LOVE v. MICHIGAN PROPERTY RESOURCES INC (2024)

OPINION AND ORDER (1) STRIKING SECOND AMENDED COMPLAINT, ECF NO. 21; (2) STRIKING CERTIFICATES OF SERVICE, ECF Nos. 24; 25; (3) DISMISSING SEVEN DEFENDANTS; (4) DENYING WITHOUT PREJUDICE FOUR MOTIONS, ECF Nos. 17; 18; 19; 27; AND (5) DIRECTING PLAINTIFFS TO SERVE PROCESS ON DEFENDANTS

Plaintiffs filed a pro se complaint alleging perjury and fraud against Defendants, followed by two amended complaints—the second filed without leave. Process of service has not been perfected on any Defendants, yet Plaintiffs have pursued motions for freezing and garnishing Defendants’ assets, summary judgment, and default judgment. Because service of process is required to exercise jurisdiction over Defendants, the pending motions will be denied, and Plaintiffs will be directed to perfect service of process or face dismissal of their case.

I.

On November 20, 2023, Plaintiffs Michell Love and Sheikess M. Love Bey I filed a complaint here against Defendants Michigan Property Resources Inc. and Angela Montgomery, alleging “perjury” and “fraud” under 18 U.S.C. §§ 1001, 1621. See ECF No. 1. On December 21, 2023, Plaintiffs filed an amended complaint. ECF No. 6. On April 16, 2024, Plaintiffs filed a second amended complaint. ECF No. 21. Despite filing dozens of certificates of service, see ECF Nos. 5; 7; 8; 9; 13; 14; 20; 24; 25; 28; 29, Plaintiffs have still not perfected service of process on Defendants. Yet Plaintiffs filed motions to freeze and to garnish Defendants’ bank accounts, ECF No. 17, for summary judgment, ECF No. 18, and twice for default judgment, ECF Nos. 19; 27.

II.

A complaint may be amended once, in certain circumstances, without leave to do so again. See Fed. R. Civ. P. 15(a)(1)–(2).

Here, Plaintiffs did not request leave to file the second amended complaint, so it will be stricken. See Fed. R. Civ. P. 12(f)(1). The two insufficient certificates of service of the second amended complaint will also be stricken. See id. And, because the second amended complaint added seven defendants that were not identified as defendants in the complaint or amended complaint, those seven defendants will be dismissed from the case, leaving only Michigan Property Resources and Angela Montgomery as defendants. See Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any time, on just terms, add or drop a party.”).

Turning to the first amended complaint and Plaintiffs’ four related motions, this Court “must establish whether service of process was proper” because “proper service of process is required for a court to have personal jurisdiction over a defendant.”Lu v. SAP Am., Inc., No. 22-1253, 2022 WL 13983546, at *3 (6th Cir. Oct. 24, 2022) (citing Canaday v. Anthem Cos., 9 F.4th 392, 395 (6th Cir. 2021)).

Plaintiffs have not perfected service of process on either Defendant. Plaintiffs attempted to serve process on a corporation (Michigan Property Resources Inc.) and a person (Angela Montgomery)—but only by certified mail.¹ See ECF Nos. 13; 14. Without personal service, Plaintiffs had to serve process on the Michigan corporation by “sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee.” Mich. Ct. R. 2.105(A);see Fed. R. Civ. P. 4(h)(1); Fed. R. Civ. P. 4(e)(1). To that end, “[a] copy of the return receipt signed by the defendant must be attached to proof showing service.” Mich. Ct. R. 2.105(A)(2). The same requirements apply to service of process with respect to Defendant Angela W. Montgomery. See Fed. R. Civ. P. 4(e); Mich. Ct. R. 2.105(A). However, neither certified mailing sought a return receipt or was filed with a return receipt signed by a defendant. See ECF Nos. 13; 14.

Because nothing in the record indicates that Plaintiff perfected service on Defendants, this Court lacks personal jurisdiction over them. Lu, 2022 WL 13983546, at *3. Therefore, Plaintiffs’ four pending motions will be denied without prejudice. See King v. Taylor, 694 F.3d 650, 655 (6th Cir. 2012) (“[I]n the absence of personal jurisdiction, a federal court is ‘powerless to proceed to an adjudication.’ ” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999))).

