Moreland v. Dorsey Thornton and Associates LLC

Filing 7

ORDER signed by Judge J P Stadtmueller on 12/29/10 granting 5 plaintiff's motion for an order for alternative service and motion for an extension of time to serve defendant as follows: plaintiff shall effectuate service through publication for a term of once a week for 3 consecutive weeks in a newspaper in Fulton County, Georgia; plaintiff shall mail to defendant a copy of the summons and complaint at the time or immediately prior to the first publication; and plaintiff's time for service shall be extended to 3/6/11. (cc: all counsel) (nm)

M o r e l a n d v. Dorsey Thornton and Associates LLC

Doc. 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ T O N Y MORELAND, P l a i n t if f , v. D O R S E Y THORNTON and ASSOCIATES LLC, D e fe n d a n t. ____________________________________________ Case No. 10-CV-867

ORDER
B e fo re the court are plaintiff's motion to approve alternative service pursuant to Federal Rule of Civil Procedure 4(e)(1), and plaintiff's motion for extension of time t o serve the defendant pursuant to Federal Rule of Civil Procedure 4(m). (Docket # 5 ). For the reasons stated below, the motions are granted.

BACKGROUND
O n October 4, 2010, plaintiff filed this action against defendant Dorsey T h o rn to n and Associates LLC ("Dorsey Thornton") claiming that the defendant vio la te d the Fair Debt Collection Practices Act, relative to its attempts to collect a d e b t allegedly owed by plaintiff. As set forth in the materials attached to his motion, in c lu d in g the affidavits of his process servers, plaintiff has made several attempts to s e rve the summons and complaint on Dorsey Thornton. First, plaintiff attempted to e ffe c tu a te service on four separate occasions at Dorsey Thornton's principal office a d d re s s and address of its registered agent in Union City, Georgia. (Pl.'s Br. in S u p p . 2) (Docket #6). Those attempts failed. The process server left a note on her

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firs t attempt, and that note was no longer at the address when she returned for her s e c o n d attempt at service. The process server avers that the address appeared o c c u p ie d , yet no one answered the door. (Pl.'s Br. in Supp. Ex. B [Aff.] 1) (Docket # 6 -2 ). Plaintiff then attempted to obtain an alternative address at which he could s e rve defendant, ultimately discovering that at some time in October 2010 the d e fe n d a n t had changed the address of its registered agent to an address in D o ra ville , Georgia, and its principal office address to a P.O. Box. (Pl.'s Br. in Supp. E x . C). Plaintiff attempted to serve defendant at the new address of the registered a g e n t on November 18, 2010. (Pl.'s Br. in Supp. Ex. D [Aff.] 1) (Docket #6-4). The p ro c e s s server avers that he spoke with defendant's receptionist and asked for the re g is te re d agent or office manager. (Pl.'s Br. in Supp. Ex. D [Aff.] 2). The

re c e p tio n is t went to the back of the office and later returned, informing the process s e rve r that if he did not leave, the police would be called. (Id.). The police arrived b u t would not assist the process server in effectuating service. (Id.). Plaintiff

c o n c lu d e s that defendant is evading service and requests that the court approve an a lte rn a tiv e method of service as well as grant the plaintiff an extension of time in w h ich to effectuate service. DISCUSSION A s the Seventh Circuit has noted, "[a] district court may not exercise personal ju ris d ictio n over a defendant unless the defendant has been properly served with p ro c e s s ." United States v. Ligas, 549 F.3d 497, 500 (7th Cir. 2008). The Seventh C irc u it further reminded district courts that "the service requirement is not satisfied -2-

m e re ly because the defendant is aware that he has been named in a lawsuit or has re c e ive d a copy of the summons and the complaint." Id. That is to say, the

form a litie s of service of process under Rule 4 of the Federal Rules of Civil Procedure m u s t be observed. T h e Seventh Circuit has also stated that "the preferred approach" to service "is for the plaintiff to mail the defendant a copy of the complaint and summons and o b tain a waiver of personal service from the defendant under Rule 4(d)." Id. at 5000 1 . It does not appear that plaintiff has attempted to follow "the preferred approach," a s plaintiff only asserts he has failed on numerous occasions in effectuating service, n o t in obtaining a waiver. However, this is a preferred approach, not an obligatory o n e . Even if plaintiff had followed the preferred approach, plaintiff's account of the fa c ts demonstrates that any attempt at obtaining a waiver would have likely been m e t with the same results. In situations such as this one, where a defendant c o r p o r a tio n or association does not waive service and no federal statute otherwise s u p p lie s a method for service, then Rule 4(h)'s list of methods is exclusive. These a p p ro ve d methods include the methods listed in Rule 4(e) for serving an individual: p e rs o n a l service (Fed. R. Civ. P. 4(e)(2)(A)); leaving a copy of the summons and c o m p la in t at the defendant's "usual place of abode" with a person of suitable age w h o resides there (Fed. R. Civ. P. 4(e)(2)(B)); delivering a copy of the complaint and s u m m o n s to an agent authorized to accept service (Fed. R. Civ. P. 4(e)(2)(C)); or a n y other manner of serving process permitted by the law of the state where the d is tric t court sits (Fed. R. Civ. P. 4(e)(1)). Federal Rule of Civil Procedure 4(h)(1)(B) -3-

