Villarreal v. DeWitt et al

Filing 51

ORDER denying 30 motion for costs and attorney's fees pursuant to Federal Rule of Civil Procedure 4(d)(2). Signed by Judge Kristine G. Baker on 3/29/2019. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
LETICIA VILLARREAL

PLAINTIFF

CAROLYN ARNETT
v.

CONSOLIDATED PLAINTIFF
Case No. 1:16-cv-00163 KGB

KENNETH DEWITT, et al.

DEFENDANTS

LARRY NORRIS, et al.

CONSOLIDATED DEFENDANTS
ORDER

Before the Court is consolidated plaintiff Carolyn Arnett’s motion for costs and attorney’s
fees pursuant to Federal Rule of Civil Procedure 4(d)(2) (Dkt. No. 30).1 In her motion, Ms. Arnett
seeks an Order from this Court compelling defendants Larry Norris, Ray Hobbs, Wendy Kelley,
Linda Dixon, John Maples, Maggie Capel, Nurzuhal Faust, Christopher Budnik, John Mark
Wheeler, Don Yancey, and Linda Dykes (collectively, the “ADC defendants”) to pay $2,343.15
in costs and attorneys’ fees that Ms. Arnett allegedly incurred because of defendants’ refusal to
waive service (Id.). The ADC defendants responded in opposition (Dkt. No. 32). The Court’s
decision on the motion is set forth below (Dkt. No. 30).
I.

Background

On December 21, 2016, separate plaintiff Leticia Villarreal filed an amended complaint
alleging claims against Phillip Allen, Kenneth DeWitt, Ms. Dixon, Ms. Faust, Kristina Gates,
Tonya Gates, Mr. Hobbs, Stacey Smith, and Alva Yancy (Dkt. No. 2). On August 28, 2017, the
Court granted Ms. Villarreal leave to amend her first amended complaint (Dkt. No. 20). On August

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Unless noted otherwise, all docket citations in this opinion refer to the consolidated
action, Villarreal v. DeWitt, et al., Case No. 1:16-cv-163-KGB (E.D. Ark. 2016).

29, 2017, counsel for the Arkansas Attorney General (“AAG”) sent an email to counsel for Ms.
Villarreal stating that, “Once served, I anticipate entering my appearance on behalf of the
following: Larry Norris, Ray Hobbs, Wendy Kelley, Linda Dixon, John Maples, Maggie Capel,
Nurzuhal Faust, Christopher Budnik, John Mark Wheeler, and Don Yancy. I am not authorized to
accept service on behalf of any of these individuals.” (Dkt. No. 31-2, at 1). On September 5, 2017,
Ms. Villarreal filed her amended complaint, and Ms. Arnett filed her complaint in a separate action.
See Arnett v. Norris, et al., 1:17-cv-00076-KGB (E.D. Ark. 2017).
On September 12, 2017, Ms. Arnett’s counsel asked counsel at the AAG’s office for a list
of addresses at which the ADC defendants in the Arnett v. Norris action could be served (Dkt. No.
31-2, at 2). In that letter, Ms. Arnett’s counsel acknowledged that counsel at the AAG’s office
was not authorized to accept service on behalf of defendants but asked for “their various
professional addresses so that [plaintiff] might avoid the additional time and expense in issuing
waivers and notices of the lawsuit to each of them.” (Id.).
On September 27, 2017, counsel for Ms. Arnett sent waiver requests to the ADC defendants
in the Arnett v. Norris case: Mr. Norris, Mr. Hobbs, Ms. Kelley, Ms. Dixon, Mr. Maples, Ms.
Capel, Ms. Faust, Mr. Budnik, Ms. Dykes, Mr. Wheeler, Mr. Yancey, and Jennifer Smith (Dkt.
No. 31-4, at 1-48). Ms. Arnett represents that these waiver requests included a cover letter, a copy
of her complaint, a notice of lawsuit and request to waive service of a summons, and two copies
of a waiver of the service of summons form (Id.). Counsel at the AAG’s office was copied on
these waiver requests (Id.).
On September 29, 2017, counsel for Ms. Arnett informed counsel at the AAG’s office that
he had sent the waiver requests to the Arkansas Department of Correction’s (“ADC”) compliance
office at 7300 Dollarway Road, White Hall, Arkansas 71602 (Dkt. No. 31-2, at 3). Counsel at the

