UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARY ANN ROJEK,

Plaintiff,

Case No. 08-14492

v. Hon. Gerald E. Rosen

CATHOLIC CHARITIES, INC.

Defendant.

____________________________ /

OPINION AND ORDER DENYING DEFENDANT’S 

MOTION FOR DISMISSAL PURSUANT TO FED. R. CIV. P. 12(b)(1) AND (5)

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on November 16, 2009 

PRESENT: Honorable Gerald E. Rosen

 Chief Judge, United States District Court

I. INTRODUCTION

Plaintiff Mary Ann Rojek commenced this action on October 22, 2008, asserting

employment discrimination claims against Defendant Catholic Charities of Jackson, Inc.,

a social services agency. This Court’s subject matter jurisdiction rests upon Plaintiff’s

pursuit of federal law claims under the Americans with Disabilities Act of 1990, 42

U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.,

against the Defendant agency. See 28 U.S.C. § 1331.

By motion filed on August 17, 2009, Defendant now seeks dismissal of this action

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under Fed. R. Civ. P. 12(b)(1) and (5) for insufficiency of service of process. Defendant

argues that the process server employed by Plaintiff failed to properly serve a summons

and a copy of the complaint upon an authorized agent of Catholic Charities of Jackson,

when he arrived at the agency’s offices on February 19, 2009 (just before the summons

was to expire). The process server left the summons and complaint with a person who

was neither an officer, manager nor authorized agent of the agency. In a response filed

September 8, 2009, Plaintiff argues that service of process was proper because the

summons and complaint were ultimately received by Defendant’s attorneys within several

days of the process server’s visit to the agency. Plaintiff argues in the alternative that

Defendant waived any ineffective service defense by attending the scheduling conference

and agreeing to accept service of an amended complaint. 

Having reviewed and considered Defendant’s motion, the parties’ briefs, and the

entire record on this matter, the Court has determined that oral argument is not necessary. 

Therefore, pursuant to Local Rule 7.1(e)(2), this matter will be decided on the briefs. 

This Opinion and Order sets forth the Court’s ruling. For the reasons set forth below, the

Court finds that Defendant’s motion should be denied.

II. BACKGROUND

Plaintiff filed this action on October 22, 2008 against “Catholic Charities, Inc.,”

alleging intentional violations of the Americans with Disabilities Act of 1990 and the

Rehabilitation Act of 1973. The lawsuit stems from Plaintiff’s attempt to secure

employment at Catholic Charities of Jackson, a social services agency located in Jackson,

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 Plaintiff Mary Ann Rojek is blind. She is a licensed clinical social worker, who

holds a Master’s degree in Social Work and has worked successfully in the field since

1976. In December 2005 and again in the spring of 2006, Plaintiff applied and

interviewed for various positions at Catholic Charities of Jackson. In both instances,

Plaintiff alleges that employees at the agency expressed concern over Plaintiff’s ability to

complete the obligations of the job, and declined to engage in discussions about

reasonable accommodations. The jobs were ultimately offered to other non-disabled

candidates. Based on these events, Plaintiff filed an Equal Employment Opportunity

Commission charge of employment discrimination in the summer of 2006. The EEOC

investigated and found reasonable cause that employment discrimination had occurred. 

On July 22, 2008, the Commission issued a right to sue letter. The notice of suit rights

stated that Plaintiff had 90 days to file a lawsuit, beginning from the time she received the

letter. Plaintiff claims to have received the letter on July 25, 2008, at the earliest. The

action was thus filed on the last possible day within the 90-day period.

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Michigan.1 Plaintiff was issued a summons for “Catholic Charities, Inc.,” the same day

she filed her complaint. Under the pertinent federal rule, such a summons and a copy of

the complaint must generally be served upon a defendant “within 120 days after the filing

of the complaint.” Fed. R. Civ. P. 4(m).

