Fedorova v. Foley
Fedorova v. Foley
2023 WL 5016652 (W.D. Mich. 2023)
April 26, 2023
Kent, Ray, United States Magistrate Judge
Summary
JPMorgan Chase Bank, N.A. and its chief executive officer Mr. Jamie Dimon entered a special appearance to file an “Objection and Motion to Quash Invalid Subpoena” and other documents. The Court dismissed defendant Dimon without prejudice and Chase appears to contest the sufficiency of service, but did not file a motion to dismiss for insufficient service of process.
Elena FEDOROVA, Plaintiff,
v.
William P. FOLEY, II, et al., Defendants
v.
William P. FOLEY, II, et al., Defendants
Case No. 1:22-cv-991
United States District Court, W.D. Michigan, Southern Division
Signed April 26, 2023
Counsel
Elena Fedorova, Hasting, MI, Pro se.Leah Regina Imbrogno, Raymond McVeigh, Foley & Lardner LLP (Detroit), Detroit, MI, Matthew J. Lund, Troutman Pepper Hamilton Sanders LLP (MI), Southfield, MI, Timothy J. Kramer, Abbott Nicholson PC, Troy, MI, Eric D. Martin, Bryan Cave LLP (MO), St. Louis, MO, Robert W. Brunner, Bryan Cave Leighton Paisner LLP, Chicago, IL, Mark John Magyar, Dykema Gossett PLLC (Lansing), Lansing, MI, Amy Sabbota Gottlieb, Dickinson Wright PLLC (Troy), Troy, MI, for Defendants.
Kent, Ray, United States Magistrate Judge
ORDER
*1 This matter is now before the Court on three matters filed by defendants JPMorgan Chase Bank, N.A. (“Chase”) and its chief executive officer Mr. Jamie Dimon (“Dimon”). Defendants Chase and Dimon previously entered a special appearance on November 28, 2022, to file an “Objection and Motion to Quash Invalid Subpoena” (referred to as the “Motion to quash subpoena”) (ECF No. 21). Next, defendants filed a “Provisional motion for extension of time to respond to complaint until 30 days after proper service and compliance with Fed. R. Civ. P. 4(l)” (referred to as the “Provisional Motion”) (ECF No. 61). Finally, defendants filed a paper which appears as an “Objection” on the docket sheet and is entitled “JPMorgan Chase Bank, N.A.’s and Mr. Jamie Dimon's response to plaintiff's proof of service and summons” (referred to as the “Objection/Response”) (ECF No. 92). In this filing, defendants refer to the summons which plaintiff “served by certified mail on December 9, 2022” (see ECF No. 69, PageID.593).
I. The Court has dismissed defendant Dimon without prejudice
On December 29, 2022, the Court entered a Notice of Impending Dismissal because more than 60 days had passed and the vast majority of defendants named in plaintiff's complaint had not been served. See Notice (ECF No. 46). The Notice included both defendants Chase and Dimon. Id. at PageID.509. Defendant Dimon was dismissed without prejudice on February 17, 2023, pursuant to Fed. R. Civ. P. 4(m). See Order (ECF No. 98, PageID.809).
II. Chase’ Provisional Motion and Objection/Response related to service of summons and complaint
While this Court's Notice of Impending Dismissal identified Chase as an unserved defendant, it did not dismiss Chase. Between the time that the Court entered the Notice (December 29, 2022) (ECF No. 46) and the time that the Court entered the order of dismissal (February 17, 2023) (ECF No. 98), plaintiff filed an executed summons against Chase (January 18, 2023) (ECF No. 69, PageID.593) (stating “served by certified mail on December 9, 2022”).
In the present motion, Chase admits that it received a copy of the summons and complaint but appears to contest the sufficiency of service:
2. On December 1, 2022, Plaintiff caused to be issued a summons to Defendant Chase. (See Docket Text Entry for 12/1/22.) No summons has issued as to Mr. Dimon.
3. As of filing this motion, Chase has no record or indication of service by Plaintiff upon Mr. Dimon. As to Chase, while Chase recently received a copy of the summons and complaint via regular U.S. Mail, Chase has no record of being served as required by Rule 4(h) [“Serving a Corporation, Partnership, or Association”].