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AAG’s office responded on October 2, 2017, that Ms. Arnett had sent the materials to the correct
address (Id.). The waiver form specifically states: “This is not a summons, or an official notice
from the court. It is a request that, to avoid expenses, you waive formal service of a summons by
signing and returning the enclosed waiver. To avoid these expenses, you must return the signed
waiver within 30 days. . . from the date shown below, which is the date this notice was sent.” (Dkt.
No. 31-4, at 2, 6, 10, 14, 18, 22, 26, 30, 34, 38, 42, 46). On November 9, 2017, counsel at the
AAG’s office sent Ms. Arnett’s counsel an email stating that “[m]y clients will not be waiving
service.” (Dkt. No. 31-2, at 4).
As a result, on November 10, 2017, Ms. Arnett sent each of the ADC defendants—plus
Ms. Stacey Smith—a copy of the complaint and a summons via certified U.S. mail (Dkt. Nos. 313, at 1-3; 31-5, at 1-39). Ms. Arnett represents that this mailing cost $194.70 (Dkt. No. 31-1).
Each of these mailings was directed to the ADC’s compliance office (Dkt. No. 31-5).
Approximately two weeks later, each of these mailings was returned to Ms. Arnett as “refused.”
(Dkt. No. 31, at 5).
Counsel at the AAG’s office sent Ms. Arnett the following explanation:
My understanding is that if your office will send the mail via certified mail,
signature confirmation, then the Compliance Department will accept service on
those individuals I have previously told you they would. When you indicate [the
mailing] is for restricted delivery, it tells them that only the named defendant can
accept it.
(Dkt. No. 31-2, at 5). Ms. Arnett’s counsel responded to counsel at the AAG’s office and
“confirmed our mistake insofar as we checked the box which reads: signature confirmationrestricted delivery.” (Dkt. No. 32-5, at 2). Counsel for Ms. Arnett also responded that he would
send the mailings again via certified mail, signature confirmation requested (Dkt. No. 31-2, at 5).
Accordingly, on November 28, 2017, Ms. Arnett sent a copy of the complaint and summons to

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defendants at a cost of $165.95 (Dkt. No. 31-1). As a result, the following defendants were served
with a copy of the complaint and summons: Mr. Norris, Mr. Hobbs, Ms. Kelley, Ms. Dixon, Mr.
Maples, Ms. Capel, Ms. Faust, Mr. Budnik, Ms. Dykes, and Mr. Yancey (Dkt. No. 31-3, at 1-3).
II.

Discussion

Ms. Arnett seeks $2,343.15 in costs and attorneys’ fees allegedly incurred because of
defendants’ refusal to waive service without good cause (Dkt. No. 30). The ADC Defendants
argue that their “reluctance to waive service was based upon their unfamiliarity and general unease
with the request, and not any intentional means to avoid service.” (Dkt. No. 32, at 3). Furthermore,
the ADC defendants assert that they have taken several steps to assist Ms. Arnett in her attempts
to perfect service (Id., at 4). Finally, the ADC defendants argue that, if the Court determines that
Ms. Arnett is entitled to costs, such an award should be limited to the final mailing, as Ms. Arnett’s
restricted delivery mailing was not successful due to an error by Ms. Arnett (Id., at 5).
Rule 4(d)(2) of the Federal Rules of Civil Procedure provides:
If a defendant located within the United States fails, without good cause, to sign
and return a waiver requested by a plaintiff located within the United States, the
court must impose on the defendant:
(A) the expenses later incurred in making service;
and
(B) the reasonable expenses, including attorney’s fees, of any motion required to
collect those service expenses.
Fed. R. Civ. P. 4(d)(2) (emphasis added). Rule 4(d) also prescribes the method by which a waiver
may be requested, stating that “[t]he notice and request must . . . be accompanied by a copy of the
complaint, 2 copies of the waiver form . . . , and a prepaid means for returning the form . . . .” Fed.
R. Civ. P. 4(d)(1)(C).