On February 19, 2009, the last day before the summons expired, Plaintiff

attempted to effect service of process upon Catholic Charities of Jackson by having a

process server deliver the summons and a copy of the complaint to the Catholic Charities

office in Jackson. According to the return of service, the documents were received and

signed for by Adrienne Rowland “on behalf of Catholic Charities.” (Pl.’s Resp. to Def.’s

Mot. to Dismiss Ex. 1.) After the summons and complaint were delivered, it appears that

Ms. Rowland or another person in the office notified Catholic Charities of Jackson of the

pending action. On February 26, 2009, defense counsel advised Plaintiff by email that it

would be representing Catholic Charities of Jackson, and requested a three-week

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extension to file an answer to the complaint. Plaintiff agreed to the extension. 

On April 1, 2009, defense counsel filed a special appearance to contest service of

process on behalf of Catholic Charities of Jackson. Defense counsel argued there was

“no indication that Adrienne Rowland was an authorized agent to receive service of

process on behalf of ‘Catholic Charities Inc.’ or Catholic Charities of Jackson, a domestic

nonprofit corporation.” (Def.’s Mot. to Dismiss Ex. C, Special Appearance) (internal

references to exhibits omitted). Rather, the resident agent of Catholic Charities of

Jackson is Vince Gale, and Mr. Gale “had not been served in any fashion with any

complaint identifying Catholic Charities of Jackson, a domestic nonprofit corporation, as

a defendant in any action, whether filed by Mary Ann Rojek or otherwise.” (Id.) Also on

April 1, 2009, Defendant filed an answer to the complaint, asserting various defenses

including insufficiency of process. 

At a scheduling conference before this Court on May 11, 2009, the parties

discussed the issue of insufficiency of process. Plaintiff claims that defense counsel

agreed to permit Plaintiff to amend the complaint, to correct Defendant’s name from

“Catholic Charities, Inc.” to “Catholic Charities of Jackson, a Domestic Nonprofit.” In so

doing, Plaintiff argues that Defendant agreed not to pursue the ineffective service defense,

because once Defendant’s name was corrected all issues regarding sufficiency of service

would be resolved. (See Shereef Akeel Aff. ¶ 4-6.) Defendant argues that, even if it

conceded that Plaintiff could amend the complaint in accordance with Fed. R. Civ. P.

15(c), and stated that it would accept service of the amended Complaint through the

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Court’s electronic filing system, it did not waive the defense that the initial service of the

lawsuit was improper. Plaintiff proceeded to file an amended complaint on May 28,

2009. On May 29, 2009, a summons was issued for Catholic Charities of Jackson, the

corrected named Defendant. Defendant filed an answer to the amended complaint on

June 30, 2009, again asserting insufficiency of process. 

On August 17, 2009, Defendant filed this motion. Defendant asks the Court to

dismiss Plaintiff's amended complaint against Catholic Charities of Jackson pursuant to

Rule 12(b)(1) and (5) of the Federal Rules of Civil Procedure for insufficiency of process. 

In support of this motion, Defendant has filed Michigan Department of Labor &

Economic Growth non-profit corporation records for Catholic Charities of Jackson, which

indicate that Vince Gale is a director of and the authorized agent for the agency. The

name Adrienne Rowland does not appear in the corporate documents. Plaintiff counters

that Defendant was properly served in light of the fact that defense counsel acknowledged

receipt of the complaint within several days of February 19, 2009. In the alternative,

Plaintiff argues that Defendant waived the insufficiency of service defense by its conduct

at the scheduling conference.

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III. DISCUSSION

A. The Standards Governing Defendants’ Motion

The service of a summons and complaint in a federal suit is governed by Fed. R.

Civ. P. 4. As noted earlier, this Rule establishes a presumptive 120-day limit upon

service, but the Court is authorized to extend this limit:

If service of the summons and complaint is not made upon a defendant

within 120 days after the filing of the complaint, 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.

