Morton v. Bank of America, N.A. et al

Filing 47

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID G. MORTON,

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Plaintiff,
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v.
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BANK OF AMERICA, N.A., et al.,
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Defendants.
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____________________________________)

Case No. 1:12-cv-511
Honorable Robert Holmes Bell

MEMORANDUM OPINION

This is a civil action brought by a pro se plaintiff. Plaintiff’s claims arise from the
foreclosure by advertisement by defendant Bank of America on real property owned by plaintiff.
Among the named defendants are Mark D. Oken, Hugh McColl, and Kathy Oriard, who are alleged
to be present or past employees of Bank of America. After the period for expiration of summonses
had expired, this court issued a notice of impending dismissal (docket # 17) informing plaintiff that
the claims against these defendants would be dismissed without prejudice under Fed. R. Civ. P.
4(m), unless plaintiff filed a verified petition setting forth reasons sufficient to avoid dismissal.
In response to the court’s notice, plaintiff filed a Verified Petition re: Service of
Process. (docket # 18). Plaintiff’s verified petition recited that all three defendants had been served
by certified mail on April 30, 2012. Plaintiff’s petition attached the return receipts (denominated
Form 3811) for each purported service by certified mail. (docket # 18-1). Purported service was
made under Michigan law, at a time when this matter was pending in the Kent County Circuit Court.

The court finds that service of process was insufficient to obtain jurisdiction over
these defendants. Michigan law does allow service of process on individuals by certified or
registered mail. MICH . CT . R. 2.105(A)(2). The rule requires, however, that delivery must be
restricted to the addressee. Id. The Michigan courts have made it clear that the requirements of Rule
2.105(A) are not matters of form, but are meant to satisfy the due-process requirements established
by the United States Supreme Court for affording a defendant actual notice and an opportunity to be
heard. See, e.g., Bullington v. Corbell, 809 N.W.2d 657, 661-62 (Mich. Ct. App. 2011).
The return receipts appended to plaintiff’s verified petition clearly demonstrate that
plaintiff did not restrict delivery to the addressees, as expressly required by Rule 2.105(A)(2).
Furthermore, none of the defendants signed the return receipt. Michigan law makes it clear that this
defect is fatal and that valid service was not made. See Bullington, 809 N.W.2d at 662.
The time to effect service of process under Rule 4(m) has long expired, and plaintiff
has not shown good cause for an extension of time. Defendants Oken, McColl and Oriard will
therefore be dismissed from this action without prejudice.

Dated: April 30, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE