Order Dismissing Case — 1800 Michigan Avenue v. SBA (E.D. Mich.)

Summary

An order dismissing the case in a suit by three LLCs operating locations of the restaurant Bobcat Bonnie's against the SBA and Administrator Isabella Casillas Guzman, Case No. 2:21-cv-12069, in the U.S. District Court for the Eastern District of Michigan, dated February 16, 2022 and filed as ECF No. 9. The plaintiffs sued on September 3, 2021 over the SBA's failure to disburse Restaurant Revitalization Fund money, seeking declaratory relief and damages on an equitable estoppel claim. The court finds that the plaintiffs served the defendants only by certified mail, never served the United States Attorney or the Attorney General as Rule 4(i) requires, and did not respond to a show cause order. It dismisses the case without prejudice. The 3-page order is signed by United States District Judge Stephen J. Murphy, III.

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Cite this document

“Order Dismissing Case — 1800 Michigan Avenue v. SBA (E.D. Mich.).” Original at ecf.mied.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-21-cv-12069-dkt-9-e-d-mich-27d0017e4d/, SHA-256 d18801411bae32e08eeeb888b6d0e5e99373713f560cc1d844fb99eb09844b09.

Full text

Case 2:21-cv-12069-SJM-DRG ECF No. 9, PageID.31 Filed 02/16/22 Page 1 of 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

1800 MICHIGAN AVENUE, et al.,
Case No. 2:21-cv-12069
Plaintiffs,
HONORABLE STEPHEN J. MURPHY, III
v.

UNITED STATES SMALL BUSINESS
ASSOCIATION and ISABELLA
CASILLAS GUZMAN,

Defendants.
/

ORDER DISMISSING CASE

On September 3, 2021, Plaintiffs, three LLCs that constitute three locations of

the local restaurant Bobcat Bonnie’s, sued the United States Small Business

Administration (“SBA”) and Administrator Isabella Casillas Guzman for failing to

disperse COVID-19 relief funds to Plaintiffs from the Restaurant Revitalization

Fund. ECF 1. Plaintiffs’ equitable estoppel claim sought both declaratory relief and

monetary damages. Id. at 3–4.

Under Federal Rule of Civil Procedure 4(m), Plaintiffs had to effectuate service

no later than December 2021. If Plaintiffs failed to effectuate service, the Court could

dismiss the case without prejudice unless Plaintiffs showed good cause for the failure.

Fed. R. Civ. P. 4(m).

Plaintiffs filed a certificate of service on the docket that showed Plaintiffs had

served both Defendants via certified mail in November 2021. ECF 5. Plaintiffs took

no further action and the time for Defendants to respond had long passed. See Fed.

1
Case 2:21-cv-12069-SJM-DRG ECF No. 9, PageID.32 Filed 02/16/22 Page 2 of 3

R. Civ. P. 12(a)(2). Given the inactivity, the Court issued an order to show cause as

to why the case should not be dismissed for Plaintiffs’ failure to prosecute the matter.

ECF 6. Plaintiffs did not timely respond to the show cause order, but Plaintiffs did

request that the Clerk of the Court enter a default with respect to Defendants. ECF

7. The Clerk of the Court denied the request because Plaintiffs failed to comply with

Rule 4(i). ECF 8.

Because the SBA is a United States agency and the suit is against

Administrator Guzman in an official capacity as an officer of the SBA, ECF 1, PgID

1–2, Plaintiff had to comply with Rule 4(i)(2) to properly serve Defendants rather

than Rule 4(c)’s general service of process procedures. Under Rule 4(i)(2), “[t]o serve

a United States agency or corporation, or a United States officer . . . sued only in an

official capacity, a party must serve the United States and also send a copy of the

summons and of the complaint by registered or certified mail to the agency,

corporation, officer, or employee.” (emphasis added). Proper service of the United

States entails sending a copy of the summons and complaint by certified mail to both

“the civil-process clerk at the United States attorney’s office” and “to the Attorney

General of the United States at Washington, D.C.” Fed. R. Civ. P. 4(i)(1). In lieu of

sending a copy by certified mail “to the civil-process clerk at the United States

attorney’s office,” a plaintiff could also “deliver a copy of the summons and of the

complaint to the United States attorney for the district where the action is brought,”

but a mailing must still be sent to the Attorney General. Id. Courts must allow a

plaintiff additional time to remedy imperfect service under Rule 4(i)(2) only if the

2
Case 2:21-cv-12069-SJM-DRG ECF No. 9, PageID.33 Filed 02/16/22 Page 3 of 3

plaintiff has “served either the United States attorney or the Attorney General of the

United States.” Fed. R. Civ. P. 4(i)(4).

Here, Plaintiffs did not demonstrate service upon either the Attorney General

or the United States Attorney for the Eastern District of Michigan. See ECF 5.

Plaintiff therefore failed to serve the United States. And Plaintiffs’ failure does not

require the Court to extend time to remedy the imperfect service. Fed. R. Civ. P.

4(i)(4)(A). Because Plaintiffs failed to properly serve Defendants within the time

allowed under Rule 4(m) and failed to show good cause by not responding to the

Court’s show cause order, the Court will dismiss the case without prejudice. See also

E.D. Mich. L.R. 41.2.

WHEREFORE, it is hereby ORDERED that the case is DISMISSED

WITHOUT PREJUDICE.

SO ORDERED.

s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: February 16, 2022

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 16, 2022, by electronic and/or ordinary mail.

s/ David P. Parker
Case Manager

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