Fed. R. Civ. P. 4(m). Through the present motion, Defendant argues that Plaintiff failed

to effect proper service upon the agency within the presumptive 120-day limit, and that

the record fails to provide any justification for extending this limit. Accordingly,

pursuant to Fed. R. Civ. P. 12(b)(5), the agency seeks the dismissal of this action without

prejudice for insufficiency of service of process. 

Generally, a court may not exercise power over an individual named as a

defendant absent service of process. Murphy Bros. v. Michetti Pipe Stringing, 526 U.S.

344, 350, 199 S. Ct. 1322 (1999). Rule 12(b)(5) permits a party to raise the defense of

insufficiency of service of process in a motion to dismiss; the plaintiff bears the burden of

proving that proper service was effected. Frederick v. Hydro-Aluminum S.A., 153 F.R.D.

120, 123 (E.D. Mich. 1994). Courts have broad discretion to dismiss an action that

involves improper service. Sherer v. Construcciones Aeronauticas, S.A., 987 F.2d 1246,

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1247 (6th Cir. 1993). Nevertheless, dismissal is not invariably required where service is

ineffective—under such circumstances a court has discretion to either dismiss the action

or quash service but retain the case for proper service later. Frederick, 153 F.R.D. at 123

(citing Stern v. Beer, 200 F.2d 794, 795 (6th Cir. 1952); Maichok v. Bertha-Consumers

Co., 25 F.2d 257 (6th Cir. 1928)). Because the Court is resolving this matter on the

written record, it “will not consider facts proffered by the defendant that conflict with

those offered by the plaintiff, and will construe the facts in the light most favorable to the

nonmoving party.” Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th

Cir. 2002) (citations omitted).

B. Plaintiff Failed to Properly Serve the Defendant Agency. 

In this case, it is undisputed that Plaintiff made only one attempt to serve

Defendant with the summons and a copy of the complaint on the very last of the 120-day

period for service. Plaintiff or Plaintiff’s process server did not seek to confirm that the

person who accepted service on behalf of Catholic Charities of Jackson, Adrienne

Rowland, was in fact an agent for the agency under the relevant rules. In support of the

present motion, Defendant argues that this single attempt at service failed to comport with

the federal court requirements for service of a summons and complaint. The Court

agrees. 

Fed. R. Civ. P. 4(h)(1) provides that a corporation, absent a waiver, shall be served

in a judicial district of the United States, in one of two ways. First, a corporation may be

served by delivering the summons and a copy of the complaint “to an officer, a managing

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or general agent, or any other agent authorized by appointment or by law to receive

service of process” on behalf of the corporation. Fed. R. Civ. P. 4(h)(1)(B). In the Sixth

Circuit, “a managing agent is one authorized to transact all business of a particular kind at

a particular place and must be vested with powers of discretion rather than being under

direct superior control.” Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d

615, 624 (6th Cir. 2004). 

Alternatively, a corporation may be served “pursuant to the law of the state in

which the district court is located, or in which service is effected, for the service of a

summons upon the defendant in an action brought in the courts of general jurisdiction of

the State.” Fed. R. Civ. P. 4(e)(1); see also Fed. R. Civ. P. 4(h)(1)(A) (incorporating

subsection (e)(1) by reference in defining the available methods of serving corporations,

partnerships, or other unincorporated associations). The pertinent Michigan court rule

provides:

Service of process on a domestic or foreign corporation may be made by

(1) serving a summons and a copy of the complaint on an officer or

the resident agent; [or]

(2) serving a summons and a copy of the complaint on a director,

trustee, or person in charge of an office or business establishment of

the corporation and sending a summons and a copy of the complaint

by registered mail, addressed to the principal office of the

corporation . . . .

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 This rule includes additional provisions for service upon corporations that have

either ceased to do business, failed to appoint and maintain a resident agent, or failed to

properly maintain their corporate organization or existence. See Mich. Court Rule

2.105(D)(3), (4). None of these provisions applies here.

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Mich. Court Rule 2.105(D).2 As discussed below, neither method of service was

achieved here.

