UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID SCHIED,

Plaintiff,

v.

RONALD WARD, KEN HAMMAN, KIRK

HOBSON, PATRICIA MEYER, LAURA

SURREY, KAREN ELLSWORTH,

JESSICA MURRAY, JENNIFER

BOUHANA, PATRICIA HAM, and JOE D.

MOSIER,

Defendants,

 /

Case No. 09-12374

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on ___________.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

David Schied (“Plaintiff”) filed the present lawsuit on June 19, 2009. Presently

before the Court are two motions to dismiss, the first from defendants Ward, Hamman,

Hobson, Meyer, Surrey, Ellsworth, Murray, Bouhana, and Ham (“Brighton Defendants”)

and the second from Defendant Mosier. Both motions argue that the present case must be

dismissed because of Plaintiff’s failure to properly serve defendants as required by Rule

4(e) of the Federal Rules of Civil Procedure. In addition to filing a response to the

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motions, Plaintiff filed a “Motion for Finding of ‘Contempt’ and Sanctioning of

Defendants and Their Attorneys.” The Court dispensed with oral argument pursuant to

Eastern District of Michigan Local Rule 7.1(e)(2) on August 11, 2009. For the reasons

set forth below, the Court denies the motions.

I. Factual and Procedural Background

On June 19, 2009, Plaintiff, acting pro se, filed his complaint and an application to

proceed in forma pauperis. At the time of filing, the court clerk informed Plaintiff that,

upon the granting of his in forma pauperis application, the Court would issue summonses

directly to defendants. Satisfied that the summonses would be served by the Court but

believing that he separately needed to effect service of the complaint, Plaintiff proceeded

on or about June 19, 2009, to send by certified mail copies of the complaint to each

defendant. Plaintiff knew that he had the option, upon the granting of his in forma

pauperis application, to have the United States Marshals serve the complaints, but

believed he could save the taxpayers money by sending the complaints himself.

The complaints mailed by Plaintiff ultimately arrived at the offices of defendants’

respective employers. Although an individual signed for receipt of the packages at each

location, none of the defendants personally signed for the packages and they deny that the

individuals who did sign acted as agents “authorized by appointment or by law to receive

service of process” on their behalf. Fed. R. Civ. P. 4(e)(2)(C). Nonetheless, Plaintiff

filed a “Certificate of Service” as to each defendant on June 26, 2009, indicating that the

defendants had been served with a summons and complaint via certified mail, return

receipt requested on June 22, 2009. Plaintiff personally signed each certificate of service

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identifying himself as the “server.”

On June 29, 2009, this Court entered an order granting Plaintiff’s application to

proceed in forma pauperis. On July 1, 2009, the Court issued summonses for each of the

defendants. Plaintiff received a letter containing the Court’s order and the summonses on

July 10, 2009. Based on what the court clerk told him when he filed his complaint,

Plaintiff believed that the summonses had also been directly served on defendants by the

Court.

On July 10, 2009, the Brighton Defendants filed their motion to dismiss. Defendant

Mosier’s motion followed on July 20, 2009. Plaintiff filed his response and motion for

contempt and sanctions on July 27, 2009. The Brighton Defendants filed a response and

a reply to Plaintiff on July 31, 2009, and Mosier filed a response on August 6, 2009.

II. Service

In their separate motions defendants argue for dismissal on identical grounds. 

Collectively, defendants present three complaints regarding Plaintiff’s attempt to effect

service in this case: (1) Plaintiff failed to include a summons when he mailed the

complaint; (2) the mailed complaints were not personally accepted by defendants or their

authorized agents; and (3) Plaintiff—a party to this action—inappropriately attempted to

effect service himself. See Fed. R. Civ. P. 4(c), (e). Although the Court agrees that

Plaintiff’s attempts to effect service were defective, dismissal is not the appropriate

remedy in this case.

Contrary to defendants’ implication, the issue in this case is not simply whether

Plaintiff failed to perfect service. As indicated above, Plaintiff is proceeding pro se and

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has been granted in forma pauperis status. Federal law provides that “[t]he officers of the

court shall issue and serve all process, and perform all duties in such cases.” 28 U.S.C. §

1915(d). Similarly the Federal Rules of Civil Procedure require that the Court “order that

service be made by a United States marshal” in cases where “the plaintiff is authorized to

proceed in forma pauperis.” Fed. R. Civ. P. 4(c)(3). When dealing with a pro se plaintiff

proceeding in forma pauperis, then, “the court is obligated to issue plaintiff’s process to a

United States Marshal who must in turn effectuate service upon the defendants, thereby

relieving a plaintiff of the burden to serve process once reasonable steps have been taken

to identify for the court the defendants named in the complaint.”

