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Grimes v. Bessner

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

October 6, 2017

MONIQUE GRIMES, as Personal Representative of the Estate of DAMON GRIMES, Deceased, Plaintiff,
v.
TROOPER MARK BESSNER, et al ., Defendants.

          ORDER GRANTING PLAINTIFF'S EMERGENCY EX PARTE MOTION FOR ALTERNATE SERVICE OF SUMMONS AND AMENDED COMPLAINT ON TROOPER MARK BESSNER [#8]

          GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Presently before the Court is Plaintiff's Ex Parte Motion for Alternate Service of Summons and Amended Complaint on Trooper Mark Bessner Pursuant to Fed.R.Civ.P. 4(e)(1), filed on October 3, 2017. Plaintiff moves for alternate service upon Defendant, Michigan State Police Trooper Mark Bessner. Plaintiff asserts that Defendant Bessner has evaded Plaintiff's diligent attempts to officially effectuate service of process through traditional means. The Court conducted a hearing on this matter on October 6, 2017.

         II. FACTUAL BACKGROUND

         Plaintiff filed the instant 42 U.S.C. § 1983 excessive force action on August 30, 2017. Plaintiff alleges that Defendant Bessner's use of excessive force resulted in her fifteen year-old son, Damon Grimes's death on August 26, 2017. Specifically, Defendant Bessner deployed his taser directly at Damon Grimes and striking him as he was riding an ATV, which resulted in Damon Grimes being propelled into the rear end of a vehicle.

         Once the Plaintiff learned the identity of the Trooper who fired his taser at Damon Grimes, Plaintiff filed an Amended Complaint on September 20, 2017 naming Defendant Bessner, as well as the officer who was with him on the date of the incident. Plaintiff provided the Summons and Amended Complaint to the process server, a former police officer, who conducted a postal check and determined Defendant Bessner's address. He confirmed that Defendant Bessmer lives in the city identified during the postal search by speaking with reliable sources at the Michigan State Police.

         The process server went to the address provided during the postal check on September 22, 2017 at 5:35 p.m. and knocked on the door, however nobody answered the door. He noted a minivan in the driveway and left a card in the door which states “Sorry we missed you please call as soon as possible we have important legal paperwork for you.” The card also provided a contact number and business information. He returned the next day around noon, however there was no answer at the door or any vehicles in the driveway. He noted that the card he had left the previous day was gone. He went back to the home a few days later, and again there was no answer at the door or vehicles in the driveway. He left a card. The next day, the process server reported the same circumstances and noted that the card he had left the previous day. On September 29, 2017, the process server returned to the home and while there was no answer at the door, he noted that his card was gone, the minivan was in the driveway and the lights were on inside the residence. The next day, a Saturday, he arrived at the home at 8:00 a.m. and yet again nobody answered the door even though the minivan was in the driveway. The process server decided to observe the home. He knocked on the door about forty-five minutes later, and nobody answered the door. He noticed the card he left in the door the previous day had been removed. He attempted to effectuate service roughly an hour later, but again there was no answer at the door.

         Around 10:00 a.m. that day, a female arrived at the home. The process server attempted to make contact with her but she would only say “hello.” She then took the card off the door and entered the house. She declined to answer the door when the server knocked. The server made three additional attempts to serve process, but the door was never answered. He remained at the residence until roughly 4:00 p.m. The server also called multiple phone numbers associated with Defendant, his wife and his suspected attorney.[1] He has not received any response to his calls.

         III. LAW & ANALYSIS

         Plaintiff asserts that Defendant Bessner is intentionally evading service. She requests that the Court permit alternate service by posting the Summons and Amended Complaint on the front door of his residence.

         Federal Rule of Civil Procedure 4(e)(1) governs service on an individual within a judicial district of the United States. The rule states that:

Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is ...

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