The only evidence in the record that indicates the form and method of service in

this case is the Certificate of Service filed on February 23, 2009. (Pl.’s Resp. to Def.’s

Mot. to Dismiss Ex. 1.) The Certificate states that the summons and a copy of the

complaint were delivered by personal service to the Jackson, Michigan address of

Catholic Charities of Jackson. The name of the party served is indicated as “Catholic

Charities, Incorporated.” (Id.) The certificate is signed by the process server and by

Adrienne Rowland, “[on] behalf of Catholic Charities.” (Id.) Plaintiff has provided no

other evidence that Adrienne Rowland was an officer, a managing or general agent, or

any other agent authorized by appointment or by law to receive service of process for

Catholic Charities of Jackson. Nor has Plaintiff provided evidence to refute the corporate

records which indicate that Vince Gale was the registered agent for Catholic Charities of

Jackson, and which make no mention of Ms. Rowland as either a trustee or officer of the

social services agency. In fact, neither party even addresses Ms. Rowland’s job or

position, much less whether she was authorized to transact any kind of business for

Catholic Charities. See Bridgeport Music, Inc., 376 F.3d at 624 (holding that plaintiff

copyright holder failed to show that licensor was “managing agent” for alleged infringer,

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for purpose of accepting service of process, where there was no evidence in the record

concerning the amount of discretion licensor could exercise with respect to the licensing

of works owned by alleged infringer); O.J. Distributing, Inc. v. Hornell Brewing Co., 340

F.3d 345, 354 (6th Cir. 2003) (holding that plaintiff failed to demonstrate that an

unknown receptionist who signed for an overnight mail package qualified as an

“authorized agent” under Rule 4(h)). Thus, Plaintiff has failed to meet her burden of

proving that proper service was effected under the relevant federal rules.

Neither can it be said that Plaintiff’s process server effected service upon the

Defendant agency in accordance with Michigan law. Just as there is no evidence that Ms.

Rowland was an officer or registered agent of the Defendant agency, neither has Plaintiff

shown (or even claimed) that Ms. Rowland was a director or trustee of the firm, or that

she was “in charge” of the Jackson facility as required by Michigan law. See, e.g.,

Continental Ins. Co. v. B & B Educator Sales, Inc., 34 Mich. App. 499, 192 N.W.2d 126

(1971) (finding service of summons and complaint on employee of defendant corporation

who was neither officer nor authorized service-receiving agent was defective). Moreover,

assuming arguendo that Ms. Rowland qualified as a person in charge of the office or

business establishment of the corporation, there is no evidence that Plaintiff took the

additional step of “send[ing] a summons and a copy of the complaint by registered mail,

addressed to the principal office of the corporation,” as required by Michigan Court Rule

§ 2.105(D)(2). Accordingly, Plaintiff has failed to demonstrate that the process server

effected service upon the Defendant agency in accordance with either of the two

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alternative methods authorized under Rule 4(h). 

Lastly, to the extent that Plaintiff argues that service was properly effected because

the summons and complaint ultimately made their way into the hands of Catholic

Charities’ counsel, such theories of service of process have been routinely rejected by

federal courts. Even if the Court assumes that Defendant had actual notice of this suit

within the 120-day limit, such notice does not satisfy the dictates of federal law. See LSJ.

Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 322 (6th Cir. 1999) (“This court has indicated . . .

that it will not allow actual knowledge of a lawsuit to substitute for proper service under

Fed. R. Civ. P. 4.”); Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991)

(reversing a district court’s determination “that actual knowledge of the action cured a

technically defective service of process”); Lafarge Corp. v. Altech Environmental USA,

220 F. Supp.2d 823, 831-32 (E.D. Mich. 2002) (finding that actual notice does not suffice

under federal law, notwithstanding a Michigan Court Rule provision that precludes

dismissal so long as the defendant was timely informed of the suit). For all of these

reasons, the Court finds that Plaintiff failed to properly serve Defendant with the

summons and complaint.

