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Live Face on Web, LLC v. Stahold Corp.

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

July 10, 2018

LIVE FACE ON WEB, LLC, Plaintiff,
v.
STAHOLD CORP. and THOMAS R. STRACHLER, Defendants.

          ORDER GRANTING PLAINTIFF'S EX PARTE MOTION FOR AN ORDER EXTENDING THE TIME TO SERVE THE SUMMONS AND COMPLAINT, FOR A REISSUED SUMMONS, AND FOR ALTERNATE SERVICE [18]

          NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.

         I. BACKGROUND

         On December 5, 2017, Plaintiff Live Face on Web, LLC filed its complaint and summonses were issued. On March 14, 2018, this Court ordered Plaintiff to show cause why this case should not be dismissed given that Plaintiff had failed to timely serve Defendants. On March 23, 2018, Plaintiff responded that it had attempted to serve Defendants fourteen times but had not yet been successful, and Plaintiff filed an Ex Parte Motion for an Order Extending the Time to Serve the Summons and Complaint, for a Reissued Summons, and for Alternate Service. On April 10, 2018, this Court granted the motion in part with respect to Plaintiff's request to reissue and extend the summonses. The Court denied without prejudice Plaintiff's request to alternatively serve Defendants. The summonses were reissued on April 10, 2018 and expired on June 11, 2018. On June 19, 2018, the Court again ordered Plaintiff to show cause why this case should not be dismissed for failure to timely serve Defendants. On June 29, 2018, Plaintiff responded that it has attempted to serve Defendants an additional twenty-two times to no avail; that notes left at Defendant Thomas R. Stachler's home and work have been delivered; that Plaintiff's process server has called and texted Stachler without response; and that the only explanation is that Defendants are evading service. (Dkt. # 17).

         This matter is presently before the Court on Plaintiff's second Ex Parte Motion for an Order Extending the Time to Serve the Summons and Complaint, for a Reissued Summons, and for Alternate Service, filed on June 29, 2018. (Dkt. # 18). Plaintiff requests that the Court extend the time to serve the summonses and complaint by 60 days and reissue the summonses. Plaintiff further requests that the Court permit that the summonses and complaint be served upon Defendants by leaving the summonses and complaint with Stachler's personal assistant and by taping the summonses and complaint to the front door of Stachler's home.

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 4(m) requires service within 90 days after a complaint is filed:

If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

         Fed. R. Civ. P. 4(m). The plaintiff has the burden of establishing good cause, and the determination of good cause is left to the sound discretion of the district court. Habib v. Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994).

         Federal Rule of Civil Procedure 4 also sets forth the rules for serving individuals in subsection (e) and corporations in subsection (h). Both subsections provide that service may be accomplished by "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." Fed.R.Civ.P. 4(e)(1), (h)(1)(A). An individual may also be served by delivering a copy of the summons and complaint to the individual personally, 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 by delivering a copy of each to an agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e)(2). A corporation may also be served by delivering a copy of the summons and 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 so requires-by also mailing a copy of each to the defendant. Fed.R.Civ.P. 4(h)(1)(B).

         Under Michigan law, an individual may be served by "delivering a summons and a copy of the complaint to the defendant personally," or by "sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee. Service is made when the defendant acknowledges receipt of the mail." Mich. Ct. R. 2.105(A). Michigan law provides that a corporation may be served by:

(1) serving a summons and a copy of the complaint on an officer or the resident agent;
(2) serving a summons and a copy of the complaint on a director, trustee, or person in charge of an office or business establishment of the corporation and sending a summons and a copy of the complaint by registered mail, addressed to the principal office of the corporation;
(3) serving a summons and a copy of the complaint on the last presiding officer, president, cashier, secretary, or treasurer of a corporation that has ceased to do business by failing to keep up its organization by the appointment of officers or otherwise, or whose term of existence has expired;
(4) sending a summons and a copy of the complaint by registered mail to the corporation or an appropriate corporation officer and to the Michigan Bureau of ...

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