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McInerney v. Roosen Varchetti & Olivier, PLLC

United States District Court, E.D. Michigan, Southern Division

June 1, 2017

Ryan McInerney Plaintiff
v.
Roosen Varchetti & Olivier, PLLC, Defendant.

          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

          Sean F. Cox United States District Judge

         This is 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).

         Because 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 achieved.

         BACKGROUND

         A. Procedural Background

         Plaintiff 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.

         Plaintiff 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.

         B. Factual Background As It Pertains To Service Of Process

         Plaintiff's 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.

         In 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 Stonehouse.

         Varchetti's 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).

         Attached 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.

         ANALYSIS

          A. Motion to Dismiss for Insufficient Service ...


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