Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carrington v. Mallon

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

May 2, 2018

BRANDON CARRINGTON, Plaintiff,
v.
JEFFREY M. MALLON, Defendant.

          REPORT AND RECOMMENDATION TO DISMISS PLAINTIFFS COMPLAINT WITHOUT PREJUDICE FOR FAILURE TO TIMELY EFFECTUATE SERVICE

          DAVID R. GRAND, UNITED STATES MAGISTRATE JUDGE

         I. REPORT

         A. Procedural History

         On June 5, 2017, Plaintiff Brandon Carrington ("Carrington") filed what appears to be a legal malpractice action against his former attorney, Defendant Jeffery M. Mallon ("Mallon"). (Doc. #1). The United States Marshal Service attempted service by U.S. mail of the summons and complaint upon Mallon at the address Carrington provided. However, on September 28, 2017, the United States Post Office returned the summons and complaint as "UNABLE TO FORWARD - UNCLAIMED." (Doc. #9).

         As a result, on October 31, 2017, this Court issued an order directing Carrington to provide the correct address for Mallon by November 17, 2017. (Doc. #11). On November 15, 2017, the Court received from Carrington a document in which he provided a new address for Mallon. (Doc. #13). Thus, new summonses were issued on November 21, 2017, and the Court ordered the U.S. Marshal to serve Mallon at the updated address provided by Carrington. (Docs. #14, 15).

         On December 21, 2017, however, the U.S. Marshal indicated that its attempt to serve Mallon at the address provided by Carrington was unsuccessful. (Doc. #18). Indeed, information provided by the Marshal indicates that FedEx reported it was "Unable to deliver shipment, returned to shipper." (Doc. #18-1 at 1). No. additional information was provided as to Mallon's correct address.

         Thus, on January 11, 2018, the Court issued an Order to Show Cause, requiring Carrington to show cause, in writing, why this action should not be dismissed without prejudice because of his failure to timely accomplish service. (Doc. #19). In that order, the Court noted that more than six months had passed since Carrington filed his complaint, and the Court had twice attempted (unsuccessfully) to have Mallon served at addresses he provided. (Id. at 2).

         On February 1, 2018, the Court received a letter from Carrington in which he provided yet another address for Mallon. (Doc. #21). Thus, the Court vacated its Order to Show Cause, ordered the U.S. Marshal to serve Mallon at the updated address provided by Carrington, and extended the time for service to March 16, 2018. (Doc. #22). On February 20, 2018, the U.S. Marshal acknowledged receiving the Court's Order and a copy of Carrington's complaint. (Doc. #23). The U.S. Marshal then made an additional effort to serve Mallon at the address provided by Carrington, but those efforts were unsuccessful. (Ex. A).

         B. Analysis

         Federal Rule of Civil Procedure 4(m) provides that if service is not effectuated on a defendant within 90 days of filing the complaint, the court must dismiss the action without prejudice as to that defendant. "Absent a showing of good cause to justify a failure to effect timely service, the Federal Rules of Civil Procedure compel dismissal." Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996) (citing Habib v. General Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994)). It is a plaintiffs burden to establish good cause for failing to timely effectuate service. See Habib, 15 F.3d at 73. Further, Local Rule 41.2 provides that if the parties "have taken no action for a reasonable time, " the Court may enter an order dismissing the case for lack of prosecution.

         Almost a year has passed since Carrington commenced this action. During that period of time, despite being given multiple opportunities, Carrington has failed to provide the Court with an address where Defendant Mallon can be served. Moreover, Carrington has not proffered any explanation - let alone good cause - for his inability to provide the Court with this information. The Court also notes that although Carrington identifies Mallon as his former attorney, and listed Mallon's address as "Jeffrey M. Mallon, P.C." in Commerce Township, Michigan (Doc. #21), the Michigan State Bar Member Directory does not list an attorney by this name. (https://www.zeekbeek.com/SBM/Search-Results#lname=mallon&mtvpe=good®ion=Mn (last visited May 2, 2018).

         In sum, Carrington is responsible for providing Defendant Mallon's correct address for service purposes, and the Court is not required "'to actively seek out the address of a defendant so that service can be effectuated' upon him or her." Spencer v. Bynum, 2013 WL 4041870, at *3 (E.D. Mich. Aug. 8, 2013) (quoting Fitts v. Sicker, 232 Fed.Appx. 436, 444 (6th Cir. 2007)). Despite multiple attempts to secure a valid address where Defendant Mallon may be served, Carrington has been unable to provide one. Therefore, pursuant to Fed.R.Civ.P. 4(m) and E.D. Mich. L.R. 41.2, the Court recommends that Carrington's complaint be dismissed without prejudice. See Abel v. Harp, 122 Fed.Appx. 248, 250 (6th Cir. 2005) (citing Byrd, 94 F.3d at 219).

         II. RECOMMENDATION

         For the foregoing reasons, the Court RECOMMENDS that Carrington's complaint be DISMISSED WITHOUT PREJUDICE pursuant to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.