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Michael R. Tuttle v. Serv U Success

September 8, 2011

MICHAEL R. TUTTLE, PLAINTIFF,
v.
SERV U SUCCESS, DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

Thursday, 08 September, 2011 09:59:15 AM

Clerk, U.S. District Court, ILCD

REPORT AND RECOMMENDATION

This matter comes before the Court on the Motion to Dismiss (d/e 11) (Motion) Defendant Thrifty Retail Services, LLC d/b/a Serv-U-Success (Thrifty). The Motion is fully briefed, and pursuant to Local Rule 72.1, has been referred for a Report and Recommendation. Thrifty moves to dismiss for insufficient service and for failure to state a claim. Fed. R. Civ. P. 12(b)(4)-(b)(6). After carefully considering all of the submissions of the parties, and pursuant to 28 U.S.C. § 636(b)(1)(B), this Court recommends that the Motion be ALLOWED in part. Thrifty's request to dismiss for insufficient service should be allowed in part, but the request to dismiss for failure to state a claim should be denied. The current service should be quashed, but pro se Plaintiff Michael Tuttle should be given leave to file an amended complaint naming Thrifty and IROL, Inc., f/k/a Serv-U-Success, Inc. (IROL), as Defendants; and to serve on these two Defendants.

STATEMENT OF FACTS

Tuttle was born on January 19, 1960. Complaint (d/e 1), attached Charge of Discrimination. He worked for IROL, then known as Serv-U-Success, Inc, beginning in March 2007. Tuttle worked for IROL as a private label distributor at Meijer store No. 207 in Normal, Illinois. Tuttle alleges that sales increased over thirty percent as soon as he took the job full time. He alleges that his supervisor nicknamed him "Golden Boy". Tuttle was told he was a great role model and would be a supervisor one day. Tuttle received a performance bonus as late as December 18, 2009. Tuttle alleges that IROL subjected him to efforts to force him to quit beginning in September 2008. He was subjected to vague and dishonest writeups. He was ultimately terminated on January 8, 2010. He was replaced by a nineteen-year old unqualified employee. Tuttle alleges he was fired because of his age, in violation of the Age Discrimination in Employment Act (ADEA). Complaint, attached Statement Addressed to the District Court; see 29 U.S.C. § 623.

Tuttle filed this action pro se on December 28, 2010. He named Serve-U-Success as the Defendant. Complaint, at 4. He initially did not serve a summons and the Complaint. On April 28, 2011, the District Court directed Tuttle to effect service. Text Order entered April 28, 2011. Tuttle secured a summons dated May 4, 2011, addressed to:

Serv U Success 4695 Helena Dr. SW Grandville, Michigan 49418-2514 Summons (d/e 3). The Return of Service (d/e 5) was filed on July 7, 2011. The process server Tom Palasek declared under penalty of perjury that he served the Summons and Complaint on May 10, 2011, on "Manger" an agent designated to accept service of process for "Serv U Success". Id.

On July 12, 2011, Tuttle filed a Motion for Default Judgment (d/e 7) because no response had been filed. On July 25, 2011, Thrifty filed the Motion. As a result of the filing of the Motion, the Motion for Default Judgment was denied as moot. Text Order entered July 26, 2011.

Thrifty filed the affidavit of John Winters in support of the Motion. Memorandum in Support of Motion to Dismiss (d/e 12), Exhibit 1, Affidavit of John Winters (Winters Affidavit). Winters states that he is Thrifty's Treasurer. He states that Thrifty bought the right to the name Serv-U-Success from IROL on October 12, 2010. He states that prior to the sale, IROL was known as Serv-U-Success, Inc. Winters Affidavit, ¶¶ 1-4. Winters states that Thrifty has never employed Tuttle.

Winters also states that Thrifty was not served with the Summons or Complaint. He states that he was not served with a Summons and Complaint. Winters states that he asked all persons at Thrifty who would be authorized to accept service of process and none of them recall ever being served with the Summons and Complaint. He states that he, "has been unable to locate any individual who might even appear to outsiders as a 'Manager' who has been personally served with a Summons and/or Complaint in this matter." Id. ¶ 8. Winters checked the mail records and determined that the Summons and Complaint was not received by mail. Finally he determined that no one named "Manger" ever worked for Thrifty. Id. ¶¶ 9-10.

Winters also attached copies of various documents publicly available through the State of Michigan website, www.michigan.gov. These documents show that Thrifty is a limited liability company organized under the laws of Michigan. Thrifty's resident agent for service of process is The Corporation Company, 30600 Telegraph Road, Suite 2345, Bingham Farms, Michigan 48025. Winters Affidavit, Exhibit B, Articles of Organization, Article IV. The documents also state that Thrifty is operating under the assumed name of Serv-U-Success. Winters Affidavit, Exhibit A, Certificate of Assumed Name.

The Court may take judicial notice of these types of public records and may independently search government web sites for such public records. See Belleville Catering Co. v. Champaign Market Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003) ("[C]counsel could have done what the court did: use the Internet" to research state corporation information). Those records show that a person named Harold Voorhees, Jr. is the resident agent and President of IROL, and John Winters is the Vice President and Treasurer of IROL. Annual Report of IROL, Inc., dated May 12, 2011, viewed on September 1, 2011 (a copy of which is attached to this Report and Recommendation). Voorhees' address is 4695 Helena, Grandville, Michigan 49418. Id. The records also show that Harold Voorhees, Jr. is ...


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