REPORT AND RECOMMENDATION TO DENY WITHOUT PREJUDICE DEFENDANT EQUIFAX INFORMATION SERVICES LLC'S MOTION TO DISMISS [15]

DAVID R. GRAND, Magistrate Judge.

On August 11, 2015, pro se Plaintiff Michael Garrison filed a complaint against Defendant Equifax Information Services LLC ("Equifax")1 (and a slew of other Defendants) alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (the "FCRA") and intentional infliction of emotional distress under Michigan state law. [1]. Garrison's Application to Proceed in District Court Without Prepaying Fees or Costs (or In Forma Pauperis) was approved by District Judge Terrence G. Berg on August 31, 2015. [4]. On April 28, 2016, Judge Berg referred this case to the undersigned for all pretrial purposes. [29]. Before the Court is Equifax's Motion to Dismiss. [15]. Garrison filed a response [24], and Equifax filed a reply [27]. Having reviewed the pleadings and other papers on file, the Court finds that the facts and legal issues are adequately presented in the parties' briefs and on the record, and it declines to order a hearing at this time.

A. Report

In its motion, Equifax requests that the Court dismiss Garrison's complaint because Garrison "did not effectuate proper service of process under either the Federal Rules of Civil Procedure or rules for service in Michigan." [15 at 1]. Equifax argues that Garrison previously filed three lawsuits against Equifax, so Garrison "is aware of the proper method to serve Equifax." [15 at 1, 3-4].

The requirements for securing proper service are found in Rule 4. Fed. R. Civ. P. 4(c)(1) provides that "[t]he plaintiff is responsible for having the summons and complaint served" within ninety days after filing the complaint, as required by Rule 4(m).2 Rule 4(c)(3) provides that "[a]t the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court." The court must order this if both the plaintiff requests it and the plaintiff is authorized to proceed in forma pauperis. [Id.].

Regarding the appropriate method of service, Rule 4(h)(1) provides that a domestic corporation must be served by either following the law of the state where the district court is located or where service is made, as required by Rule 4(e)(1); or by delivering a copy of the summons and complaint "to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process." Furthermore, "if the agent is one authorized by statute and the statute so requires," a copy of the summons and complaint must also be mailed to the defendant. Fed. R. Civ. P. 4(h)(1). Michigan state law provides that a domestic corporation that is doing business may be served by: (1) serving the summons and complaint on an officer or the resident agent; or (2) serving the summons and complaint on a director, trustee, or person in charge of an office or business establishment of the corporation, and sending the summons and complaint by registered mail, addressed to the principal office of the corporation. M.C.R. 2.105(D). If the corporation has "failed to appoint and maintain a resident agent or to file a certificate of that appointment, as required by law," then the summons and complaint should be sent by registered mail to the corporation or to an appropriate corporation officer, and to the Corporate Division of the Michigan Bureau of Commercial Services. [Id.].

Equifax attached to its motion a copy of the envelope Garrison used to mail it a copy of the summons and complaint. [15, Ex. A]. The envelope shows that it was sent via first-class mail to "Equifax Info. Solutions" at P.O. Box 740256, Atlanta, GA 30348. [Id.]. In doing so, Garrison did not comply with Rule 4. On the envelope he mailed to Equifax, Garrison did not name an officer or agent authorized to receive service of process. Garrison's first-class mailing did not comply with Michigan state law either. In addition to not naming an officer or resident agent, the envelope did not name a director, trustee, or person in charge of an Equifax office or business establishment. And Garrison did not use registered mail to send Equifax the summons and complaint to its principal office. In the likelihood that Equifax had not appointed a resident agent or filed its certificate of appointment, Garrison also did not take the steps necessary to serve Equifax properly: Garrison did not send the summons and complaint by registered mail to Equifax or to the appropriate corporation officer, and he did not send the summons and complaint to the Corporate Division of the Michigan Bureau of Commercial Services.

