United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING IN PART AND GRANTING IN
PART DEFENDANT'S RULE 12(B)(5) MOTION AND DENYING WITHOUT
PREJUDICE DEFENDANT'S RULE 12(B)(6) MOTION
F. Cox United States District Judge
a Fair Debt Collections Practices Act ("FDCPA")
case. The matter is currently before the Court on
Defendant's Motion to Dismiss, pursuant to Federal Rules
of Civil Procedure 12(b)(5) and 12(b)(6). Defendant's
motion has been fully briefed on both grounds for dismissal.
The Court finds that oral argument would not significantly
aid in the decisional process and therefore orders that the
instant motion will be decided upon the briefs. See
E.D. Mich. LR 7.1(f).
the Court agrees that Plaintiff has failed to effect proper
service on Defendant, the Court shall GRANT IN PART AND DENY
IN PART Defendant's Rule 12(b)(5) motion. The Court shall
grant the motion to the extent that the Court agrees that
proper service has not been effected here. The Court denies
the motion to the extent that it seeks dismissal of
Plaintiffs claims. Instead, the Court shall afford Plaintiff
additional time to effect proper service on Defendant.
Moreover, because the Court may not exercise power over a
defendant absent proper service of process, the Court shall
DENY WITHOUT PREJUDICE Defendant's Rule 12(b)(6) motion.
Defendant may refile its motion if proper service is
Ryan McInerney (“Plaintiff”) filed this FDCPA
action on January 5, 2017. (Doc. # 1). Plaintiff named
Defendant Roosen Varchetti & Olivier, PLLC
(“Defendant”) as the only defendant in this case.
Plaintiff alleges that Defendant artificially inflated the
amount of debt due, as a deceptive practice, in violation of
the FDCPA. Plaintiff also alleges that Defendant violated the
FDCPA by filing its collection suit against Plaintiff in
Allen Park, Michigan, despite knowing that Plaintiff resided
in Lincoln Park, Michigan.
filed a Certificate of Service on January 9, 2017. (Doc. #
4). On January 27, 2017, Defendant filed a Motion to Dismiss
pursuant to Rules 12(b)(5) and 12(b)(6). (Doc. # 5,
Def.'s Mo.). The motion was fully briefed by the parties.
(Doc. # 6, Pl.'s Resp.; Doc. # 8, Def.'s Reply). On
May 10, 2017, the Court entered an Order regarding
Defendant's motion. (Doc. # 10). The Order advised that
should the Court reach Defendant's motion as it pertains
to Rule 12(b)(6), it shall treat it as one for summary
judgment. The parties were permitted to file supplemental
briefs in the event necessary.
Factual Background As It Pertains To Service Of
Certificate of Service states that, on January 6, 2017, the
summons and a copy of the complaint were delivered by
personal service to 39541 Garfield, Clinton Township, MI
48038, which is Defendant's address. (Doc. # 4). The
Certificate further indicates that the server “left
copys [sic] with office manag [sic].” The Certificate
is signed by the process server.
support of its motion to dismiss, Defendant has filed the
affidavits of Nancy Stonehouse (Defendant's paralegal)
and Paul E. Varchetti (Defendant's registered agent).
(Ex. A and B to Defendant's Mo.). In her affidavit,
Stonehouse states that she was present at the office on the
date that the process server attempted to serve Defendant.
(Ex. A. to Def.'s Mo.). According to Stonehouse, the
server tried to leave a copy of the summons and complaint
with the receptionist after being informed that Varchetti was
out of town. (Id. at ¶ 4). Stonehouse advised
that no one at the office was authorized to accept service
other than Varchetti. (Id.). Despite this, the
server left the summons and copy of complaint with
affidavit confirms that Paul E. Varchetti is the registered
agent of Defendant and that he has never been served with
process in this case. (Ex. B to Def.'s Mo. at
¶¶ 1, 2). Varchetti further states that neither
Stonehouse nor the office receptionist are authorized to
accept service for Defendant or Varchetti in his capacity as
registered agent. (Id. at ¶ 3).
to Plaintiff's response is an email chain between
Plaintiff's counsel and Defendant's counsel. (Ex. 2
to Pl.'s Resp.). On January 26, 2017, Defendant's
counsel informed Plaintiff's counsel that the process
server did not achieve service and asked Plaintiff's
counsel to submit a Rule 4 waiver. Plaintiff's counsel
responded that the server left a copy at the registered
agent's office with an individual who identified herself
as the office manager. Plaintiff did not submit a waiver.
A. Motion to Dismiss for Insufficient Service ...