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The Court concludes that relief under Rule 4(d)(2) may be granted before a final judgment
is entered. See Costello v. Feaman, Case No. 4:10-cv-425RWS, 2010 WL 2985660, at *2 (E.D.
Mo. July 26, 2010) (citations omitted). Therefore, it is appropriate for the Court to take up this
issue at this time.
Next, the Court turns to consider whether the form of the waiver of service sent to
defendants complies with Rule 4(d)(1). Ms. Arnett states that the waiver packets she sent to
defendants included a cover letter, a copy of the complaint, a notice of lawsuit and waiver request
form, and two waiver forms (Dkt. No. 31). Ms. Arnett attached some of these documents to her
motion; the complaints purportedly sent to the ADC defendants were not attached as exhibits (Dkt.
No. 31-4, at 1-48). While this is understandable, the Court also notes that Ms. Arnett does not
assert that she sent defendants “a prepaid means for returning the form . . . .” Fed. R. Civ. P.
4(d)(1)(C). Furthermore, the documents attached to Ms. Arnett’s motion do not include prepaid
means for the ADC defendants to return their forms (see Dkt. No. 31-4, at 1-48). In fact, the ADC
defendants assert that none of the packets included a prepaid means for returning the form (Dkt.
No. 32, at 2 n.2). Thus, it appears that Ms. Arnett’s waiver requests lacked a prepaid means for
the recipients to return the forms and therefore did not comply with the strictures of Rule
4(d)(1)(C).
The Court now considers whether “good cause” exists for defendants’ refusal to waive
service. “Absent ‘good cause,’ imposition of costs is mandatory” under Rule 4(d)(2). Costello,
2010 WL 2985660, at *1. The Court declines to find unfamiliarity with Rule 4(d)(2) good cause
to excuse compliance with it (Dkt. No. 32, at 2-3).
Counsel at the AAG’s office directed that the waiver packets be sent to the ADC
compliance office (Id., at 3). In response, Ms. Arnett initially sent waiver requests pursuant to

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Rule 4(d)(2) to the ADC defendants at the ADC compliance office (Dkt. No. 31-4, at 1, 5, 9, 13,
17, 21, 25, 29, 33, 37, 41, 45). The form utilized by Ms. Arnett cites the Rule, explains the Rule,
and puts an individual on notice of the consequences of failing to comply with the Rule and failing
to waive service (see Dkt. No. 31-4, at 2-3). Further, here, putative counsel was provided with
notice of the waiver requests and copied on the requests sent to the ADC defendants (Id., at 1, 5,
9, 13, 17, 21, 25, 29, 33, 37, 41, 45).
When asked to do so, instead of complying with the Rule and agreeing to waive service in
accord with the Rule, the ADC defendants through their putative counsel informed Ms. Arnett that
they refused to waive service (Dkt. No. 31-2, at 4). In their correspondence with Ms. Arnett, the
ADC defendants offered no explanation for their refusal to waive service (Id.).
The ADC Defendants claim that instead of insisting on a process server individually
serving each named ADC defendant, counsel at the AAG’s office attempted to work with Ms.
Arnett’s counsel to facilitate service. This argument misses the mark set by Rule 4(d)(2).
After refusing to waive service, instead of requiring Ms. Arnett to obtain service in accord
with the Federal Rules of Civil Procedure, the ADC defendants through their putative counsel
insisted on receiving each summons and complaint on defendants’ terms, not in compliance with
technical service requirements (Dkt. No. 31-2, at 5). When Ms. Arnett next sent the summonses
and complaints to the ADC compliance office, initially she sent those documents restricted
delivery with signature required, as that is what typically is required by the Federal Rules of Civil
Procedure for service. Those forms were returned to Ms. Arnett, purportedly because ADC
compliance office employees did not want to forge signatures for the individual defendants and
would not accept service in that manner (Dkt. No. 32, at 3).