Rule 4(l)(1) requires that proof of service be made to the court unless service is waived. The server's affidavit constitutes proof of service, except where service was carried out by a U.S. Marshal or deputy marshal. [Id.]. Here, Equifax has not waived service. And service was not carried out by a U.S. Marshal or deputy marshal because Garrison did not request such service. [4]. Also, the server's affidavit has not been provided as proof of service. Furthermore, in his response to Equifax's motion to dismiss, Garrison failed to include evidence of proper service. [24]. Instead of showing the Court that he had effectuated proper service on Equifax, Garrison simply attacks Equifax's arguments. [Id.]. Interestingly, at no point does Garrison argue in his response that he did, in fact, execute proper service on Equifax. [Id.].

Regardless, the Court finds Garrison's arguments to be without merit. [24]. Garrison alleges that Equifax did not describe "with particularity" how the service of process failed to comply with the procedural requirements. [24 at 3]. But in its motion to dismiss, after laying out the procedural requirements, Equifax explains that Garrison "attempted service of process by placing a copy of the Complaint and summons in the United States mail to a post office box in Atlanta, GA." [15 at 12]. As noted above, Equifax included with its motion a copy of the envelope it received from Garrison, which corroborates its assertion. [15, Ex. A]. The Court finds that Equifax's motion and supporting exhibit make sufficiently clear its argument as to why Garrison failed to meet the procedural requirements for effectuating valid service of process.

This brings the Court to Rule 4(m), which provides that if a plaintiff fails to timely serve his complaint, "the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Thus, even in the absence of "good cause," the Court retains discretion under Rule 4(m) to either dismiss the claims against Equifax without prejudice or order that service be made upon Equifax within a specified time. As explained in Bradford v. Bracken County, 767 F.Supp.2d 740, 753 (E.D. Ky. 2011):

Garrison did not show "good cause" for failing to properly serve Equifax, and the Court is thus not required to "extend the time for service." It must, however, determine whether to exercise its discretion under Rule 4(m) and grant Garrison additional time to complete proper service. In making that determination, the Court considers:

Slenzka v. Landstar Ranger, Inc., 204 F.R.D. 322, 326 (E.D. Mich. 2001).

In addition to these factors, the Court is guided by Fed. R. Civ. P. 1, which provides that it (and, after the recent amendments, the parties) should construe, administer, and employ the Federal Rules of Civil Procedure "to secure the just, speedy, and inexpensive determination of every action and proceeding."

Here, the Court finds that, overall, the above five factors, as well as Rule 1's considerations, mitigate in favor of granting Garrison a brief extension of time to properly serve Equifax. First, the Court notes that Garrison filed his complaint in August 2015, and Equifax filed its instant motion less than two months later. That more time has since elapsed is not Garrison's fault, and he does not require a significant extension of time to properly serve Equifax. Second (and third), Equifax would not be prejudiced by a short extension of time, in large part because it has had actual notice of Garrison's lawsuit for almost a year. Fourth, a dismissal without prejudice could potentially prejudice Garrison's rights given the FCRA's twoyear statute of limitations and Garrison's allegation that the wrongful acts began in November 2014. [1 at 2]. Fifth, although Garrison should have known that merely mailing the summons and complaint to Equifax would not constitute proper service, his conduct is not so egregious as to cause the Court not to exercise its discretion to afford him an opportunity to correct that deficiency.3 Finally, the Court notes that other Defendants, who apparently received their respective summonses and complaints in the same manner as Equifax, have filed appearances in this action.4 With there already being this live federal court action, the most efficient course is to permit Garrison a brief opportunity — 30 days — to properly serve Equifax.

B. Recommendation

For the reasons stated above, IT IS RECOMMENDED that Equifax's Motion to Dismiss [15] be DENIED WITHOUT PREJUDICE and that Garrison be given 30 days to properly serve Defendant Equifax, along with a warning that his failure to do so would be grounds for dismissing without prejudice his claims against that Defendant.