UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

YOLANDA GORDON,

 CIVIL ACTION NO. 14-13839

Plaintiff,

 DISTRICT JUDGE NANCY G. EDMUNDS

v.

 MAGISTRATE JUDGE R. STEVEN WHALEN

ENHANCED ACQUISITIONS

LLC, et al.,

Defendants.

_________________________________/ 

ORDER TO SHOW CAUSE AND DENYING PLAINTIFF’S MOTION TO

COMPEL [Doc. #9]

On October 5, 2014, Plaintiff Yolanda Gordon filed suit in this Court, alleging

violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (‘‘FDCPA’’). 

The docket shows that Defendants Scott Richmond and Lisa Smith have not been served. 

The time for service of a complaint and summons is 120 days from the filing of the

complaint. Fed.R.Civ.P. 4(m). That time has long passed. 

Further, while a Clerk’s entry of default was entered against Defendant Enhanced

Acquisitions LLC on June 8, 2015, Docket #7, Plaintiff has not yet filed a motion for default

judgment. As such, Plaintiff will show cause within 14 days why claims against this 1

1

The certificate of service, Docket #4, indicates that Defendant Enhanced

Acquisitions LLC was properly served under Rule 4(h)(1)(A) which permits service

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Defendant should not be dismissed for failure to prosecute. See Schafer v Johanson, 2010

WL 4639073, *2 (E.D. Mich November 8, 2010)(Ludington, J.)(dismissal for failure to

prosecute appropriate where plaintiffs’ declined to request default judgment well after

procuring entry of default). 

Plaintiff’s motion to compel discovery against Rodney A. Giove [Doc. #9] filed

August 10, 2015 will be denied as premature. See Fed. R. Civ. P. 26(d)(1)("A party may not

in accordance with the law of the state in which service is effected. 

N.Y. C.P.L.R. 311–a (a) provides in relevant part as follows:

Service of process on any domestic or foreign limited liability company

shall be made by delivering a copy personally to (i) any member of the

limited liability company in this state, if the management of the limited

liability company is vested in its members, (ii) any manager of the

limited liability company in this state, if the management of the limited

liability company is vested in one or more managers, (iii) to any other

agent authorized by appointment to receive process, or (iv) to any other

person designated by the limited liability company to receive process,

in the manner provided by law for service of a summons as if such

person was a defendant. 

Plaintiff alleges that Defendant Giove is the “sole member” of Enhanced

Acquisitions LLC. Complaint at ¶ 5. The certificate of service for Enhanced

Acquisitions LLC states that the agent effected service at Defendant Rodney A.

Giove’s offices in the afternoon of December 16, 2014 through “Gerry Angelo.” The

certificate of service, on its face, appears to constitute proper service. “[F]ederal

courts applying New York law have held that when a process server “‘serves

someone who does not have express authorization to accept service for a

corporation, service is proper under N.Y.C.P.L.R. § 311 if it is made in a manner

which, objectively viewed, is calculated to give the corporation fair notice of the suit.’”

Serv Solutions US, LLC v Autel US Inc, 2013 WL 5701063, *7 (E.D. Mich October

18, 2013)(Berg, J.)(citing Krape v. PDK Labs Inc., 194 F.R.D. 82, 85

(S.D.N.Y.1999)). 

 

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seek discovery from any source before the parties have conferred as required by Rule 26(f),

exceptin a proceeding exempted frominitial disclosure under Rule 26(a)(1)(B)” or otherwise

authorized by the Court.) However, the Court has noted Plaintiff’s claim that he has tried 2

without success to meet with Defendant Giove. Pursuant to notice of the pending Rule 16(b)

conference, parties will be required to exchange initial disclosures “at least 21 days” before 

the Rule 16(b) conference. Rule 26(f)(1).

IT IS THEREFORE ORDERED that Plaintiff show cause in writing within 14 days

of the date of this Order why Defendants Scott Richmond and Lisa Smith should not be

dismissed without prejudice for failure to serve within the time limits set forth in Rule 4(m). 

Further, Plaintiff is ordered to show cause in writing within 14 days of the date of this Order

why claims against Enhanced Acquisitions LLC should not be dismissed for failure to

2

Defendant RodneyA.Giove’s answer to the Complaint includes the affirmative

defense that this Court does not have jurisdiction over him because he was not

properly served. Answer, Docket #5. Fed.R.Civ.P. 4(e)(1) provides that service of

process may be made “pursuant to the law of the state in which the district court is

located, or in which service is effected.” “Both Michigan and New York authorize

service on an individual by personal delivery of the summons and complaint on a defendant.”

Silver v Giles, 2008 WL 227852, *1 (W.D. Mich. January 25, 2008); M.C.R. 2.105(A)(1);

N.Y. C.P.L.R. § 308(1). Under Rule 4(e)(2), the individual may be served by “delivering

a copy of the summons and of the complaint to the individual personally” or by “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.” 

The certificate of service states that Defendant Giove was served at 8:52 a.m. on

December 16, 2014. Docket #3. While Defendant Giove alleges that he was not properly

served, he has not filed a motion for dismissal on that basis. 

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prosecute. Plaintiff’s motion to compel [Doc. #9] is DENIED WITHOUT PREJUDICE.

IT IS SO ORDERED.

 s/R. Steven Whalen 

R. STEVEN WHALEN

United States Magistrate Judge

Dated: October 5, 2015

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

October 5, 2015, electronically and/or by U.S. mail.

s/C. Ciesla 

Case Manager 

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