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Act 30: Taubman Opposes My Motion To Dismiss

I get the feeling that Ms. Greenberg didn't think very much of my motion to dismiss the Complaint, as she responded with only a one-page (two-paragraph) brief. Here's what she had to say.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE TAUBMAN COMPANY LIMITED
PARTNERSHIP, Plaintiff,

v. WEBFEATS and HENRY MISHKOFF,
Defendants.

Civil Action No. 01-72987
Honorable Lawrence P. Zatkoff
Magistrate Judge Komives

PLAINTIFF'S BRIEF OPPOSING MOTION TO DISMISS COMPLAINT

The instant motion fails to state the grounds upon which the relief is sought. It fails to state that concurrence was sought (none was) and it does not provide the Court, or Plaintiff, with the benefit of a brief. For its procedural inadequacies alone, this motion should be stricken.

To the extent that the motion is based on allegations of improper service, Plaintiff respectfully submits that service of the complaint was voluntarily accepted by Defendant Mishkoff in a telephone call with attorney Julie Greenberg on September 5, 2001, after having received a copy of the filed complaint in the U.S. mail. Ms. Greenberg confirmed this agreement in a letter dated the same day, a copy of which is attached to Defendants' motion to dismiss and also as Exhibit A hereto. Plaintiff respectfully submits that any objection to the method of service is waived, that this motion is frivolous, and requests that it be awarded costs in responding hereto.

Respectfully submitted,

Julie A. Greenberg (P38299)
GIFFORD, KRASS, GROH, SPRINKLE,
ANDERSON & CITKOWSKI, P.C.
280 N. Old Woodward Ave., Suite 400
Birmingham, Michigan 48009
(248)647-6000

Attorneys for Plaintiff

Dated: November 6, 2001

View the Original Brief (in a separate window)

This issue really bothers me, because (1) I feel that it's the one time (that I know of, so far) that I let Ms. Greenberg sucker me into doing something that I've regretted ever since, and (2) I'm convinced that I'm absolutely right, but I'm afraid that I may lose the fight because of some legal technicality.

What happened is that she got me to verbally agree to accept service by telling me that, if I did not agree, she would hire a process server, I would be served anyway, and I would have to pay the process server. Is that a "voluntary" agreement? Well, she has sworn that it was under penalty of perjury, so I guess it must be...

But wait: It turns out that the Federal Rules of Civil Procedure specify that a request to waive service must be in writing! That's right, the very Rules to which Ms. Greenberg is supposed to adhere say that it's not enough for her to get me to verbally agree to waive service, she must get me to do it in writing.

And there's more! The Rules say that she has to inform me "of the consequences of compliance and of a failure to comply with the request" – and the Rules even specify the exact form that she has to use to make the notification!

And as if that's not enough: The Rules say that she has to notify me that I have at least 30 days to return the waiver!

I don't think I can over-stress how important this is. Because Ms. Greenberg decided to ignore the Rules, she put me in a position where I had to respond to her charges immediately, without any time to research the correct procedures. And now she's claiming that not only should my motions (this one and others) be denied because I didn't follow the correct procedures in filing them, she wants the judge to order me to pay her because I wasted her time!

The strangest thing is that she hasn't even bothered to address the fact that the Rules say that the waiver must be in writing. If I was wrong, I suspect that she might have mentioned it, rather than hiding behind technicalities and legal jargon. I can only hope that the judge notices that glaring omission.