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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN
DIVISION
| THE TAUBMAN COMPANY LIMITED |
| PARTNERSHIP, |
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| Plaintiff, | |
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| | Civil Action No. 01-72987 |
| v. |
| | Honorable Lawrence P. Zatkoff |
| WEBFEATS and HENRY MISHKOFF, |
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Magistrate Judge Komives |
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| Defendants. | |
DEFENDANTS' EXPEDITED MOTION
TO DISMISS PLAINTIFF'S COMPLAINT
On August 7, 2001, Plaintiff entered a Complaint against Defendants in this Court. However, as no
proper service of the Complaint was ever effected, Defendants respectfully urge the Court to dismiss
the Complaint.
If this motion is granted, all subsequent motions and other actions in this case will be rendered
moot. Therefore, Defendants respectfully ask the Court to expedite this motion, and to consider it
prior to any and all other motions and requests that may be pending in this case at this time.
As Plaintiff has stated several times in documents relating to this case (for example, in Exhibit
A, Plaintiff's letter to Defendants of September 5, 2001), Plaintiff claims to have effected waiver
of service via telephone. However, the Federal Rules of Civil Procedure clearly require that such
waiver must be effected in writing. Quoting from Rule 4, Section d (Waiver of Service; Duty to Save
Costs of Service; Request to Waive), Sub-Section 2:
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);
(B) shall be dispatched through first-class mail or other reliable means;
(C) shall be accompanied by a copy of the complaint and shall identify the court in which it has
been filed;
(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;
(E) shall set forth the date on which request is sent;
(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, or 60 days from that date if the defendant is
addressed outside any judicial district of the United States; and
(G) shall provide the defendant with an extra copy of the notice and request, as well as a
prepaid means of compliance in writing.
By Plaintiff's own admission, they have not followed anything resembling this 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, to
invalidate any and all motions filed subsequent to 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
Dated: October 22, 2001
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