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Anderson v. Clinton Township Police Department

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

May 30, 2019

ROBERT ANDERSON, Plaintiff,
v.
CLINTON TOWNSHIP POLICE DEPARTMENT, et al., Defendants.

          Terrence G. Berg United States District Judge

          REPORT AND RECOMMENDATION DISMISSAL WITHOUT PREJUDICE OF DEFENDANTS ANDREW JOHNSON AND WILLY GILMORE

          Stephanie Dawkins Davis United States Magistrate Judge

         I. BACKGROUND

         Plaintiff brought this action pro se under 42 U.S.C. §§ 1983 and 1981. (Dkt. 1). District Judge Terrence G. Berg referred all pretrial matters in this case to the undersigned on May 29, 2018. (Dkt. 12). On December 4, 2018, this Court ordered plaintiff Anderson to show cause why he has failed to make service of the summons and complaint as to defendants Andrew Johnson and Willy Gilmore in this matter. (Dkt. 34). Anderson timely responded to the order to show cause. (Dkt. 36). In his response he states that defendants Johnson and Gilmore are evading service and that he attempted service via “US Mail, UPS, and FED EX” and personal service. He requested an additional 90 days to attempt service or that this Court direct service by the U.S. Marshals Service at his expense. In order to properly evaluate Anderson's response to the order to show cause, the Court ordered Anderson to provide a supplemental brief detailing all of his efforts to effectuate service on Johnson and Gilmore. Anderson timely filed a supplemental brief in which he explained that both Gilmore and Johnson were aware of this litigation and “were sent via U.S. mail for AO 398[1] to this case on or about 09/21/2018.” (Dkt. 44). He further states that both defendants were mailed via USPS priority mail in a Macomb County case, that Johnson was emailed a copy of the filed papers because his address was undeliverable by USPS and that he exchanged emails (it is not clear with which defendant he exchanged emails, although presumably it was with Johnson) in February 2018, about two months before Anderson filed the complaint. (Id.).

         II. DISCUSSION

         In this case, Anderson did not properly serve the summons and complaint on Johnson and Gilmore pursuant to Fed.R.Civ.P. 4(e). Rule 4(e) provides,

(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States 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.

         Anderson was attempting to serve both Johnson and Gilmore, individuals, but did not explain any efforts to personally serve either defendant, to leave a copy at their dwellings, or delivering a copy to an authorized agent.

         Anderson's service attempts also do not comport with Michigan law.

         Michigan Court Rule 2.105 provides the means by which a plaintiff may ...


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