United States District Court, E.D. Michigan, Southern Division
RODNEY J. MEYER, Plaintiff,
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)
COHN UNITED STATES DISTRICT JUDGE
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,
alleging that defendant's efforts to collect on a debt
violated state and federal law.
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.
the technical nature of the issues, a detailed background
recitation is necessary.
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.
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. (Doc. 4).
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.
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.
March 9, 2018, plaintiff filed a First Amended Complaint
(Doc. 7) which complies with the Court's type size
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
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
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 ...