UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DERRICK DESHAWN MILLER, 

DARREN WALLACE CHAPPELL, and 

STACEY SIMEON HALL, 

 

 Plaintiffs, Civil Action No. 15-12500 

 Honorable Marianne O. Battani 

 Magistrate Judge David R. Grand 

v. 

 

HANWHA L&C MONROE PLANT, et al., 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF MILLER’S AND 

PLAINTIFF CHAPPELL’S COMPLAINTS AGAINST DEFENDANTS 

CHANG-BUM KIM, SANG MOOK LEE, AND DENNIS KIRKLAND 

FOR FAILURE TO SERVE 

I. PROCEDURAL HISTORY 

 This is an employment discrimination case brought pursuant to Title VII of the Civil 

Rights Act of 1964 (42 U.S.C. § 2000 et seq.) and 42 U.S.C. § 1981 by pro se Plaintiffs Derrick 

Deshawn Miller, Darren Wallace Chappell, and Stacey Simeon Hall1 against Defendants 

Hanwha L&C Monroe Plant, Cathy Garello-Deron, Chang-Bum Kim, Sang Mook Lee, Dennis 

Kirkland, and the Equal Employment Opportunity Commission and four of its employees. 

Plaintiffs Miller, Chappell, and Hall allege that Defendants failed to employ them because of 

race discrimination. An Order of Reference was entered by the Honorable Marianne O. Battani 

on November 10, 2015, referring all pretrial matters to the undersigned pursuant to 28 U.S.C. § 

636(b)(1)(B). (Doc. #13). 

 

1

 Plaintiffs Miller, Chappell, and Hall had initially filed separate actions. On March 30, 2016, 

their three cases were consolidated under lead case number 15-12500 by the Honorable 

Marianne O. Battani. (Doc. #24). 

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 Defendants Chang-Bum Kim, Sang Mook Lee, and Dennis Kirkland have not answered 

or otherwise appeared in this action. Summonses were issued originally on September 11, 2015. 

(Doc. #5). On January 26, 2016, because Defendants Chang-Bum Kim, Sang Mook Lee, and 

Dennis Kirkland had never been properly served, they were dismissed from Plaintiff Hall’s case. 

(Case No. 15-12591, Doc. #12). This was before the cases were consolidated on March 30, 

2016. (Doc. #24). Consequently, these defendants were not dismissed from Plaintiff Miller’s 

case or Plaintiff Chappell’s case. 

 On March 31, 2017, the Court ordered Plaintiffs Miller and Chappell to show cause, in 

writing, why their complaints should not be dismissed without prejudice as to these three 

defendants because of their failure to timely serve them under Fed. R. Civ. P. 4(m).2

 (Doc. #55). 

The Court indicated that Plaintiffs Miller and Chappell could satisfy their obligation to show 

cause by properly serving them by April 21, 2017, and filing proper proof of service by that date. 

(Id. at 2). Plaintiffs Miller and Chappell were “expressly warned that their failure to timely and 

properly respond to this Order to Show Cause will result in a recommendation that their claims 

against Defendants Chang-Bum Kim, Sang Mook Lee, and Dennis Kirkland be dismissed 

without prejudice.” (Id.). 

 On April 25, 2017, Plaintiffs Miller and Chappell filed documents entitled “Proof of 

Service.” (Docs. #69, #70). Plaintiff Chappell filed this document as to Defendants Chang-Bum 

Kim (Doc. #69 at 1), Sang Mook Lee (Doc. #69-1 at 1), and Dennis Kirkland. (Doc. #69-2 at 1). 

 

2

 Under Fed. R. Civ. P. 4(m), service of a summons and complaint must be made upon a 

defendant within ninety days after filing the complaint, otherwise, 

the court, upon motion or on its own initiative after notice to the plaintiff, 

shall dismiss the action without prejudice as to that defendant or direct that 

service be effected within a specified time, provided that if the plaintiff 

shows good cause for the failure, the court shall extend the time for 

service for an appropriate period. 

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Plaintiff Miller, apparently in error, filed this document only as to Defendants Sang Mook Lee 

(Doc. #70-1 at 1) and Dennis Kirkland. (Docs. #70 at 1; #70-2 at 1). All of these documents 

indicate that the process server (Justin Davis) served the summonses on “Joon Young Jung, who 

is designated by law to accept service of process on behalf of” the particular defendant being 

served. 

