United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS RULE 12(b)(5) MOTIONS AND EXTENDING TIME FOR
PLAINTIFFS TO PROPERLY EFFECT SERVICE
F. Cox United States District Court Judge
October 2017, Plaintiffs filed this suit against multiple
defendants, including the City of Detroit and Michigan
Secretary of State Ruth Johnson. But Plaintiffs never
properly served these defendants, either before the 90-day
period to do so expired or after the Court issued a show
cause order. Now, the City and Secretary Johnson have moved
to dismiss, asserting (among other reasons) insufficient
service of process under Rule 12(b)(5). Plaintiffs implore
the Court not to dismiss the case and ask for additional time
to effect service.
reasons below, the Court finds that Plaintiffs failed to
properly serve the City and Secretary Johnson and that they
have not shown good cause for this failure. But the Court
will nevertheless exercise its discretion to allow Plaintiffs
additional time to properly effect service.
Industries, LLC, individuals Christopher Williams and Robert
Davis, and the non-profit corporation A Felon's Crusade
for Equality, Honesty, and Truth-filed this suit on October
25, 2017 against various defendants, including the City of
Detroit and Michigan Secretary of State Ruth Johnson (Doc. #
1). The clerk issued a summons two days later (Doc. # 3). Yet
Plaintiffs failed to serve Defendants within 90 days or
request an extension.
January 31, 2018, the Court ordered Plaintiffs to show cause
why the case should not be dismissed for failure to prosecute
(Doc. # 6). In response, Plaintiffs claimed that they did not
serve Defendants because they believed a settlement agreement
could be reached before the 90-day service period expired
(Doc. # 7). This did not occur. Plaintiffs then set out to
rectify this error by serving the summons and complaint on
Defendants by certified mail. They also filed a proof of
service as to all Defendants, attaching return certified mail
receipts for Secretary Johnson and the City of Detroit (Doc.
City and Secretary Johnson then moved to dismiss under, among
other things, Rule 12(b)(2) and 12(b)(5), asserting lack of
personal jurisdiction and insufficient service of process
(Doc. # 14, 19). Plaintiffs have responded (Doc. # 29, 30).
The Court shall decide the motions on the briefs, the issues
having been adequately presented therein. LR 7.1(f)(2).
a federal court may exercise personal jurisdiction over a
defendant, the procedural requirement of service of summons
must be satisfied.” Omni Capital Int'l Ltd. v.
Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987).
Actual knowledge of the action is not enough, the
requirements of Rule 4(m) must be satisfied. See Friedman
v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir.
1991). A motion to dismiss under Rule 12(b)(5) challenges the
mode of serving a summons and complaint. See Nafziger v.
McDermott Int'l, Inc., 467 F.3d 514, 520-21 (6th
Plaintiffs concede that they did not properly serve the City
or Secretary Johnson in compliance with Rule 4 of the Federal
Rules of Civil Procedure. So, the Court presently lacks
personal jurisdiction over these defendants. But, if
Plaintiffs can show good cause for their failure to effect
service, the Court “must extend the time for service
for an appropriate period.” Fed.R.Civ.P. 4(m). If not,
the Court has two options: it may dismiss the action without
prejudice against these defendants or it may order that
service be made within a specified time. Id.;
Henderson v. United States, 517 U.S. 654, 662 (1996)
(observing that, under Rule 4(m), “courts have been
accorded discretion to enlarge the [90-day] period even if
there is no good cause shown.”) (quotations omitted).
of course, Plaintiffs' burden to show good cause.
Friedman, 929 F.2d at 1157. They have not done so.
Their claim that they were seeking to settle the case is no
excuse for failing to serve Defendants; Plaintiffs could have
easily served them in a timely manner while continuing to
pursue a settlement. And even when they finally attempted to
serve Defendants (which did not occur until prompted by a
show cause order), they failed to do so properly. Their
attempt to serve the City and Secretary Johnson via certified
mail did not comply with the procedural requirements that
Plaintiffs should have been aware of. See Fed. R.
Civ. P. 4(e); Fed.R.Civ.P. (j)(2); M.C.R. 2.115(G)(2). Thus,
the Court finds that Plaintiffs did not make a
“reasonable and diligent effort to effect
service” and therefore declines to find good cause.
See Habib v. Gen. Motors Corp., 15 F.3d 72, 74 (6th
good cause, the Court has discretion to either dismiss the
action without prejudice or to order that service be made
within a specified time. Fed.R.Civ.P. 4(m). In determining
whether to exercise this discretion, the Court considers
whether: (1) a significant extension of time is required; (2)
an extension would prejudice Defendants in some way other
than the inherent prejudice in having to defend the suit; (3)
Defendants had actual notice of the suit; (4) a dismissal
without prejudice would substantially prejudice Plaintiffs;
and (5) Plaintiffs made any good faith efforts at effecting
proper service of process. Slenzka v. Landstar Ranger,
Inc., 204 F.R.D. 322, 325 (E.D. Mich. 2001).
these factors, the first three weigh in Plaintiffs'
favor. There is no reason why Plaintiffs should not be able
to promptly serve the City and Secretary Johnson if they
receive an extension. And Defendants have not identified any
additional prejudice that they would incur from an extension;
indeed, they have actual notice of the suit and have been
actively involved in the case, as evidenced by their motions
fourth and fifth factors do, however, weigh against
Plaintiffs. Plaintiffs have not identified any prejudice that
they would suffer if their claims against these Defendants
were dismissed without prejudice (such as by arguing that
their claims would be time-barred). Nor have they shown that
they made good-faith efforts to effect proper service.
Indeed, Plaintiffs failed to even attempt to timely serve