2. Defendant’s actions at the scheduling conference did not constitute waiver.

Defendant did not waive service of process by attending the scheduling conference

on May 11, 2009 and engaging in discussions about the insufficient service defense. Fed.

R. Civ. P. 12(h) provides that a defendant waives the defense of insufficient service of

process by failing to either raise it in a pre-answer motion to dismiss under Rule 12, or, if

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no such motion is made, failing to include it in its answer. Fed. R. Civ. P. 12(h). In this

case, Defendant preserved its improper service defense by filing both a special

appearance indicating its intent to challenge service of process, and by including the

defense in its answer to the complaint. The defense was also raised in the answer to the

amended complaint. Finally, Defendant had made no prior motions under Fed. R. Civ. P.

12 when it filed the present motion.

These technical requirements aside, Plaintiff argues that statements that defense

counsel made during the scheduling conference constitute waiver of the defense of

insufficient service of process. Plaintiff cites no case law in support of this theory. As a

general matter, a defendant does not waive the defense of defective service by proceeding

with discovery and attending scheduling conferences. Indeed, courts have held that “it is

prudent to proceed with one’s cause while awaiting determination of motions to dismiss.” 

Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568 (3d Cir. 1996). In this case, taking

Plaintiff’s account of the May 11, 2009 scheduling conference as accurate, the Court

finds only that Plaintiff misunderstood the nature of the agreement reached by the parties. 

The parties discussed permitting Plaintiff to file an amended complaint, clarifying the

named Defendant as “Catholic Charities of Jackson” rather than “Catholic Charities, Inc.” 

The fact that Defendant conceded Plaintiff’s right to amend under Rule 15(c) did not

resolve the issue of insufficient service of process, where no registered or authorized

agent of Catholic Services of Jackson has been served to date. That defense counsel

agreed to accept service of the amended complaint through the Court’s electronic filing

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system does not remedy this flaw in the original service of process, even if it created in

Plaintiff the impression that the improper service of process defense would eventually be

resolved. Thus, the Court concludes that Defendant did not waive the improper service

defense.

3. Although Plaintiff has not shown good cause for failure to timely serve

Defendant, a permissive extension of time is warranted.

While the Court has determined that Defendant was not properly served with the

summons and complaint within the 120-day period set forth in Rule 4(m), the question

remains whether Defendant is entitled to dismissal of the claims against it. Under the

plain language of the Rule itself, a dismissal is not mandatory—rather, under the

appropriate circumstances, the Court instead can re-open the window of opportunity for

service and “direct that service be effected within a specified time.” Fed. R. Civ. P. 4(m);

see also United States v. Ninety Three Firearms, 330 F.3d 414, 426 (6th Cir. 2003)

(holding that district court was not required to dismiss forfeiture action based upon

government’s failure to serve claimant within 120 days after filing forfeiture complaint,

but could extend time for service for appropriate period, where court required government

to show cause for delay and government complied). Under the circumstances presented

here, the Court finds that a permissive extension is warranted.

As a threshold matter, Rule 4(m) dictates that the Court “shall extend the time for

service,” with no discretion to proceed otherwise, if Plaintiff can show “good cause” for

her failure to properly serve Defendant within the initial 120-day period. As a court in

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this district explained:

It is the plaintiff's burden to show that good cause exists. See Friedman v.

Estate of Presser, 929 F.2d 1151, 1157 (6th Cir. 1991). Good cause may

exist if the defendant intentionally evades service, however, the plaintiff's

failure to obtain proper service of process, even if inadvertent, is not enough

to establish good cause. See id. Actual notice and lack of prejudice to the

defendant are likewise insufficient to establish good cause. See Moncrief v.

Stone, 961 F.2d 595, 596-97 (6th Cir. 1992). The district court's good

cause determination is reviewed under an abuse of discretion standard. See

Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996).

Slenzka v. Landstar Ranger, Inc., 204 F.R.D. 322, 324 (E.D. Mich. 2001). In this case,

Plaintiff only argues that inadvertence and misunderstanding led to the failure to properly

effect service of process on Defendant within the required 120 day time period. This is

insufficient to establish good cause. 

