Robinson v. PennyMac Loan Services, LLC

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
MICHAEL ROBINSON, 	Case No. 	1:25-cv-00933
Plaintiff, 	Hon. 	Jane M. Beckering
U.S. District Judge
v.
PENNYMAC LOAN SERVICES, LLC,
Defendant.
/
REPORT AND RECOMMENDATION
I. 	Introduction
This Report and Recommendation (R. & R.) addresses the motion to dismiss
filed by Defendant PennyMac Loan Services, LLC, due to improper service of process
under Fed. R. Civ. P. 4(m). 	ECF No. 17. 	Further, this R. & R. addresses Plaintiff’s
motion to for leave to file a sur-reply. 	ECF No. 28.
Fed. R. Civ. P. 4(m) provides in part:
Time Limit for Service. 	If a defendant is not served within 90 days
after the complaint is filed, 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.
PennyMac argues that the Court should dismiss this action without prejudice
due to Plaintiff’s failure to properly serve the summons and complaint. 	Plaintiff
responds that he had no control over service of the summons and complaint after the
Court ordered the U.S. Marshals Service to perfect service on Plaintiff’s behalf.
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On October 24, 2025, the U.S. Marshals Service filed the following Process
Receipt and Return:
ECF No. 15, PageID.82. 	This Process Receipt and Return indicates that process was
executed by service on David Reiss, Call Center Supervisor. 	Id.
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II. 	Motion to Dismiss
The Court may dismiss a case for insufficient service of process under Fed. R.
Civ. P. 12(b)(5). 	Absent proper service of process, waiver, or forfeiture, a court may
not exercise personal jurisdiction over a named defendant. 	King v. Taylor, 694 F.3d
650, 655 (6th Cir. 2012). 	“The party on whose behalf service of process was made
has the burden of establishing its validity.” 	Metro. Alloys Corp. v. State Metals
Indus., Inc., 416 F. Supp. 2d 561, 563 (E.D. Mich. 2006). 	“In deciding a motion to
dismiss under Rule 12(b)(5), the court may refer to record evidence in determining
the sufficiency of service.” 	Id.
Plaintiff was required to serve Defendant PennyMac in accordance with Fed.
R. Civ. P. 4(h), “by delivering a copy of the summons and of the complaint to an officer,
a managing or general agent, or any other agent authorized by appointment or by
law to receive service of process.” 	Fed. R. Civ. P. 4(h)(B). 	In addition, Plaintiff was
required to mail a copy of the summons and complaint to each Defendant. 	Id.
The Process Receipt and Return indicates that service was made on David
Reisse, a Call Center Supervisor. 	PennyMac says that David Reisse is not an officer
or a managing or general agent of PennyMac, nor an individual authorized to receive
service 	of 	process 	on 	PennyMac’s 	behalf. 	ECF 	No. 	17, 	PageID.94. 	Further,
PennyMac says that service was not made at the location of PennyMac’s registered
office. 	Love v. Am. Postal Workers Union, 64 F. App’x 510, 511–12 (6th Cir. 2003)
(service of process on wrong person in an office at the wrong address for Defendant
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was insufficient). 	Further, Plaintiff did not send the required copy of the summons
and complaint to PennyMac.
Here, Plaintiff has not shown that service was proper. 	Rather, Plaintiff
argues that he was relieved of his obligation to comply with the Federal Rules of
Procedure as soon as the Court granted him in forma pauperis and ordered service
by the U.S. Marshals Service. 	Plaintiff asserts that he should be allowed to rely on
the U.S. Marshals Service’s act in serving the summons and complaint, or that he
should be allowed to rely on the fact that PennyMac received actual notice of the
lawsuit.
“Absent a showing of good cause to justify a failure to effect timely service, the
Federal Rules of Civil Procedure compel dismissal.” 	Byrd v. Stone, 94 F.3d 217, 219
(6th Cir. 1996). 	If Plaintiff can show good cause for his failure to effect service on
PennyMac, he may be entitled to an extension of time to serve his complaint. 	Fed.
R. Civ. P. 4(m). 	Generally, after a Plaintiff is authorized to proceed in forma
pauperis, the Plaintiff is relieved of the duty to effectuate service of process “once
reasonable steps have been taken to identify for the court defendants named in the
complaint.” 	Id. 	However, in forma pauperis status does not completely relieve a
plaintiff of the responsibility to assure that service is perfected. 	Jenkins v. Michigan
Dep’t of Corr., No. 5:14-CV-11812, 2015 WL 13742653, at *3 (E.D. Mich. Sept. 23,
2015), report and recommendation adopted, No. 14-CV-11812, 2015 WL 6327127
(E.D. Mich. Oct. 21, 2015).
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Arguably, Plaintiff should have known by October 24, 2025, when the Process
Receipt and Return was filed, that service was improper under Fed. R. Civ. 4(h)(B).
He could have provided an appropriate address for PennyMac to correct the faulty
service. 	Due to that failure, the Court could dismiss this lawsuit against PennyMac
without prejudice.
Nevertheless, The Jenkins Court recognized that the Court could grant an
extension even absent good cause. 	Id. at *4. 	The Sixth Circuit set forth the factors
that must be balanced before granting a discretionary extension:
(1) whether an extension of time would be well beyond the timely service
of 	process; 	(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
the court's refusal to extend time for service substantially prejudices the
plaintiff, i.e., would the plaintiff's lawsuit be time-barred; (5) whether
the plaintiff had made any good faith efforts to effect proper service of
process or was diligent in correcting any deficiencies; (6) whether the
plaintiff is a pro se litigant deserving of additional latitude to correct
defects in service of process; and (7) whether any equitable factors exist
that might be relevant to the unique circumstances of the case.
Staub v. Nietzel, No. 22-5384, 2023 WL 3059081, at *10 (6th Cir. Apr. 24, 2023)
(setting out factors for a discretionary extension of time for service of process).
An extension of time is now beyond the timely service of process period.
However, PennyMac would not be prejudiced and has actual notice of the lawsuit.
Similarly, Plaintiff has not set forth “substantial prejudice” if the Court refuses to
extend the time for service of process. 	Further, Plaintiff has failed to set forth any
basis for the Court to conclude that he was diligent in correcting the service error.
Nevertheless, there is no indication that Plaintiff is an experienced litigant and for
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this reason, combined with the lack of prejudice to PennyMac and notice of this
lawsuit, the Court may give Plaintiff additional latitude in correcting the service of
process defect.
III. 	Recommendation
Therefore, it is respectfully recommended that the Court DENY Defendant
PennyMac’s motion to dismiss this lawsuit due to the failure to properly serve
PennyMac with a summons and complaint. 	The Court could determine that
Plaintiff failed to show good cause for an extension of time to correct the defective
service of process; however, it is respectively recommended that the Court exercise
its discretion and GRANT Plaintiff 45 days to properly serve Defendant PennyMac
with a summons and complaint.
It further is recommended that the Court GRANT Plaintiff’s motion to file a
sur-reply.
NOTICE TO PARTIES: 	Objections to this Report and Recommendation must
be served on opposing parties and filed with the Clerk of the Court within fourteen
(14) days of receipt of this Report and Recommendation. 	28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b); W.D. Mich. LCivR 72.3(b). 	Failure to file timely objections
constitutes a waiver of any further right to appeal. 	United States v. Walters, 638
F.2d 947 (6th Cir. 1981). 	See also Thomas v. Arn, 474 U.S. 140 (1985).
Dated: 	March 19, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE
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