Plaintiffs had until February 29, 2024, to perfect service of process. See Fed. R. Civ. P. 4(m) (“If 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.”); ECF No. 6 (filed on December 21, 2023);see also E.D. Mich. LR 41.2. But they have still not done so some four months since filing their first amended complaint. So Plaintiffs will be directed to serve process on Defendants Michigan Property Resources and Angela Montgomery on or before May 20, 2024. If Plaintiffs fail to do so, then the case will be dismissed under Civil Rules 4(m) and 41(b).²

Plaintiffs are not exempt from service based on their in forma pauperis status. Grant of leave to proceed in forma pauperis does not absolve a plaintiff of all financial responsibility. Holsey v. Bass, 519 F. Supp. 395, 406 (D. Md. 1981), aff'd sub nom. Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). When in forma pauperis filings are frivolous, costs may be taxed against the nonprevailing party. Duhart v. Carlson, 469 F.2d 471, 478 (10th Cir. 1972);Perkins v. Cingliano, 296 F.2d 567 (4th Cir. 1961);Marks v. Calendine, 80 F.R.D. 24, 25 (N.D. W. Va. 1978). As explained above, Plaintiffs have filed four premature motions and nine deficient certificates of service representing Plaintiffs paid to mail service. “And Plaintiffs have filed inconsistent applications to proceed without prepaying in at least two cases.”Love v. Campbell, No. 2:24-CV-10556 (E.D. Mich. May 4, 2024), ECF No. 8 at PageID.55. “Due to Plaintiff[s’] history of repetitive filings, and [their] demonstrated ability to pay for filings, it is appropriate to require [them], not the Government, to pay for service.”LeVay v. Morken, 597 F. Supp. 3d 1147, 1153 (E.D. Mich. 2022), appeal dismissed, No. 22-1267, 2023 WL 6389326 (6th Cir. Apr. 27, 2023).

III.

Accordingly, it is ORDERED that Plaintiffs’ Second Amended Complaint, ECF No. 21, is STRICKEN.

Further, it is ORDERED that the Certificates of Service, ECF Nos. 24; 25; 28; 29, are STRICKEN.

Further, it is ORDERED that the following seven defendants are DISMISSED WITHOUT PREJUDICE from the Complaint, ECF No. 1: Ebenezer Holding, LLC, Joel O'Bokan, Marshall Montgomery, M Sheman, M Sharpe, Wayne County Register of Deeds, and Wayne County Treasurer.

Further, it is ORDERED that Plaintiffs’ Motion to Freeze and to Garnish Bank Accounts, ECF No. 17, is DENIED WITHOUT PREJUDICE.

Further, it is ORDERED that Plaintiffs’ Motion for Summary Judgment, ECF No. 18, is DENIED WITHOUT PREJUDICE.

Further, it is ORDERED that Plaintiffs’ Motion for Default Judgment, ECF No. 19, is DENIED WITHOUT PREJUDICE.

Further, it is ORDERED that Plaintiffs’ Motion for Default Judgment, ECF No. 27, is DENIED WITHOUT PREJUDICE.

Further, it is ORDERED that the Clerk's Office is DIRECTED to issue three summonses to Plaintiffs for service on each Defendant.

Further, it is ORDERED that Plaintiffs are DIRECTED to serve a complaint and summons upon Defendants Michigan Property Resources Inc. and Angela W. Montgomery on or before May 20, 2024, in full compliance with Federal Civil Rule 4 and Michigan Court Rule 2.105. After Plaintiffs have perfected service of the complaint and summonses upon Defendants, Plaintiffs must prove it by filing with this Court a signed U.S. Postal Service Certified Mail receipt—green card (PS Form 3811). If Plaintiffs fail any of these obligations, the above-captioned case will be dismissed without prejudice under Civil Rules 4(m) and 41(b).

FOOTNOTES

1.   Notably, it appears that Plaintiffs used the incorrect address for both defendants. Both certificates reflect service being sent to P.O. boxes, neither of which is listed as an address for either defendant according to readily available public records.

2.   “To avoid dismissal, Plaintiff must [demonstrate] good cause for failing to serve process ․”Koehn v. 313 Presents, LLC, 649 F. Supp. 3d 465, 467 (E.D. Mich. 2023) (citingFriedman v. Est. of Presser, 929 F.2d 1151, 1157 (6th Cir. 1991)).

SUSAN K. DeCLERCQ, United States District Judge