Regardless of what Plaintiff may or may not have been doing in the meantime, the

deficient service of process in this case is ultimately the Court’s responsibility. Although

summonses were issued for defendants on July 1, 2009, the Court failed to order that a

United States Marshal effect service. Because it is the Court that has been derelict in its

duties, rather than Plaintiff, the Court denies defendants’ motions.

While this disposes of defendants’ motions, the fact remains that defendants have

yet to be properly served. The Court acknowledges that “the procedural requirement of

service of summons must be satisfied” before the Court can exercise personal jurisdiction

over a defendant. Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104,

108 S. Ct. 404, 409 (1987). As a consequence, actual knowledge of a lawsuit cannot cure

“technically defective service of process.” Friedman v. Estate of Presser, 929 F.2d 1151,

1156 (6th Cir. 1991). Nonetheless, it is also true that defendants can consent to less than

perfect service. See Omni, 484 U.S. at 104, 108 S. Ct. at 409. Furthermore, the strict

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approach to the service rules derives from “Congress’s shift from service by federal

marshals to private individuals in 1982”—a shift not implicated in this case because of

Plaintiff’s in forma pauperis status. In re City of Phila. Litig., 123 F.R.D. 515, 518 (E.D.

Pa. 1988). 

Looking toward a resolution of the service issue in this case, the Court notes that,

regardless of who signed for the certified mail, defendants admit to receiving a physical

copy of Plaintiff’s complaint. Additionally, the July 1, 2009, summonses are available to

defendants and their attorneys on the Court’s docket at docket entry 14. In the interest of

judicial efficiency, the Court suggests that defendants refer to those documents. If any

defendant insists that he or she be properly served by a United States Marshal, however,

that defendant shall so inform the Court and the Court will order service accordingly. 

III. Criminal Prosecution

As part of his response to defendants’ motions, Plaintiff demands that this Court

initiate a criminal investigation or prosecution regarding the conduct of defendants and

their attorneys. Plaintiff specifically alleges that defendants’ motions and the affidavits

filed in support thereof constitute federal crimes. Plaintiff asserts that this Court is

required to issue indictments and requests that the Court appoint a “special master” or

“special prosecutor” to assist him with the criminal aspects of his case.

As other courts have explained, this Court has no authority to honor Plaintiff’s

requests and demands. See In re Schied, No. 08-1895, slip op. at 2 (6th Cir. Aug. 5,

2008); Schied v. Daughtrey, No. 08-14944, 2009 WL 369484 at *3 (E.D. Mich. Feb. 10,

2009). “Generally, a private citizen has no authority to initiate a federal criminal

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prosecution.” Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam). Rather, the

discretion and “authority to initiate criminal complaints rests exclusively with state and

federal prosecutors.” Milgrom v. Burstein, 374 F. Supp. 2d 523, 529 (E.D. Ky. 2005). 

Therefore, Plaintiff’s requests for criminal investigations, prosecutions, and appointment

of a special master are denied. 

IV. Contempt and Sanctions

In addition to his demand for criminal prosecutions, Plaintiff filed a motion for

contempt and sanctions against defendants and their attorney’s pursuant to Rule 11 of the

Federal Rules of Civil Procedure. When a party moves for sanctions pursuant to Rule 11,

however, he or she must first give the opposing party an opportunity to correct his or her

allegedly sanctionable conduct. Fed. R. Civ. P. 11(c)(2). Plaintiff failed to provide

defendants and their attorneys such an opportunity in this case. Furthermore, the Court

concludes there is no basis for imposing sanctions.

Accordingly,

IT IS ORDERED that the Brighton Defendants’ Motion to Dismiss is DENIED.

IT IS FURTHER ORDERED that Defendant Joe D. Mosier’s Motion to Dismiss

is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Finding of Contempt and

Sanctioning of Defendants and Their Attorneys is DENIED.

IT IS FURTHER ORDERED that, if any defendant insists that service be made by

the United States Marshals, each such defendant shall so inform the Court by AUGUST

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28, 2009.

IT IS FURTHER ORDERED that defendants shall file an answer to the complaint

within 20 days of August 28, 2009, or the date of service, whichever is later.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

David Schied 

20075 Northville Place Drive 

North # 3120 

Northville, MI 48167 

Scott L. Mandel, Esq.

Roy H. Henley, Esq.

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