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Southern v. Ghannam

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

July 29, 2019

TRACY AND APRIL SOUTHERN, Plaintiffs,
v.
DAVID E. GHANNAM and DAVID E. GHANNAM, P.C., Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

          HON. BERNARD A. FRIEDMAN, JUDGE

         This matter is presently before the Court on defendants' motion to dismiss [docket entry 6]. Plaintiffs have responded and defendants have replied. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without a hearing.

         This is a debt collection practices case. Plaintiffs allege that defendants violated their rights under the Fair Debt Collection Practices Act and the Michigan Collection Practices Act in February and March 2018 by making various false representations regarding a debt plaintiffs owed under a land contract, failing to provide a validation notice, leaving harassing and misleading voicemail messages regarding the debt, mailing a harassing and misleading forfeiture notice, and filing a state-court lawsuit claiming amounts not actually owed. They seek damages, costs, and attorney fees.

         Defendants seek dismissal on the grounds that they have not been served properly with process and that service was not timely. Under Fed.R.Civ.P. 4(e), an individual may be served in a manner permitted by state law[1] or personally or by “leaving a copy of [process] 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 [process] to an agent authorized by appointment or by law to receive service of process.” Under Fed.R.Civ.P. 4(h), a corporation may be served in a manner permitted by state law[2] or by delivering process “to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.” Further, under Fed.R.Civ.P. 4(m),

[i]f 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.

         In the present case, plaintiffs were required to serve defendants by May 20, 2019, as the complaint was filed on February 19, 2019. Plaintiffs have not shown that either defendant was served by this deadline. Nor have plaintiffs shown good cause for this failure.

         Plaintiffs indicate that on April 9, 2019, they mailed a copy of the summons and complaint to defendants along with a request to waive service. Defendants deny receiving this mailing. Whether defendants received it or not is irrelevant for present purposes because defendants did not execute the waivers and therefore plaintiffs were required to serve them with process using one of the methods specified above.

         Plaintiffs' counsel indicates that on May 13, he hired a process server, Richard Wolk, to personally serve defendants. Wolk avers that

3. On May 14, 2019 at approximately 4:00 p.m. I attempted to serve a lawsuit on David E. Ghannam at his law office located at 15900 Michigan Ave., Dearborn, Michigan.
4. At that time I spoke with “Dana” who identified herself as a receptionist who works for Mr. Ghannam.
5. Dana told me that Mr. Ghannam was not present at which time she attempted to call him.
6. I heard Dana ask Mr. Ghannam if she could accept service on his behalf. Dana then told me that Mr. Ghannam instructed her not to accept service.
7. Dana further told me that Mr. Ghannam would be present in the office on ...

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