Provisional Motion (ECF No. 61, PageID.572). In support of its motion, Chase states that plaintiff has a pattern of not following court rules:
Plaintiff, acting in pro per, has a history in this and other lawsuits in other jurisdictions, including Illinois, of vexatious litigation tactics and filings which do not comport with applicable rules. This history causes concern for Defendants Chase and Mr. Dimon that Plaintiff may improvidently seek default entries or other relief against Defendants without having properly served Defendants or filing the Proof of Service required under Rule 4(l) with sufficient time for Defendants to respond, thereby necessitating further motion practice and litigation.
*2 Id. at PageID.573. While Chase refers to plaintiff's “history,” it does not identify plaintiff's previous lawsuits or specific instances of “vexatious litigation tactics.”
Based on its filings, while Chase appears to contest the validity of the service, it did not file a motion to dismiss for insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(5) which provides that:
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: ... (5) insufficient service of process[.]
See Rose v. Bersa, 327 F.R.D. 628, 632 (S.D. Ohio 2018) (“A Rule 12(b)(5) motion challenges the mode of serving the summons and complaint.”) (internal quotation marks omitted). Rather, Chase filed the “provisional motion” which seeks an extension of time to answer at an indeterminate point in the future, i.e., “thirty days after Plaintiff has properly served the complaint and Plaintiff has complied with Rule 4 in all respects.” Provisional Motion at PageID.573. In short, defendants’ provisional motion does not raise the issue of insufficient service of process or seek to dismiss or quash the summons allegedly served on December 9, 2022.
Chase also filed the Objection/Response (ECF No. 92) to plaintiff's allegedly defective proof of service (ECF No.69) in which it asks the Court for the following relief:
(1) grant their motion for extension; (2) deem Plaintiff's certified mail service to Chase and execution of proof of service deficient, (3) deny Plaintiff's request for an extension of time to serve summonses (RE 66) because Plaintiff lacks good cause and her vexatious conduct to date warrants denial, and she states no plausible basis for including Chase or Mr. Dimon in this suit; and (4) dismiss the complaint against Chase and Mr. Dimon under the Court's Notice of Impending Dismissal. (RE 46.)
Objection and Response at PageID.789-790. The Court does not grant this type of relief in an “Objection” or a “Response.” “A request for a court order must be made by motion.” Fed. R. Civ. P. 7. In addition, “[a]ll motions, except those made orally during a hearing or trial, shall be accompanied by a supporting brief” and “[a]ll briefs filed in support of or in opposition to any motion shall contain a concise statement of the reasons in support of the party's position and shall cite all applicable federal rules of procedure, all applicable local rules, and the other authorities upon which the party relies.” W.D. Mich. LCivR 7.1(a).
The appropriate method for addressing insufficient service of process is by filing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5). See Rose, 327 F.R.D. at 632 (internal quotation marks omitted). In resolving a motion to dismiss for ineffective service under Fed. R. Civ. P. 12(b)(5), the court may construe such a motion as a motion to quash service. See Young's Trading Company v. Fancy Import, Inc., 222 F.R.D. 341, 342-43 (W.D. Tenn. 2004) (“[w]here service is ineffective, a court has discretion to either dismiss the action or quash service and retain the case”). In this regard, the Sixth Circuit has expressed a preference to treat the first motion for improper service as a motion to quash. See Stern v. Beer, 200 F.2d 794, 795 (6th Cir. 1953) (“if the first service of process is ineffective, a motion to dismiss should not be granted, but the case should be retained for proper service later”). See also, Daley v. ALIA, 105 F.R.D. 87, 89 (E.D. N.Y. 1985) (“[w]hen the gravamen of defendant's motion is insufficiency of process, however, the motion must be treated as one to quash service, with leave to plaintiffs to attempt valid service”).
*3 For all of these reasons, defendant Chase's Provisional Motion (ECF No. 61) and Objection/Response (ECF No. 92) will be denied. If defendant Chase contests the service of the summons and complaint, then it should file a motion to dismiss for insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(5).
