Glowacki had moved overseas, but instead because he
continued to live in Grosse Pointe, Michigan.

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Given the Sixth Circuit’s affirmation that rules regarding service of
process, and in particular, a determination regarding a defendant’s usual
place of abode, should be construed liberally when actual knowledge of
the suit has been received by defendant, plaintiffs have carried their
burden to demonstrate that service on Zielisnki was procedurally proper
in this case. Therefore, the Glowacki defendants have been properly
served in accordance with Fed. R. Civ. P. 4(e).
IV.

Conclusion

Accordingly, defendants’ motion to dismiss for improper service of
process is DENIED. (Dkt. 43.) The defaults entered against Stefan
Glowaki, M.D. (Dkt. 29) and Stefan Glowacki, M.D., P.C. (Dkt. 30) are
SET ASIDE. Unless otherwise stipulated by the parties, defendants have
14 days from the entry of this order to file an answer to plaintiffs’
complaint.
IT IS SO ORDERED.
Dated: June 19, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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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 June 19, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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