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Allstate Insurance Co. v. Utica Physical Therapy Inc.

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

June 19, 2018

Allstate Insurance Company, et al., Plaintiffs,
Utica Physical Therapy Inc., et al., Defendants.

          R. Steven Whalen Mag. Judge



         This case comes before the Court on defendants' Stefan Glowacki, M.D. and Stefan Glowacki, M.D., P.C. (“Glowacki defendants”) motion to dismiss for lack of proper service.[1] (Dkt. 43.) Finding the facts and legal arguments sufficiently presented in the parties' briefs and accompanying materials, the Court is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f). For the reasons set forth more fully below, defendants' motion to dismiss is DENIED.

         I. Background

         Plaintiffs filed this case - a multi-claim action alleging multiple defendants engaged in a coordinated scheme to defraud plaintiffs through the submission of false documentation in support of insurance claims - on November 28, 2017. (Dkt. 1.) Plaintiffs began attempting service on the Glowacki defendants on November 30, 2017. (Dkt. 54 at 12.) Plaintiffs first identified an address in Grosse Pointe, Michigan - 16 Sycamore Lane, Grosse Pointe, Michigan 48230 - as Glowacki's address. (Id., citing Dkt. 54-2 at 3.) Process server Shadow Investigations, Inc. attempted service three times at the Grosse Pointe address, but they were unsuccessful each time. (Dkt. 54-2 at 3.) The process server advised plaintiffs that it was possible that the Grosse Pointe residence was vacant because there was a lock box on the door. (Id.)

         Plaintiffs conducted a public records search and identified an alternate address for Glowacki at 592 Craig Road, Manapalan, N.J. 07726. (Id. at 4.) Plaintiffs retained Guaranteed Subpoena Service, Inc. to attempt service on the Glowacki defendants at the New Jersey address. (Id.) Mr. Andrew Pawelek was the process server assigned to effect service on the Glowacki defendants. (Dkt. 54-3 at 3.)

         According to Pawelek's affidavit, he unsuccessfully attempted service at 592 Craig Road on December 21, 2017 and December 22, 2017. (Id.) On December 23, 2017, Pawelek attempted service for the third time. (Id.) During this attempt, Ms. Dorotka Zielinski opened the door and spoke with Pawelek. (Id.) Pawelek concluded, based on Zielinski's accent, that she spoke Polish. (Id.) A Polish speaker himself, Pawelek affirms that he spoke with Zielinski in both English and Polish. (Id.) The parties offer conflicting accounts of the content of their conversation.

         Pawelek asserts he asked Zielinski if Glowacki resided at the house, and she stated Glowacki stayed there but he was in Poland at the moment. (Dkt. 54-3 at 4.) Pawelek says he asked Zielinski if Glowacki was going to return to New Jersey, and she confirmed that he was. (Id. at 5.) Finally, Pawelek asserts that “Zielinski never said that Glowacki moved to Poland.” (Id.) He confirms he “would have noted if Ms. Zielinski had said that Glowacki moved to Poland, because [he] would have known at that point that service would have been improper at this location.” (Id.) Conversely, in her affidavit, Zielinski states she “told [Pawelek] no, that Dr. Glowacki had moved in late September 2017 to Warsaw, Poland.” (Dkt. 43-1 at 6.) It is undisputed that at the conclusion of the conversation, Pawelek left the summonses and complaints with Zielinski. (Dkt. 43-1 at 6; Dkt. 54-3 at 4.)

         After taking the documents, Zielinski states she called Glowacki's former officer manager, Ms. Margaret Musialowski, who instructed Zielinski to “send her the box of papers, and she would deliver them to the proper persons.” (Dkt. 43-1 at 6.) According to defendants' counsel, Zielinski sent the documents to Musialowski; Musialowski delivered the documents to attorney Lee Roy H. Temrowski, Jr.; and Temrowski delivered the documents as a referral to defendants' counsel.[2] (Dkt. 43 at 5.) Counsel received the documents in “late January 2018.” (Id.)

         On December 28, 2017, Pawelek signed a return of service for each defendant, confirming that he left the relevant documents “at the defendant's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein.” (Dkt. 43-1 at 19, 21.) The return of service indicated that the documents were left with Dorota Zielinski, Glowacki's neice. (Id.) Plaintiffs filed the certificates of summons returned executed for the Glowacki defendants on January 9, 2018. (Dkt. 15 and Dkt. 16.) Answers for each were due on January 16, 2018. (Id.)

         On February 8, 2018, defendants' counsel[3] drafted a letter to plaintiffs' counsel, claiming that “following the death of his wife, Dr. Glowacki retired and moved from Michigan to a residence in Poland, not yet known to the undersigned.” (Dkt. 43-1 at 9.) He asserted his belief that plaintiffs' service on Zielinski was ineffective given Glowacki's relocation to Poland. (Id.) The letter was postmarked February 12, 2018, (Dkt. 54-8 at 2) and plaintiffs' counsel's office stamped it received on February 15, 2018. (Dkt. 54-8 at 3.)

         On February 12, 2018, plaintiffs requested a clerk's entry of default against six defendants in the case, including the Glowacki defendants. (Dkts. 19-24.) The clerk entered defaults for those six defendants the same day. (Dkts. 25-30.)

         On February 15, 2018, plaintiffs' attorney, Ms. Jacquelyn McEttrick, sent an email to defendants' counsel, indicating that her office had just received his February 8, 2018 letter and informing him that plaintiffs had defaulted the Glowacki defendants on February 12, 2018. (Dkt. 54-7.) McEttrick stated that plaintiffs agreed “not to seek default judgment against [Glowacki defendants] for at least another week as we discuss this matter.” She affirmed plaintiffs believed they had successfully served the Glowacki defendants, particularly in light of the Glowacki defendants' apparent notice of the complaint, as evidenced by defendants' counsel's communication regarding the complaint against them. (Id.)

         On February 19, 2018, defendants' counsel sent an email response, confirming that he would be “happy to discuss this matter, once I speak to Dr. Glowacki.”[4] (Dkt. 54-7 at 5.) He emphasized that he had not yet spoken to Glowacki, and that he was not yet representing him. (Id.) He also stated that it would “likely take [him] more than a week to contact Dr. Glowacki and prepare an Answer to the extensive Complaint [plaintiffs] filed against him.” (Id. (emphasis in original).) A subsequent email on February 19, 2018 confirmed “I will be contacting Dr. Glowacki to obtain authority, and to prepare an Answer and other pleadings in this lawsuit, and I appreciate any forbearance in entering Default Judgment. I hope to enter an Appearance very soon, and to thereby automatically receive pleadings in the matter.” (Dkt. 54-7 at 3.) Defendants' counsel also requested a copy of the Proof of Service on the Glowacki defendants, which McEttrick provided shortly thereafter. (Id. at 2-3.) On February 23, 2018, McEttrick sent a follow-up email, inquiring whether ...

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