Opinion
24-10501
07-17-2024
GERRIT SCOTT STUKKIE, Plaintiff, v. UNIVERSAL CREDIT SERVICES, Defendant.
F. KAY BEHM UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION RULE 4(m) DISMISSAL WITHOUT PREJUDICE
CURTIS IVY, JR. UNITED STATES MAGISTRATE JUDGE
I. PROCEDURAL HISTORY
Plaintiff Gerrit Stukkie filed a complaint on February 28, 2024. (ECF No. 1). A summons was issued to Plaintiff for service of process. The case was then referred to the undersigned to handle all pretrial proceedings. (ECF No. 7).
During April 2024, an attorney appeared on behalf of Defendant Universal Credit Services (ECF No. 8), but has taken no action since. On April 10, 2024, the summons was returned unexecuted. (ECF No. 9). The returned envelope has two pieces of relevant information. First is the address Plaintiff sent the summons to: P.O. Box 158, Hartland, Michigan. Second is that the mail was refused and could not be forwarded. Later that month, Plaintiff filed what he purports to be a certificate of service. (ECF No. 10). This “certificate of service” is a copy of his complaint and copies of two envelopes mailed to P.O. Box 158 that were refused and returned to sender.
The unexecuted summons and the manner of attempted service raised a concern as to whether Defendant has been properly served. On June 13, 2024, the Court issued an Order to Show Cause, first explaining the rules for service on a corporation, then requiring Plaintiff to explain why the undersigned should not recommend that Defendant be dismissed without prejudice for failure to timely serve it within 90 days of filing the complaint, as required by Fed.R.Civ.P. 4(m). His response to the Order was due July 3, 2024. To date, Plaintiff has not responded. Plaintiff was warned that failure to respond would result in a recommendation that the Defendant be dismissed without prejudice under Rule 4(m).
For the reasons discussed below, the undersigned recommends that Defendant be dismissed without prejudice.
II. ANALYSIS AND RECOMMENDATIONS
Plaintiff is responsible for serving the summons and complaint within the applicable time. Fed.R.Civ.P. 4(c)(1). “Without such personal service, a district court lacks jurisdiction to render judgment against a defendant.” Saikus v. Costco Wholesale Corp., 2020 WL 7364789 (N.D. Ohio, Apr. 6, 2020) (citing Friedman v. Est. of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991). Federal Rule of Civil Procedure 4(m) provides that if service is not effectuated within 90 days, the Court must dismiss the action without prejudice as to that defendant. “Absent a showing of good cause to justify a failure to effect timely service, the Federal Rules of Civil Procedure compel dismissal.” Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996) (citing Habib v. Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994)). It is Plaintiff's burden to establish good cause for failing to timely effect service. Habib, 15 F.3d at 73.
As explained in the Order to Show Cause, mailing a copy of the summons and complaint to a corporation's post office box (it is not clear that the post office box number belongs to Defendant since the mail was refused) is not proper service under the federal or Michigan rules for service. Plaintiff made no attempt to explain his manner of service or show that he attempted to serve Defendant by other means. So the undersigned concludes that Defendant has not been properly served with the summons and complaint.
Plaintiff's complaint should be dismissed without prejudice pursuant to Rule 4(m) for failure to timely serve Defendant.
IV. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE pursuant to Rule 4(m).
The parties here may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Loc. 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections lack merit, it may rule without awaiting the response.