Opinion
Case No. 21-10241
2021-03-15
Edward MOSELEY, Plaintiff, v. REGENCY TRANSPORTATION, LLC, and Foiad Mohamed, Defendants.
Michael N. Hanna, Morgan and Morgan, P.A., Southfield, MI, for Plaintiff.
Michael N. Hanna, Morgan and Morgan, P.A., Southfield, MI, for Plaintiff.
ORDER GRANTING MOSELEY'S MOTION FOR ALTERNATE SERVICE [4]
LAURIE J. MICHELSON, UNITED STATES DISTRICT JUDGE
Plaintiff Edward Moseley filed this action against Defendant Regency Transportation LLC ("Regency"), a Michigan limited liability company, and Defendant Foiad Mohamed, the owner and registered agent, seeking overtime and minimum wage compensation and declaratory relief under the Fair Labor Standards Act, 29 U.S.C. § 201, et. seq. (ECF No. 1.) Moseley filed the action on February 2, 2021, and summons issued for the Defendants on February 3, 2021. (ECF No. 1, 2.) Moseley now reports that he has attempted service on both Defendants ten times, and requests an order allowing alternate service by posting a copy of the summons and the complaint to Defendants' common business address and Mr. Mohamed's registered agent address, as well as mailing a copy to the two addresses. (ECF No. 4.) For the reasons that follow, the Court will grant the motion.
I.
In federal proceedings, an individual may be served by "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." Fed. R. Civ. P. 4(e)(1). In Michigan, a resident or nonresident individual may be served by
(1) delivering a summons and a copy of the complaint to the defendant personally; or
(2) sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee. Service is made when the defendant acknowledges receipt of the mail. A copy of the return receipt signed by the defendant must be attached to proof showing service under subrule (A)(2).
Mich. Ct. R. 2.105(A). Similarly, a corporation may be served "in the manner prescribed by Rule 4(e)(1) for serving an individual; or ... by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant." Fed. R. Civ. P. 4(h)(1).
If a party shows that "service of process cannot reasonably be made as provided by [these rules]," the Court may exercise its discretion with an order to permit service of process "in any other manner reasonably calculated to give the defendant actual notice of the proceedings and an opportunity to be heard." Mich. Ct. R. 2.105(I)(1). For example, courts may allow service by publication, by posting a copy of the summons and complaint on the door of the defendant's address, or by email. See, e.g., Reyes-Trujillo v. Four Star Greenhouse, Inc. , No. 20-11692, 2021 WL 534488, at *4 (E.D. Mich. Feb. 12, 2021) (collecting cases). However, substituted service "is not an automatic right." Id. at *4 (quoting Krueger v. Williams , 410 Mich. 144, 159, 300 N.W.2d 910 (1981) ). "A truly diligent search for an absentee defendant is absolutely necessary to supply a fair foundation for and legitimacy to the ordering of substituted service." Id. (quoting Krueger , 410 Mich. at 168, 300 N.W.2d 910 ).
To obtain permission for alternate service, "a plaintiff must establish (1) that service cannot be made by the prescribed means, and (2) that the proposed alternate method is likely to give actual notice." Krueger , 300 N.W.2d at 916. The first requirement must be established by "sufficient facts." Mich. Ct. R. 2.105(I)(2) ; see Krueger , 300 N.W.2d at 916. The second requirement "embodies the constitutional requirements of due process." United States v. Szaflarski , No. CIV. 11-10275, 2011 WL 2669478, at *1 (E.D. Mich. July 7, 2011) (citing Milliken v. Meyer , 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940) ).
II.
Moseley has demonstrated that service cannot be made by personal service. Regency and Mohamed share a business address because Mohamed is the corporation's registered agent. The process server verified the company's business address (see ECF No. 4, PageID.28) and attempted personal service there on five separate dates. (Id. at PageID.22–23, 31–32.) The process server then attempted personal service at the corporation's registered agent's address, which is also Mohamed's address. (Id. at PageID.23, 35–36.) At each of these ten attempts, there was no answer and the process server left a note on the door with contact details prompting the recipient to respond for important legal documents. (Id. at 31–32, 35–36.) Nothing in the record indicates that the address is mistaken. These are sufficient facts to show that Moseley has made a diligent effort at personal service and that service cannot be made by the prescribed means under Mich. Ct. R. 2.105(A).
Moseley's proposal for alternative service is likely to provide actual notice to Regency and Mohamed: he seeks to serve them by posting a copy of the summons and the complaint to both Defendants' business address and Mr. Mohamed's registered address, as well as mailing a copy to the two addresses by U.S. Postal Service. (Id. at PageID.24.) Courts may allow alternative service by these means. See Reyes-Trujillo v. Four Star Greenhouse, Inc. , No. 20-11692, 2021 WL 534488, at *4 (E.D. Mich. Feb. 12, 2021) (granting alternative service by five means, including mailing by First Class mail and posting at the address of a corporation and its registered agent); see also Live Face on Web, LLC v. Stahold Corp. , No. 17-13918, 2018 WL 3363727, at *1, *3 (E.D. Mich. July 10, 2018) (allowing alternative service on the defendants—a corporation and an individual—in part, by posting the service documents at the home of the individual defendant, who was also the corporate defendant's registered agent for service of process, and by mailing the documents via first class and certified mail to various addresses). The record shows that Moseley has verified the two addresses for the two Defendants. And given that a registered agent is a person specifically designated to receive legal documents on behalf of a corporation, posting and mailing to an entity's registered agent should be an acceptable way to ensure notice. The Court concludes that posting and mailing the materials to the Defendants' business address and to the address of its registered agent is likely to provide actual notice.
III.
Accordingly, Moseley's motion for alternate service is GRANTED. For each method, Moseley must file proof of service promptly with the Court.
SO ORDERED.