Nonetheless, Plaintiff may still survive Defendant’s motion to dismiss. Even in

the absence of good cause, it remains within the Court’s discretion to grant an extension. 

See Fed. R. Civ. P. 4(m); see also Panaras v. Liquid Carbonic Industries Corp., 94 F.3d

338, 340-41 (7th Cir. 1996); Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1131-32

(11th Cir. 1995); Slenzka, 204 F.R.D. at 325-26. In determining whether to exercise this

discretion, the Court considers such factors as: (1) whether a significant extension of time

is required; (2) whether an extension of time would prejudice the defendant other than the

inherent “prejudice” in having to defend the suit; (3) whether the defendant had actual

notice of the lawsuit; (4) whether a dismissal without prejudice would substantially

prejudice the plaintiff; i.e., would her lawsuit be time-barred; and (5) whether the plaintiff

had made any good faith efforts at effecting proper service of process. See Slenzka, 204

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 Plaintiff filed this action on the last possible day permitted by the EEOC notice

of suit rights letter: she filed this lawsuit on October 22, 2008, the last day of the 90-day

period to sue.

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F.R.D. at 326; Coleman v. Milwaukee Board of School Directors, 290 F.3d 932, 934 (7th

Cir. 2002).

Of these factors, the first four weigh in Plaintiff’s favor. First, since Defendant’s

authorized agent has been clearly identified as Vince Gale, a significant extension of time

is not required to effect proper service of process. There is no reason to doubt Plaintiff’s

ability to promptly serve process upon the correct agent. Second, the Defendant agency

has not identified any prejudice it would suffer if an extension were granted, other than

the inherent “prejudice” in having to defend the suit. Third, while there is no evidence

that the Defendant agency had actual notice of this action within the 120-day period for

service, Defendant clearly learned about the case shortly thereafter, as indicated by the

February 26, 2009 email to Plaintiff. Finally, and perhaps most important, if this Court

were to dismiss the action without prejudice under Rule 4(m), Plaintiff’s employment

discrimination claims would be barred by the statute of limitations if re-filed.3

 Therefore,

absent a showing that the delay impaired Defendant’s ability to defend the case on the

merits, dismissal for improper service would be inappropriate. See Boley v. Kaymark,

123 F.3d 756, 758 (3d Cir. 1997). 

The fifth factor—whether Plaintiff has made any good faith efforts at effecting

proper service of process—weighs against granting an extension. Plaintiff waited until

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the last day before the summons expired to attempt service of process. She or her counsel

unilaterally relied on the process server’s single attempt, without monitoring whether it

was in fact effectively completed. Plaintiff’s only excuse is that the February 26, 2009

email from defense counsel led her to believe that service was properly effected. In spite

of the foregoing, Defendant has brought forth no evidence that Plaintiff's failure to

properly serve the agency was in bad faith. On the contrary, Plaintiff is willing to

promptly comply, as evidenced by her filing of an amended complaint with Defendant’s

corrected name, following the scheduling conference.

Having weighed the equities, the Court finds that a moderate extension of time for

service of the summons and amended complaint on Defendant pursuant to Rule 4(m) is

appropriate.

IV. CONCLUSION

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant Catholic

Charities of Jackson’s Motion for Dismissal [Dkt. # 14] is DENIED. 

The Court GRANTS Plaintiff leave to properly serve Defendant Catholic Charities

of Jackson with process no later than Monday, November 30, 2009. If Plaintiff does not

properly serve Defendant with process by November 30, 2009, the Court will dismiss

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 Plaintiff's claims against Defendant without prejudice.

s/Gerald E. Rosen 

Gerald E. Rosen

Chief Judge, United States District Court

Date: November 16, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record on

November 16, 2009, by electronic and/or ordinary mail.

s/Ruth A. Brissaud 

Case Manager

(313) 234-5137

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