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Then, counsel for the AAG instructed that the summonses and complaints be sent to the
ADC compliance office “in a manner that would allow Compliance to sign for the letters.” (Dkt.
No. 32, at 3). Ms. Arnett was instructed to send the packets certified mail, return receipt requested
to allow ADC compliance office employees to sign for the packets (Dkt. No. 32, at 4). Although,
as counsel at the AAG’s office points out, this permitted Ms. Arnett to obtain service in a manner
that avoided the need for a process server and the costs associated with personal service of process,
and this forced Ms. Arnett to incur additional fees and costs to obtain service on defendants’ terms,
after defendants refused without explanation to waive service under Rule 4(d)(2).
“[G]ood cause to avoid an award of fees and costs under Rule 4(d)(2) will exist ‘if the
defendant did not receive the request . . . .’” Double S Truck Line, Inc. v. Frozen Food Exp., 171
F.R.D. 251, 254 (D. Minn. 1997) (citing Fed. R. Civ. P. 4 advisory committee’s note to 1993
amendment). The record evidence indicates that a cover letter, a copy of the complaint, a notice
of lawsuit and waiver request form, and two waiver forms were sent to each defendant at 7300
Dollarway Road, Suite 101, White Hall, AR 71602 (Dkt. No. 31-4, at 1-48). Defendants’ putative
counsel confirmed that this was the correct address (Dkt. No. 31-2). Further, defendants’ putative
counsel was copied on waiver packets sent to defendants (Dkt. No. 31-4, at 1, 5, 9, 13, 17, 21, 25,
29, 33, 37, 41, 45). When asked to do so, instead of complying with the Rule and agreeing to
waive service in accord with the Rule, the ADC defendants through their putative counsel informed
Ms. Arnett that they refused to waive service (Dkt. No. 31-2, at 4).
Here, although Ms. Arnett establishes that she sent the waiver requests to the ADC’s
compliance office, she does not represent that defendants themselves received the waiver requests
(Dkt. No. 31, at 4). While the ADC defendants’ putative counsel had knowledge of the waiver
requests, she explicitly told Ms. Arnett’s counsel that she was not authorized to accept service on

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her putative clients’ behalf (Dkt. No. 31-2, at 1). By arguing to the Court that the ADC defendants
did not waive service because they “did not understand or appreciate the possible implications that
could be associated with waivers,” ADC defendants certainly come close to admitting that they
each personally received the waiver packets and affirmatively decided not to waive service (see
Dkt. No. 32, at 2-3). However, on the record before it, the Court declines to construe the ADC
defendants’ putative counsel’s knowledge against the ADC defendants, given the representations
made by counsel at the AAG’s office to Ms. Arnett that counsel at the AAG’s office was not
authorized to accept service of process.
On the record before it, in sum, the Court finds that Ms. Arnett’s waiver requests lacked a
prepaid means for the recipients to return the forms and therefore did not comply with the strictures
of Rule 4(d)(1)(C). The Court declines to find unfamiliarity with Rule 4(d)(2) good cause to
excuse compliance with it. Although it is a close question, the Court declines to construe the ADC
defendants’ putative counsel’s knowledge against the ADC defendants and, therefore, determines
that the record lacks evidence that the actual ADC defendants received the waiver requests. This
gives rise to good cause to avoid an award of fees and costs. The Court will not require the ADC
defendants to pay to Ms. Arnett the costs of service and attorneys’ fees incurred in the drafting of
her present motion.
III.

Conclusion

For all the reasons discussed above, the Court denies Ms. Arnett’s motion for costs and
attorney’s fees pursuant to Federal Rule of Civil Procedure 4(d)(2) (Dkt. No. 30).
So ordered this 29th day of March, 2019.

________________________________
Kristine G. Baker
United States District Court Judge

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