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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE TAUBMAN COMPANY LIMITED
PARTNERSHIP,
 
Plaintiff, 
 
 Civil Action No. 01-72987
v.
 Honorable Lawrence P. Zatkoff
WEBFEATS and HENRY MISHKOFF, Magistrate Judge Komives
 
Defendants. 


BRIEF IN SUPPORT OF
DEFENDANTS' EXPEDITED MOTION
TO DISMISS PLAINTIFF'S COMPLAINT

On August 7, 2001, Plaintiff entered a Complaint against Defendants in this Court. As Plaintiff has stated several times in documents relating to this case (for example, see Exhibit A, Plaintiff's letter to Defendants of September 5, 2001), Plaintiff claims to have effected a waiver of service via telephone. Plaintiff has not effected (and has made no effort to effect) waiver of service in writing, as required by the Federal Rules of Civil Procedure:

    The notice and request
    (A) shall be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent (or other agent authorized by appointment or law to receive service of process) of a defendant subject to service under subdivision (h); Fed. R. Civ. P. 4(d)(2)

The Federal Rules of Civil Procedure also require Plaintiff to properly notify Defendants "of the consequences of compliance and of a failure to comply with the request":

    [The notice and request]
    (D) shall inform the defendant, by means of a text prescribed in an official form promulgated pursuant to Rule 84, of the consequences of compliance and of a failure to comply with the request; Fed. R. Civ. P. 4(d)(2)

Plaintiff failed to inform Defendant of said consequences in writing either by means of the specifically prescribed form or by any other written means.

The Federal Rules of Civil Procedure also require that Plaintiff allow Defendant at least 30 days to return the waiver:

    [The notice and request]
    (F) shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent... Fed. R. Civ. P. 4(d)(2)

However, in direct opposition to the intent of this Rule, Plaintiff pressured Defendants to agree to waive service by telephone, informing Defendants that failure to agree would result in Defendants having to bear the cost of process service. The Rule clearly is designed to allow Defendants to make a reasoned and unhurried decision; however, Plaintiff coerced Defendants into an immediate verbal agreement, without allowing Defendants the "reasonable time" to which Defendants are entitled.

By its own admission (Exhibit A), Plaintiff has not followed anything resembling the procedure demanded by the Federal Rules of Civil Procedure. It therefore follows that proper service of the Complaint has never been effected, which means that no proper Complaint is before the Court at this time.

In light of these facts, Defendants respectfully urge the Court to dismiss the Complaint and to vacate the Preliminary Injunction that the Court has imposed upon Defendants.

Respectfully submitted,

Henry Mishkoff
WebFeats
2661 Midway Road, #224-225
Carrollton, TX 75006
972.931.5421

Defendants (pro se)

Dated: November 15, 2001


Next: Motion To Change Venue (Take 2)

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