a ls o allows service by delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or law to receive service. Here, having exhausted other methods of service, plaintiff has invoked Federal R u le of Civil Procedure 4(h)(1)(A) and thereby Rule 4(e)(1) to request an order p e rm ittin g service by an alternative method. As previously noted, Rule 4(e)(1) p ro vid e s that service of a summons and complaint may be effected "following state la w for serving a summons in an action brought in courts of general jurisdiction in the s tate where the district court is located or where service is made." See Swaim v. M o lta n Co., 73 F.3d 711, 719 (7th Cir. 1996) (explaining that in the absence of rules fo r service of process set forth in the statute giving rise to the cause of action, "s e rv ic e of process is governed by the law of the state in which the district court is lo c a t e d " ) . A c c o rd in g ly, the W is c o n s in Rules of Civil Procedure should apply in this s itu a tio n . Like federal law, in W isc o n s in , service of process on a limited liability c o m p a n y can be made pursuant to W is . Stat. 801.11(5)(a) by "personally serving the s u m m o n s upon an officer, director or managing agent of the corporation or limited lia b ility company either within or without this state. In lieu of delivering the copy of th e summons to the officer specified, the copy may be left in the office of such o ffic e r, director or managing agent with the person who is apparently in charge of the o ffic e ." Plaintiff has attempted on numerous occasions to serve defendant in the a b o ve prescribed methods. -4-

A d d itio n a lly, in W is c o n s in , if with reasonable diligence a defendant cannot be s e rve d by the means set forth above then a summons may be served upon a limited lia b ility company by publication and mailing. W is . Stat. 801.11(5)(b). The provisions re g a rd in g publication, W is . Stat. 801.11(1)(c) and W is c . Stat. Chapter 985, allow for s e rvic e of process by way of publication and mailing. Under W is. Stat. 985, plaintiff re q u e s ts this court grant an order allowing service by publication for a term of once a week for three (3) consecutive weeks in a newspaper likely to give notice to d e fe n d a n t. Because it is apparent that plaintiff has attempted unsuccessfully and w ith reasonable diligence to serve the defendant with process by the approved m e th o d s under both federal and state law, the court finds it appropriate to grant p la in tiff's motion to approve alternative service by way of publication and mailing in a c c o rd a n c e with W is c o n s in law. Therefore, given that defendant's registered agent is now located in Fulton County, Georgia, plaintiff shall effectuate service through p u b lic a tio n in a newspaper in Fulton County, Georgia, that is likely to give notice to d e fe n d a n t. Moreover, plaintiff will, in accordance with W is . Stat. 801.11(1)(c), mail to defendant a copy of the summons and complaint at the time or immediately prior to the first publication. P la in tiff also requests an extension of time to serve defendant, pursuant to F e d e ra l Rule of Civil Procedure 4(m). Rule 4(m) generally requires a plaintiff to s e rve process within 120 days, but a plaintiff may move for additional time to serve th e defendant. Ligas, 549 F.3d at 501. If the plaintiff shows good cause for his fa ilu r e to accomplish service within the designated period of time, then the district -5-

c o u rt must grant an extension. United States v. McLaughlin, 470 F.3d 698, 700 (7th C ir . 2006). If the plaintiff cannot show good cause, then the decision to grant an e xte n s io n is left to the discretion of the district court. Henderson v. United States, 5 1 7 U.S. 654, 662-63, 116 S.Ct. 1638 (1996). W h e n a plaintiff fails to serve process w ith in the period of time prescribed by the federal rules, Rule 4(m) requires the d istric t court to dismiss the complaint without prejudice. Ligas, 549 F.3d at 501. In this case, the plaintiff's time to accomplish service will expire on February 4 , 2011. Though the time for service has not yet expired, the court appreciates that p la in tiff's failure to effectuate service up to this point has been for good cause. The p la in tiff has diligently attempted on five separate occasions to accomplish service o f process, and it appears that the defendant may be engaging in conduct designed t o evade service of process. Therefore, the court shall grant plaintiff a thirty-day e xte n s io n to accomplish service by way of publication and mailing. Accordingly, IT IS THEREFORE ORDERED that plaintiff's motion for an order for a lte rn a tive service and motion for an extension of time to serve defendant (Docket # 5 ) be and the same are hereby GRANTED as follows: 1. P la in tiff shall, in accordance with W is. Stat. 801.11(1)(c) and Wisc. Stat.

C h a p te r 985, effectuate service through publication for a term of once a week for th re e (3) consecutive weeks in a newspaper in Fulton County, Georgia, that is likely to give notice to defendant.

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2.

P la in tiff shall, in accordance with W is. Stat. 801.11(1)(c), mail to

d e fe n d a n t a copy of the summons and complaint at the time or immediately prior to th e first publication. 3. F o r good cause shown, plaintiff's time for service shall be extended to

M a rc h 6, 2011. Dated at Milwaukee, W is c o n s in , this 29th day of December, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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