Nixon v. Detroit, City of et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH NIXON,
Plaintiff, 	Case No. 2:23-cv-11547
v. 	Honorable Susan K. DeClercq
United States District Judge
MOISES JIMENEZ, et al.,
Defendants.
___________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR ALTERNATIVE SERVICE (ECF No. 111)
On June 28, 2023, Plaintiff Kenneth Nixon sued Detroit Police Department
Officers, 	alleging 	constitutional 	violations 	in 	connection 	with 	Defendants’
investigation and prosecution of Nixon for an arson-murder he did not commit. ECF
No. 1. For over a year, the parties have engaged in discovery. See ECF No. 72. As
part of that process, Defendants assert that, without success, they “have made
numerous attempts to contact and serve” a subpoena on a witness, Charmetria James,
identified by both parties as someone they may call to testify at trial. ECF No. 111
at 	PageID.3649. 	Now, 	Defendants 	move 	this 	Court 	for 	an 	order 	permitting
alternative service. ECF No. 111.
Because the Defendants have made repeated attempts to serve James, who
appears to be evading service, this Court will grant their motion for alternative
Case 2:23-cv-11547-SKD-EAS ECF No. 114, PageID.<pageID> Filed 12/05/25 Page 1 of 4

- 2 -
service.
As a general rule, parties must serve a subpoena by “delivering a copy to the
named person.” F ED. R. CIV. P. 45(b). But courts may permit service by alternative
means when a “party seeking evidence demonstrates an inability to effectuate
service after diligent effort.” OceanFirst Bank v. Hartford Fire Ins. Co., 794 F. Supp.
2d 752, 754 (E.D. Mich. 2011); see also Brow Art Mgmt., LLC v. Idol Eyes
Franchise, LLC, No. 23-cv-11434, 2024 WL 3851585, at *1 (E.D. Mich. Aug. 16,
2024) (citing OceanFirst Bank, 794 F. Supp. 2d at 754). If such diligence is shown,
the moving party must also demonstrate that the requested alternative means are
“reasonably calculated to achieve actual delivery.” Id. As for what alternative means
of service are typically allowed, “first-class mail to the actual address of the intended
recipient generally will suffice … especially when the mailing is accompanied by
posting at the known address of the prospective witness.” Id. (internal citation
omitted).
Here, Defendants have demonstrated diligence in trying to serve James.
According to Defendants, a process server attempted to achieve personal service on
three separate days between October 6 and 8, 2025, at James’s known address. ECF
No. 111 at PageID.3649; see also ECF No. 111-2 (affidavit of non-service). That
process server also left a contact card at James’s address, and James called the
process server to tell him that she did not “have time for this now.” Id. In addition
Case 2:23-cv-11547-SKD-EAS ECF No. 114, PageID.<pageID> Filed 12/05/25 Page 2 of 4

- 3 -
to 	those 	attempts 	at 	delivery 	by 	the 	process 	server, 	Defendants’ 	counsel
unsuccessfully attempted to reach James by phone on four separate dates. Id.
Further, Defendants mailed a copy of the subpoena to James on October 1, 2025.
ECF No. 111-3. These repeated attempts demonstrate a diligent effort to effectuate
service. Cf. Asian Food Serv., Inc. v. Travelers Cas. Ins. Co. of Am., No. 18-13454,
2020 WL 230134, at *2 (E.D. Mich. Jan. 15, 2020) (allowing alternative service
where process server made attempts on three days and left a contact card with no
response).
The alternative means of service requested by Defendants are also reasonably
calculated to achieve actual delivery. Specifically, Defendants request service by
three alternative means: (1) first-class mail accompanied by posting at James’s
known address; (2) permitting service via an individual over the age of fifteen who
resides with James; or (3) electronic or telephonic communication to James. ECF
No. 111 at PageID.3651. As noted above, courts observed that the first requested
means will generally satisfy the “reasonably calculated” standard. See OceanFirst
Bank, 794 F. Supp. 2d at 754. Moreover, this Court finds that the other two requested
means are reasonable here because James has evinced an intent to evade service. Cf.
Exp. Dev. Canada v. SDR Group, Inc., No. 19-11536, 2020 WL 1888825, at *2
(allowing such means where “the record suggests that the witness may be evading
service”).
Case 2:23-cv-11547-SKD-EAS ECF No. 114, PageID.<pageID> Filed 12/05/25 Page 3 of 4

- 4 -
Accordingly, it is ORDERED that Plaintiff’s Motion for Alternate Service,
ECF No. 111, is GRANTED.
It is FURTHER ORDERED that Defendants may effectuate service of a
subpoena on Charmetria James by means of the following:
1. Service by sending the subpoena and any applicable order of this
Court via first-class mail, to Ms. James last known address AND firmly
affixing a copy of the subpoena and this any applicable Court Orders to
the front door of the address that Ms. James responded to by telephone;
2. Permitting service via an individual over the age of 15 years old that
resides at Ms. James address; or
3. If any email, text messaging, or other network or telecommunication
address 	for Ms. James is known or reasonably available to the
Defendants, sending a copy of the subpoena and relevant Court Orders
to 	Ms. 	James’s 	reasonably 	available 	means 	of 	electronic
communication.
This is not a final order and does not close the above-captioned case.
/s/Susan K. DeClercq
SUSAN K. DeCLERCQ
United States District Judge
Dated: December 5, 2025
Case 2:23-cv-11547-SKD-EAS ECF No. 114, PageID.<pageID> Filed 12/05/25 Page 4 of 4