III. Motion to quash subpoena
Finally, defendant Chase seeks to quash a subpoena from plaintiff to produce documents. By way of background, plaintiff filed this lawsuit on October 24, 2022. See Compl. (ECF No. 1). Plaintiff did not obtain a summons for Chase at that time. Rather, about three weeks after filing the lawsuit (November 14, 2022), the Clerk's Office issued plaintiff a subpoena which commanded Chase to produce the following documents to her at 206 W. Court Street, Suite 101, Hastings, Michigan on November 28, 2022, at 12:00 p.m.:
(1) Copy of wire transfer receipt of payment, ACH, Cashier's Check for $135,000 to JP Morgan on behalf of Fedorova for 5757 Saggio Road Hastings MI 49508. (2) documents to prove ownership of account 818073923 ADA 021000021 (3) documents to prove ownership of account for check: 103483949, R 021309379[.]
The decision to quash a subpoena is within the sound discretion of the district court. See Hill v. Homeward Residential, Inc., 799 F.3d 544, 552 (6th Cir. 2015). Fed. R. Civ. P. 45 provides a procedure for parties to serve third parties with subpoenas to obtain documents. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30 n. 16 (1984) (“Under Rules 30 and 31, a litigant may depose a third party by oral or written examination. The litigant can compel the third party to be deposed and to produce tangible evidence at the deposition by serving the third party with a subpoena pursuant to Rule 45.”).
It is improper for a plaintiff to circumvent the discovery process for production of documents set out in Fed. R. Civ. P. 34 by serving a defendant with a subpoena to produce documents pursuant to Fed. R. Civ. P. 45.
Fed. R. Civ. P. 34 provides a procedure for obtaining documents from a party by serving a request to produce documents. See Fed. R. Civ. P. 34(a). As a general rule, subpoenas issued under Fed. R. Civ. P. 45 are not meant to serve as discovery tools among parties. Swartout v. Thomas LaNore, P.A., No. 1:07-cv-315, 2009 WL 1770540 at *2 (W.D. Mich. June 18, 2009); Mazur v. Wal-Mart Stores, Inc., No. 5:05-cv-85, 2006 WL 7344548 at *2 (W.D. Mich. Apr. 19, 2006). See also, Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 100 (D. Mass. 1996) (“it is apparent to this Court that discovery of documents from a party, as distinct from a non-party, is not accomplished pursuant to Rule 45”) (emphasis in original); Roofers Local 149 Sec. Benefit Trust Fund v. Milbrand Roofing Group., Inc., No. 05-CV-60218, 2007 WL 2421479 at *1 (E.D. Mich. Aug. 22, 2007) (“a party cannot use a subpoena under Rule 45 as a substitute to Rule 34 for the production of documents and things from another party to the litigation”)[.]
Marvin v. Capital One, No. 1:15-cv-1310, 2016 WL 8468059 at *1 (W.D. Mich. Aug. 16, 2016).
*4 As the court further explained in Stokes v. Xerox Corporation, No. 05-CV-71683-DT, 2006 WL 6686584 (E.D. Mich. Oct. 5, 2006):
The leading treatises agree that although Rule 45 may apply to both parties and nonparties, resort to Rule 45 should not be allowed when it circumvents the requirements and protections of Rule 34 for the production of documents belonging to a party... “Although Rule 45 is not limited by its terms to nonparties, it should not be used to obtain pretrial production of documents or things, or inspection of premises, from a party in circumvention of discovery rules or orders. Discovery from a party, as distinct from a nonparty, is governed by Rule 34, not Rule 45.” 7 Moore's Federal Practice § 34.02[5][e] (3d ed.) (citing Hasbro, Inc. v. Serafino, 168 F.R.D. 99 (D.Mass.1996)).
Stokes, 2006 WL 6686584 at *3.
Here, plaintiff served a subpoena on defendant Chase weeks before the Clerk's Office issued a summons for Chase. Plaintiff's conduct of seeking to subpoena records from Chase before serving Chase with a summons and complaint circumvented the discovery process as set forth in Fed. R. Civ. P. 16, 26 and 34. Accordingly, Chase's motion to quash the subpoena (ECF No. 21) will be granted.
IV. Conclusion
Accordingly, for the reasons stated above,
IT IS ORDERED that defendant Chase's Provisional Motion (ECF No. 61) and Objection/Response (ECF No. 92) are DENIED.
IT IS FURTHER ORDERED that if defendant Chase contests the service of the summons and complaint then it must file a motion to dismiss for insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(5) by no later than May 12, 2023. If Chase does not contest the service of the summons and complaint, then it must file an answer or other response by no later than May 12, 2023.
IT IS FURTHER ORDERED that Chase's motion to quash the subpoena (ECF No. 21) is GRANTED.