United States District Court, E.D. Michigan, Southern Division
TERRENCE G. BERG DISTRICT JUDGE.
REPORT AND RECOMMENDATION
K. MAJZOUB UNITED STATES MAGISTRATE JUDGE.
December 11, 2015, Plaintiffs Mark Colston and Tammie Janis
filed substantially similar pro se complaints
against Defendants Robert Liebeck, Steve Liebeck, and Chelsea
Hometown Services, alleging violations of Title VII of the
Civil Rights Act of 1964 and the Fourteenth Amendment to the
United States Constitution. (Docket no. 1; Janis v.
Liebeck, No. 15-cv-14315, docket no. 1.) In particular,
Plaintiffs allege that Defendants made racist comments to
them during a dispute regarding payment for work performed.
(Docket no. 1 at 3-4; Janis v. Liebeck, No.
15-cv-14315, docket no. 1 at 3.) Plaintiffs seek a combined
total of $12, 000, 000.00 in compensatory and punitive
damages, among other things. (Docket no. 1 at 4; Janis v.
Liebeck, No. 15-cv-14315, docket no. 1 at 3.)
the Court are Plaintiff Colston's Motions for Default
Judgment (docket nos. 32 and 47) and Plaintiffs' Motion
for Immediate Consideration for Jury Trial Based on a Default
Judgment Plaintiff Filed April 11, 2016 (docket no. 45). This
action has been referred to the undersigned for all pretrial
proceedings. (Docket no. 13.) The undersigned has reviewed
the pleadings, dispenses with oral argument on the motions
pursuant to Eastern District of Michigan Local Rule 7.1(f),
and issues this Report and Recommendation pursuant to 28
U.S.C. § 636(b)(1)(B).
reasons that follow, it is recommended that the Clerk's
Entry of Default entered against Defendant Robert Liebeck
(docket no. 22) be VACATED and that Plaintiffs' Motions
(docket nos. 32, 45, and 47) be DENIED as moot.
December 2015, the court granted Plaintiffs' requests for
service of process by the United States Marshals Service.
(Docket no. 5; Janis v. Liebeck, No. 15-cv-14315,
docket no. 5. With regard to the service of Plaintiff
Janis's complaint, the record shows that on December 17,
2015, summonses were issued for Defendants, and the U.S.
Marshals Service acknowledged receipt of the service of
process documents; the documents were subsequently sent via
certified mail. (Janis v. Liebeck, No. 15-cv-14315,
docket nos. 7-10.) Approximately one month later, on January
11, 2016, a certified mail return receipt was filed with the
court, which indicates that the documents sent to Defendant
Chelsea Hometown Services, Legal Dept., 1046 Benstein Rd.,
#105, Walled Lake, MI 48390 were returned to the sender by
the United States Postal Service (USPS). (Janis v.
Liebeck, No. 15-cv-14315, docket no. 12 at 1.) The
return receipt also indicates that Defendant Chelsea Hometown
Services' forwarding address is 47520 Avante Drive,
Wixom, MI 48393. (Id.) There is no further
documentation regarding the service of Plaintiff Janis's
complaint on the court's docket in this matter.
regard to the service of Plaintiff Colston's complaint,
the record shows that the U.S. Marshals Service acknowledged
receipt of the service of process documents and sent them to
Defendants via certified mail on January 14, 2016. (Docket
nos. 7 and 8.) On January 28, 2016, a certified mail return
receipt was received by the court, which indicates that the
documents sent to Defendant Chelsea Hometown Services at the
same Benstein Road address as stated above were not
deliverable as addressed and that the USPS was unable to
forward the documents to a new address. (Docket no. 9 at 2.)
Plaintiff Colston subsequently moved for service of his
complaint on Defendants at the current business address of
Defendant Chelsea Hometown Services, 47520 Avante Dr., Wixom,
MI 48393. (Docket no. 10.) On February 23, 2016, the Court
granted Plaintiff Colston's motion and directed the U.S.
Marshals Service to re-serve Plaintiff Colston's
complaint on Defendant Chelsea Home Services at the updated
address provided. (Docket no. 14.) The U.S. Marshals Service
acknowledged receipt of the service of process documents and
sent them via certified mail the same day. (Docket nos. 15
then, Plaintiff Colston has filed several requests for a
clerk's entry of default and a clerk's entry of
default judgment against each Defendant in this matter.
(Docket nos. 17, 20, 21, 24, 26, 28, 30, 33, 35, 37, 39, 41
and 48.) The clerk's office denied the requests with
regard to Defendants Chelsea Hometown Services and Steven
Liebeck because there is no executed return of service on
file for them. (Docket nos. 18, 34, 38, 40, and 42.) With
regard to Defendant Robert Liebeck, Plaintiff Colston
asserted in his Request for Clerk's Entry of Default that
in a March 22, 2016 telephone conversation, U.S. Marshal
“Manwell” advised him that (1) the summons and
complaint were served on Defendants on March 2, 2016; (2)
Defendant Robert Liebeck had signed for the documents; and
(3) he had the certified mail return receipt with Defendant
Robert Liebeck's signature on it in his possession.
(Docket no. 20.) The clerk's office then entered a
default against Defendant Robert Liebeck on this basis.
(Docket no. 22.) Nevertheless, all of Plaintiff Colston's
subsequent requests for a clerk's entry of default
judgment against Defendant Robert Liebeck have been denied
for failure to provide a sum certain. (Docket nos. 21, 23,
24, 25, 26, 27, 28, 29, 30, 31, 35 and 36.)
April 11, 2016, Plaintiff Colston filed a Motion for Default
Judgment against all Defendants. (Docket no. 32.) On
September 7, 2016, Plaintiffs Colston and Janis filed a
Motion for Immediate Consideration for Jury Trial Based on a
Default Judgment Plaintiff Filed April 11, 2016. (Docket no.
45.) Plaintiff Colston filed another Motion for Default
Judgment on December 6, 2016, which is substantially similar
to the motion filed in April 2016. (Docket no. 47.) These
three motions are pending before the court.
plaintiff bears the burden of showing that the defendant
against whom the plaintiff is seeking default judgment has
been properly served. Keller v. Owens, No.
07-1127-WEB, 2007 WL 2702947, at *1 (D. Kan. Sept. 14, 2007);
Evertson v. Topeka Ass'n for Retarded Citizens,
No. 05-4046-SAC, 2005 WL 2988716, at *1 (D. Kan. Oct. 11,
2005). Moreover, a court cannot enter a default against a
defendant where the defendant has not been properly served.
Maryland State Firemen's Ass'n v. Chaves,
166 F.R.D. 353 (D. Md. 1996). The Federal Rules provide that
service on an individual may be obtained pursuant to the law
of the state in which the district court is located or by
delivering a copy of the summons and of the complaint to the
individual personally, by leaving copies thereof at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides there, or
by delivering a copy of the summons and complaint to an
authorized agent. Fed.R.Civ.P. 4(e). In Michigan, the law
allows service on an individual personally or by sending a
copy of the summons and complaint by registered or ...