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Kresch v. Miller

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

June 13, 2018

ARI KRESCH, MERCHANT'S CREDIT RECOURSE, JOHN MOLESKI, and JESSE MOLESKI, Plaintiffs,
v.
DONALD MILLER, KYLE ARNESON, UNIVERSITY CAPITAL SOLUTIONS LLC, and 1-50 DOES, Defendants.

          OPINION AND ORDER DENYING WITHOUT PREJUDICE PLAINTIFFS' MOTION FOR ALTERNATE SERVICE

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         Plaintiffs filed this lawsuit against Defendants on January 3, 2018, alleging various federal and state law claims. (ECF No. 1.) The following day, the Court issued summonses for Defendants Kyle Arneson, Donald Miller, and University Capital Solutions LLC (collectively “Named Defendants”). (ECF Nos. 2-4.) On March 28, 2018, Plaintiffs moved for an additional twenty-five days to serve the Named Defendants, which this Court granted on April 2, 2018. (ECF No. 5.) Now before the Court is Plaintiffs' motion for alternative service on the Named Defendants. (ECF No. 7.)

         In their motion, Plaintiffs indicate that their process servers have unsuccessfully attempted to serve Arneson at an address in Chicago, Illinois, and Donald Miller and University Capital Solutions at various addresses in Florida. In a certified statement, one process server indicates that he was unable to serve Donald Miller at commercial and residential addresses in Palm Beach Gardens, Florida. (ECF No. 5-1.) According to the process server, one commercial address (3601 PGA Blvd, Suite 101, Palm Beach Gardens, FL) was an empty structure and another address (2701 PGA Blvd, Suite B, Palm Beach Gardens, FL) was occupied by another tenant who did not know Miller. (Id.) Miller also was not known to the occupants of a neighboring office (law firm). (Id.) No. vehicles, lights, or activity were detected at the partially furnished residential address where service was attempted (2347 Prosperity Bay Court, Palm Beach Gardens, FL) and a neighbor indicated that Miller was rarely seen. (Id.)

         Another process server attempted to serve Miller at the Prosperity Bay address on various occasions from April 10 to 27, 2018. (ECF No. 7-1 at Pg ID 79.) The process server visited the address at varying times during that period. (Id.) Except for one occasion where the process server reported seeing someone hiding through the window, the residence appeared unoccupied and a contact card left on the door on April 11 was still there on April 26. (Id.)

         A third process server provides an affidavit stating that she made seven attempts to serve Arneson between March 18 and April 3, 2018, at 845 West Fulton Market, Unit 301, Chicago, Illinois. (ECF No. 7-2 at Pg ID 82-83.) At each visit, the main door to the condominium building was secured and the process server was unable to gain access to the interior of the building. (Id.) Through an Internet search, the process server obtained a telephone number for Arneson. The first time the process server called, she spoke to an unknown female who stated that Arneson was not there and provided a different number for him. (Id.) When the process server called that number, the outgoing voicemail message stated Arneson's name. (Id.) The process server left a message for a return call on two occasions, but no one called back. (Id.)

         Federal Rule of Civil Procedure 4(e) provides that service on an individual may be made 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 located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

         Rule 4(h) also allows for service on a corporation, partnership, or association in accordance with the law of the state in which the district court is located. Fed.R.Civ.P. 4(h)(1)(A). Alternatively, service may be made on a corporation, partnership, or association located in any United States judicial district

by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute ...

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