United States District Court, E.D. Michigan, Southern Division
Michael Garrison, Plaintiff, Pro Se.
Equifax Info. Solutions, Defendant, represented by Jordan S.
Bolton, Clark Hill.
TransUnion, LLC, Defendant, represented by Brian A.
Nettleingham, Maddin, Hauser,, Debra A. Miller, Schuckit &
Associates, P.C. & Laura K. Rang, Schuckit & Associates,
Experian, Defendant, represented by Sidney L. Frank, Williams
Williams Rattner & Plunkett, P.C. & Tamara E. Fraser,
Williams Williams Rattner & Plunkett, P.C..
Verizon Wireless, Defendant, represented by Jeffrey J. Quas.
REPORT AND RECOMMENDATION TO DENY WITHOUT PREJUDICE
DEFENDANT EQUIFAX INFORMATION SERVICES LLC'S MOTION TO
R. GRAND, Magistrate Judge.
August 11, 2015, pro se Plaintiff Michael Garrison
filed a complaint against Defendant Equifax Information
Services LLC ("Equifax") (and a slew of other
Defendants) alleging violations of the Fair Credit Reporting
Act, 15 U.S.C. Â§ 1681, et seq. (the
"FCRA") and intentional infliction of emotional
distress under Michigan state law. . Garrison's
Application to Proceed in District Court Without Prepaying
Fees or Costs (or In Forma Pauperis ) was approved
by District Judge Terrence G. Berg on August 31, 2015. .
On April 28, 2016, Judge Berg referred this case to the
undersigned for all pretrial purposes. . Before the Court
is Equifax's Motion to Dismiss. . Garrison filed a
response , and Equifax filed a reply . Having
reviewed the pleadings and other papers on file, the Court
finds that the facts and legal issues are adequately
presented in the parties' briefs and on the record, and
it declines to order a hearing at this time.
motion, Equifax requests that the Court dismiss
Garrison's complaint because Garrison "did not
effectuate proper service of process under either the Federal
Rules of Civil Procedure or rules for service in
Michigan." [15 at 1]. Equifax argues that Garrison
previously filed three lawsuits against Equifax, so Garrison
"is aware of the proper method to serve Equifax."
[15 at 1, 3-4].
requirements for securing proper service are found in Rule 4.
Fed.R.Civ.P. 4(c)(1) provides that "[t]he plaintiff is
responsible for having the summons and complaint served"
within ninety days after filing the complaint, as required by
Rule 4(m). Rule 4(c)(3) provides that "[a]t
the plaintiff's request, the court may order that service
be made by a United States marshal or deputy marshal or by a
person specially appointed by the court." The court must
order this if both the plaintiff requests it and the
plaintiff is authorized to proceed in forma
pauperis. [ Id. ].
the appropriate method of service, Rule 4(h)(1) provides that
a domestic corporation must be served by either following the
law of the state where the district court is located or where
service is made, as required by Rule 4(e)(1); or 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 by law to receive service of
process." Furthermore, "if the agent is one
authorized by statute and the statute so requires, " a
copy of the summons and complaint must also be mailed to the
defendant. Fed.R.Civ.P. 4(h)(1). Michigan state law provides
that a domestic corporation that is doing business may be
served by: (1) serving the summons and complaint on an
officer or the resident agent; or (2) serving the summons and
complaint on a director, trustee, or person in charge of an
office or business establishment of the corporation, and
sending the summons and complaint by registered mail,
addressed to the principal office of the corporation. M.C.R.
2.105(D). If the corporation has "failed to appoint and
maintain a resident agent or to file a certificate of that
appointment, as required by law, " then the summons and
complaint should be sent by registered mail to the
corporation or to an appropriate corporation officer, and to
the Corporate Division of the Michigan Bureau of Commercial
Services. [ Id. ].
attached to its motion a copy of the envelope Garrison used
to mail it a copy of the summons and complaint. [15, Ex. A].
The envelope shows that it was sent via first-class mail to
"Equifax Info. Solutions" at P.O. Box 740256,
Atlanta, GA 30348. [ Id. ]. In doing so, Garrison
did not comply with Rule 4. On the envelope he mailed to
Equifax, Garrison did not name an officer or agent authorized
to receive service of process. Garrison's first-class
mailing did not comply with Michigan state law either. In
addition to not naming an officer or resident agent, the
envelope did not name a director, trustee, or person in
charge of an Equifax office or business establishment. And
Garrison did not use registered mail to send Equifax the
summons and complaint to its principal office. In the
likelihood that Equifax had not appointed a resident agent or
filed its certificate of appointment, Garrison also did not
take the steps necessary to serve Equifax properly: Garrison
did not send the summons and complaint by registered mail to
Equifax or to the appropriate corporation officer, and he did
not send the summons and complaint to the Corporate Division
of the Michigan Bureau of Commercial Services.
4(l)(1) requires that proof of service be made to the court
unless service is waived. The server's affidavit
constitutes proof of service, except where service was
carried out by a U.S. Marshal or deputy marshal. [
Id. ]. Here, Equifax has not waived service. And
service was not carried out by a U.S. Marshal or deputy
marshal because Garrison did not request such service. .
Also, the server's affidavit has not been provided as
proof of service. Furthermore, in his response to
Equifax's motion to dismiss, Garrison failed to include
evidence of proper service. . Instead of showing the
Court that he had effectuated proper service on Equifax,
Garrison simply attacks Equifax's arguments. [
Id. ]. Interestingly, at no point does Garrison
argue in his response that he did, in fact, execute proper
service on Equifax. [ Id. ].
the Court finds Garrison's arguments to be without merit.
. Garrison alleges that Equifax did not describe
"with particularity" how the service of process
failed to comply with the procedural requirements. [24 at 3].
But in its motion to dismiss, after laying out the procedural
requirements, Equifax explains that Garrison "attempted
service of process by placing a copy of the Complaint and
summons in the United States mail to a post office box in
Atlanta, GA." [15 at 12]. As noted above, Equifax
included with its motion a copy of the envelope it received
from Garrison, which corroborates its assertion. [15, Ex. A].
The Court finds that Equifax's motion ...