United States District Court, W.D. Michigan, Northern Division
LONNIE L. PARKER #200008, Plaintiff,
UNKNOWN KELLER et al., Defendants.
Robert J. Jonker U.S. District Judge.
REPORT AND RECOMMENDATION
MAARTEN VERMAAT U.S. MAGISTRATE JUDGE.
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.
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.
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.
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
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.
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.)
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)).
Insufficient Service of Process
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.
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 ...