 Rule 4(e)(2)(C) provides that an individual may be served by “delivering a copy of [the 

summons and the complaint] to an agent authorized by appointment or by law to receive service 

of process.” Fed. R. Civ. P. 4(e)(2)(C). Here, Joon Young Jung’s connection to the three 

defendants to be served is unclear. Moreover, Plaintiff Miller did not even file a valid proof of 

service as to Defendant Chang-Bum Kim. 

 Accordingly, on April 27, 2017, the Court issued a second order to show cause, giving 

Plaintiffs Miller and Chappell until May 11, 2017, to provide documentary proof that Joon 

Young Jung is an authorized agent for Defendants Chang-Bum Kim, Sang Mook Lee, and 

Dennis Kirkland as contemplated by Rule 4(e)(2)(C). (Doc. #71 at 3). Plaintiff Miller was also 

instructed to serve Defendant Chang-Bum Kim in compliance with Rule 4(m) by May 11, 2017, 

and to file a proper proof of service by that date. (Id.). Plaintiffs Miller and Chappell were 

“again expressly warned that their failure to timely and adequately respond to this Order 

to Show Cause will result in a recommendation that their claims against Defendants 

Chang-Bum Kim, Sang Mook Lee, and Dennis Kirkland be dismissed without prejudice.” 

(Id.) (emphasis in original). To date, neither Miller nor Chappell has filed a response to this 

second order to show cause. 

II. ANALYSIS 

 A court may dismiss an action under Rule 41(b) when a plaintiff fails to prosecute, 

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comply with the Federal Rules, or comply with a court order. Fed. R. Civ. P. 41(b). A court 

should consider (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) 

whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the 

dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether 

less drastic sanctions were imposed or considered before dismissal was ordered. Mulbah v. 

Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001). Moreover, under Rule 4(m), “[i]f a 

defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the 

action without prejudice against that defendant or order that service be made within a specified 

time.” Fed. R. Civ. P. 4(m). 

 With regards to this case, the Court finds that at least three of the four factors weigh in 

favor of dismissal.3

 First, despite the Court’s granting of additional time to demonstrate proper 

service, Plaintiffs Miller and Chappell have still failed to do so. They have further failed to 

respond to the Court’s second order to show cause. While the Court does not presume this is the 

result of bad faith or willfulness, they are clearly at fault for failing to comply with the Court’s 

order requiring proof of proper service on these three defendants. 

 The third and fourth factors were met by the Court’s two orders to show cause, which 

specifically warned Miller and Chappell that “their failure to timely and adequately respond . 

. . will result in a recommendation that their claims against Defendants Chang-Bum Kim, 

Sang Mook Lee, and Dennis Kirkland be dismissed without prejudice.” (Docs. #55, #71). 

Thus, Plaintiffs Miller and Chappell have been on notice of their failure to serve these three 

defendants in violation of Rule 4 for close to three months. 

 

3

 The Court can find no prejudice to Defendants Chang-Bum Kim, Sang Mook Lee, and Dennis 

Kirkland by Plaintiffs Miller and Chappell’s failure to serve, and thus the second factor is not 

met here. 

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 Having considered the relevant factors, the Court finds it appropriate to dismiss this 

action pursuant to Rules 4(m) and 41(b) for Plaintiffs Miller and Chappell’s failure to serve 

Defendants Chang-Bum Kim, Sang Mook Lee, and Dennis Kirkland within ninety days of filing 

their complaints or within the additional time granted to them by the Court, as well as their 

failure to comply with the Court’s second order to show cause. (Doc. #71). Under Rule 4(m), 

such a dismissal should be without prejudice. 

III. RECOMMENDATION 

 Accordingly, the Court RECOMMENDS dismissing Plaintiffs Miller and Chappell’s 

complaints as to Defendants Chang-Bum Kim, Sang Mook Lee, and Dennis Kirkland (Doc. #1; 

Case No. 15-14272, Doc. #1-2) WITHOUT PREJUDICE. 

Dated: May 26, 2017 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific 

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 

(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v. 

Walters, 638 F.2d 947, 949–50 (6th Cir.1981). The filing of objections which 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. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 

1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

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Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this 

magistrate judge. A party may respond to another party’s objections within 14 days after being 

served with a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1). Any such response 

should be concise, and should address specifically, and in the same order raised, each issue 

presented in the objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on May 26, 2017. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager

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