Cox, IV v. United States of America et al

Filing 74

Order To Show Cause Re Service Costs - Defendants Wesley Schwark and James Mikkelson, by Magistrate Judge Karen E. Scott. Those Defendants are therefore ordered to show cause in writing on or before January 31, 2018 why they should not be ordered t o reimburse the Marshal $65.54 each for the cost of personal service since it appears that they received, but did not return, a service waiver. Alternatively, they may remit that amount to the Marshal and notify the Court. (Attachments: # 1 Letters) (jdo)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 8:16-cv-01222-CJC-KES

Date: January 9, 2018

Title: LEWELLYN CHARLES COX, IV v. UNITED STATES OF AMERICA, et al.
PRESENT:
THE HONORABLE KAREN E. SCOTT, U.S. MAGISTRATE JUDGE
Jazmin Dorado
Courtroom Clerk

Not Present
Court Reporter

ATTORNEYS PRESENT FOR
PLAINTIFF:
None Present

ATTORNEYS PRESENT FOR
DEFENDANTS:
None Present

PROCEEDINGS (IN CHAMBERS):

Order To Show Cause Re Service Costs—
Defendants Wesley Schwark and
James Mikkelson

Plaintiff Lewellyn Charles Cox, IV, a prisoner, has been granted in forma pauperis status
in this action. (Dkt. 6.) He is therefore statutorily entitled to the assistance of the United States
Marshal Service (the “Marshal”) in serving process. 28 U.S.C. § 1915(d).
On November 3, 2017, the Marshal filed Process Receipts and Returns indicating that
Defendants Wesley Schwark and James Mikkelson, who are alleged to be “Secret Service
Agents,” had been personally served through “Agent in Charge” Tin Nguyen. (Dkts. 56, 57.)
The United States Attorney’s Office has filed a notice of appearance on behalf of Defendants
Schwark and Mikkelson. (Dkt. 59.)
The service receipts reflect that the Marshal had previously sent service waivers by mail
to those Defendants on September 11, 2017. (Dkts. 56, 57.) The Marshal subsequently
addressed the attached correspondence to the Court advising that Defendants Schwark and
Mikkelson had not returned the service waivers. The Marshal therefore requests reimbursement
of $65.54 from each for the costs of personal service.
Rule 4 of the Federal Rules of Civil Procedure (“Rule 4”) provides that an individual
subject to service “under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of
serving the summons.” Fed. R. Civ. P. 4(d)(1). Accordingly, that rule provides a process by
which a plaintiff may request that a defendant waive service of summons. Id. Rule 4 further

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 8:16-cv-01222-CJC-KES

Date: January 9, 2018
Page 2

states that, 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 … the expenses later incurred in making service .…” Fed. R. Civ. P. 4(d)(2).
Pursuant to subsection (i) of Rule 4, a United States officer or employee sued in an
individual capacity in connection with duties performed on the United States’ behalf must be
served “under Rule 4(e), (f), or (g).” Fed. R. Civ. P. 4(i)(3). Accordingly, Defendants Schwark
and Mikkelson as federal agents appear to be subject to the duty imposed by Rule 4,
subsection (d) to “avoid unnecessary expenses of serving summons.” See Fed. R. Civ. P.
4(d)(1).
Those Defendants are therefore ordered to show cause in writing on or before January
31, 2018 why they should not be ordered to reimburse the Marshal $65.54 each for the cost of
personal service since it appears that they received, but did not return, a service waiver.
Alternatively, they may remit that amount to the Marshal and notify the Court.
Initials of Deputy Clerk JD