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Parker v. Keller

United States District Court, W.D. Michigan, Northern Division

April 22, 2019

LONNIE L. PARKER #200008, Plaintiff,
v.
UNKNOWN KELLER et al., Defendants.

          Hon. Robert J. Jonker U.S. District Judge.

          REPORT AND RECOMMENDATION

          MAARTEN VERMAAT U.S. MAGISTRATE JUDGE.

         This is a civil rights action brought by state prisoner Lonnie L. Parker pursuant to 42 U.S.C. § 1983. Defendants Keller and Lovin (the “Trinity Defendants”) filed a “Motion to Quash Service and Dismiss for Insufficient Service of Process.” (ECF No. 48.) For the reasons stated below, the undersigned recommends that the Court GRANT IN PART and DENY IN PART the Trinity Defendants' motion.

         Background

         On July 8, 2017, Plaintiff initiated this action, asserting retaliation and conspiracy claims against Defendants Keller, Perry, and Lovin. (ECF No. 1.) At the time of the alleged incidents in the complaint, Defendant Perry was employed at the Michigan Department of Corrections (MDOC), and Defendants Keller and Lovin were employed at Trinity Services Group, Inc. Trinity is a company that contracted with the MDOC to provide food service at the prisons until July 31, 2018.

         After screening the complaint, U.S. Magistrate Judge Timothy P. Greeley issued an Order for Service on December 12, 2017. (ECF No. 6.) The order stated that the U.S. Marshals Service shall request a waiver of service from Defendants Keller, Perry, and Lovin. Defendant Perry, an MDOC employee, waived service and an attorney appeared on March 6, 2018. However, two attempts to obtain a waiver of service from the Trinity Defendants were unsuccessful.

         On August 16, 2018, Plaintiff filed a motion to serve the complaint on the Trinity Defendants. On October 2, 2018, Magistrate Judge Greeley ordered the Clerk's Office to issue a summons and forward it to the U.S. Marshals Service for service. (ECF No. 36.) A summons was issued the following day.

         On November 13, 2018, the Court received executed summons returns for the Trinity Defendants from U.S. Marshal Deputy Chelsea Hill. (ECF Nos. 42, 43.) The returns indicate that the summons and complaint were mailed via certified mail to Trinity Food Service in St. Louis, Missouri.

         On November 20, 2018, Attorney Tabitha Bono filed a limited appearance on behalf of the Trinity Defendants for the purposes of contesting service of process and also filed a motion to quash service and dismiss the complaint for insufficient service. (ECF No. 48.)

         Discussion

         The Trinity Defendants filed a motion to quash service and dismiss the complaint for insufficient service of process pursuant to Fed.R.Civ.P. 12(b)(5). A motion to quash service differs from a motion to dismiss for insufficient service of process. “Where service is ineffective, a court has discretion to either dismiss the action or quash service and retain the case.” Meyer v. Timothy E. Baxter & Assoc, 2018 WL 1858182, at *2 (E.D. Mich., Apr. 18, 2018) (quoting Young's Trading Co. v. Fancy Import, Inc., 222 F.R.D. 341, 342-43 (W.D. Tenn. 2004). “[T]he Sixth Circuit has expressed a preference to treat the first motion for improper service as a motion to quash.” Adams v. Cnty. of Calhoun, 2017 WL 1217787, at *2 (W.D. Mich. Mar. 3, 2017) (citing Stern v. Beer, 200 F.2d 794, 795 (6th Cir. 1953) (“[I]f the first service of process is ineffective, a motion to dismiss should not be granted, but the case should be retained for proper service later.”)). “The plaintiff bears the burden of proving that service was proper.” Breezley v. Hamilton Cnty, 674 Fed.Appx. 502, 505 (6th Cir. 2017) (citing Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996)).

         1. Insufficient Service of Process

         The Trinity Defendants argue that despite the executed summons returned by the U.S. Marshal, the service was ineffective. Trinity is a company that contracted with the MDOC to provide food service until July 31, 2018. TKC Holdings, Inc., is the parent corporation of Trinity. TKC is a corporation registered to do business in St. Louis, Missouri. Attorney Tabitha Bono is employed as an assistant counsel at TKC. According to her declaration, she is not authorized to accept service of process for any former employees of Trinity. (ECF No. 48-2, PageID.290.) Attorney Bono states that she spoke with U.S. Marshal Deputy Chelsea Hill on at least two occasions and informed her that Defendants Keller and Lovin no longer work for Trinity and that she is not authorized to accept service of process for former employees. (ECF No. 48-2, PageID.291.) Attorney Bono also informed U.S. Marshal Deputy Hill that she could not provide the last known addresses of Defendants Keller and Lovin without a court order. (ECF No. 48-2, PageID.291.) Despite these conversations, U.S. Marshal Deputy Hill sent the summons and complaint to TKC via certified mail and returned the executed summons to the Court.

         Plaintiff does not dispute that the service of process was insufficient. Although a U.S. Marshal's return creates a presumption of valid service on an agent, the presumption may be rebutted if the defendant demonstrates that service was not received. Howard Johnson Int'l, Inc. v. SSR, Inc. 2015 WL 4461347, at *2 (D.N.J. July 21, 2015). Accordingly, the undersigned finds that the Trinity Defendants have rebutted the presumption that ...


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