United States District Court, E.D. Michigan, Southern Division
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
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
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.).
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.
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.
service attempts also do not comport with Michigan law.
Court Rule 2.105 provides the means by which a plaintiff may