UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

KATHERINE HEATHER NOEL, 

 Plaintiff, Case No. 14-cv-14283 

v. Honorable Thomas L. Ludington 

JEFFREY RAYMOND CARPENTER, 

 Defendant. 

__________________________________________/ 

ORDER DIRECTING RESPONSE 

 On November 7, 2014, Defendant Jeffrey Raymond Carpenter filed an ex parte motion 

for an extension of time to respond to Plaintiff Katherine Heather Noel’s complaint. ECF No. 2. 

Defendant removed this matter from state court on November 6, 2014 and claims that 

“[a]lthough Plaintiff did not serve the U.S. Attorney’s Office as required by Fed. R. Civ. P. 

4(i)(1)(A)(i) or (ii)” the case was removed “to avoid an entry of default.” Id. Defendant requests, 

by way of relief, “that the court grant additional time for the plaintiff to properly serve this office 

and grant defendant the traditional sixty (60) day time period to respond to the complaint once 

service is perfected.” Id. 

 At the outset, it should be noted that Defendant’s motion was filed ex parte and does not 

represent that concurrence was sought from Plaintiff in the matter. Failure to seek concurrence 

violates the Eastern District of Michigan Local Rules.1 Local Rule 7.1(a)(1) provides: “The 

movant must ascertain whether the contemplated motion . . . will be opposed.” If a movant 

cannot obtain concurrence, the motion must represent that either (1) “there was a conference 

 1

 The Court reminds the parties that the Local Rules are not optional: “[The Local Rules] shall govern all 

applicable proceedings brought in this Court . . . .” E. D. MICH. L.R. 1.1(d). 

1:14-cv-14283-TLL-PTM Doc # 3 Filed 11/12/14 Pg 1 of 3 Pg ID 13
- 2 - 

between attorneys or unrepresented parties and other persons entitled to be heard on the motion 

in which the movant explained the nature of the motion or request and its legal basis and 

requested but did not obtain concurrence in the relief sought” or (2) the movant made 

“reasonable efforts” but was “unable to conduct a conference.” E. D. MICH. LR 7.1(a)(2)(A)-(B). 

Seeking concurrence in matters helps avoid disputes where they otherwise would not arise, such 

as in matters of scheduling. 

 Defendant’s motion does not explain the specific relief he seeks. Ostensibly, Defendant 

moves for extra time to respond to Plaintiff’s complaint. But Defendant also alleges that he was 

improperly served by the Plaintiff, and appears to ask that Plaintiff be ordered to serve Defendant 

in conformity with the Federal Rules of Civil Procedure. 

If Defendant’s motion is for an extension of time to answer, it is moot if, as Defendant 

alleges, the United States was not properly served. Defendant is under no obligation to answer 

the complaint under the Federal Rules until service is perfected. See Fed. R. Civ. P. 12(a)(2). The 

time-limits for answering a complaint are calculated from “60 days after service on the officer or 

employee or service on the United States attorney, whichever is later.” Fed. R. Civ. P. 12(a)(3). 

In a removal action, time limits are governed by the Federal Rules from the moment the case is 

removed. Luce & Co., S. En C. v. Alimentos Borinquenos, S. A., 283 F. Supp. 81, 85 (D.P.R. 

1968). If Defendant is correct, and the United States attorney was not properly served in this 

matter, then the time limits for Defendant to respond have not yet begun to run and his motion is 

moot. 

The next possibility is that Defendant’s motion seeks relief under Federal Rule of Civil 

Procedure 12(b)(4) & (5). If Defendant seeks dismissal of Plaintiff’s complaint, the motion will 

be denied. “The Federal Rules . . . convey a clear message: Complaints are not to be dismissed if 

1:14-cv-14283-TLL-PTM Doc # 3 Filed 11/12/14 Pg 2 of 3 Pg ID 14
- 3 - 

served within 120 days or within such additional time as the court may allow.” Henderson v. 

United States, 517 U.S. 654, 663 (1996). Defendant may, however, seek to have service quashed 

and have Plaintiff directed to properly serve Defendant. 

Before deciding such a motion it is necessary to hear from Plaintiff regarding the relief 

sought by Defendant. Plaintiff will be directed to respond in writing to Defendant’s motion by 

November 14, 2014. Plaintiff should respond specifically to the allegation that the United States 

has not been properly served. 

Accordingly, it is ORDERED that Plaintiff Katherine H. Noel is DIRECTED to respond 

to Defendant’s motion, ECF No. 2, on or before November 14, 2014. 

 

Dated: November 12, 2014 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on November 12, 2014. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

1:14-cv-14283-TLL-PTM Doc # 3 Filed 11/12/14 Pg 3 of 3 Pg ID 15