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Meyer v. Timothy E Baxter & Associates, P.C.

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

April 18, 2018

RODNEY J. MEYER, Plaintiff,
v.
TIMOTHY E. BAXTER & ASSOCIATES, P.C., Defendant.

          MEMORANDUM AND ORDER FINDING PLAINTIFF'S MOTION FOR ALTERNATE SERVICE (Doc. 11) MOOT AND DENYING DEFENDANT'S MOTION TO DISMISS (Doc. 4) [1]

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I.

         This is a case under the Fair Debt Collection Practices Act (FDCPA) and its Michigan counterpart. Plaintiff Rodney J. Meyer is suing defendant Timothy E. Baxter & Associates, P.C.[2] alleging that defendant's efforts to collect on a debt violated state and federal law.

         Before the Court is defendant's motion to dismiss on the grounds of improper service and lack of standing. Also before the Court is plaintiff's motion for alternative service, and for leave to extend the time for service. Because service will be deemed effectuated, plaintiff's motion MOOT and defendant's motion is DENIED.

         II.

         Due to the technical nature of the issues, a detailed background recitation is necessary.

         On January 5, 2018, plaintiff filed the complaint. (Doc. 1). On January 8, 2018, a summons was issued for defendant. On February 13, 2018, the summons was returned as executed based on personal service. The proof of service form listed the correct address for defendant but had the defendant's name crossed as to who accepted service. (Doc. 3). According to defendant, the summons and complaint was handed to Tracey Klein at defendant's office who did not have the authority to accept service for defendant.

         On February 21, 2018, defendant filed a motion to dismiss. Defendant argues that the complaint should be dismissed because (1) service was improper, (2) plaintiff lacks standing because he filed the complaint before his bankruptcy case was closed, and (3) the complaint violates the local rules as to type size.[3] (Doc. 4).

         Meanwhile, after receiving defendant's motion to dismiss, counsel for plaintiff mailed a copy of the summons and complaint via certified mail to Baxter & Associates and to Baxter at the same address. The certificate of service cards were signed by a Paula Sattler on February 26 (Baxter & Associates) and February 27 (Baxter) and returned. See Doc. 6, Exhibit 3.

         On March 7, 2018, plaintiff filed a response to defendant's motion. (Doc. 6). Plaintiff first says that defendant did not seek concurrence before filing the motion to dismiss as required by the local rules. See E.D. Mich. LR 7.1(a). Plaintiff further says that if concurrence was sought, plaintiff would have voluntarily dismissed the case without prejudice and re-filed a complaint in the proper type size and attempted service again. Plaintiff also says that when the summons and complaint were delivered at defendant's office address, Klein accepted the documents-after being told what they were-and never said she could not accept service but rather said the documents would be given to “the legal department.” Plaintiff also says that it will attempt service again and that defendant's standing argument lacks merit.

         On March 9, 2018, plaintiff filed a First Amended Complaint (Doc. 7) which complies with the Court's type size requirements.

         On March 13, 2018, plaintiff's counsel filed a certificate of service (Doc. 8), stating that the First Amended Complaint was served via certified mail on both Baxter & Associates and Baxter.

         On March 21, 2018, defendant filed a reply. (Doc. 10). Defendant says that “plaintiff would not have concurred” in defendant's motion because plaintiff's counsel never before offered to dismiss the case and the fact that plaintiff has responded to defendants standing argument shows plaintiff would not dismiss the case. Defendant also says that because the complaint was “flagrantly filed” in violation of the type size requirements, it is “the epitome of hypocrisy for plaintiff to complain that defendant did not comply” with the local rules on seeking concurrence.[4]

         On March 26, 2018, plaintiff filed a Motion to Extend Time and Allow for Service By Alternate Means (Doc. 11). Plaintiff sets forth in detail the attempts at service on defendant and asks for an order that service be ...


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