Poe v. Huckabay et al

Filing 95

ORDER Setting Aside Order Granting Request for Reimbursement by USM 82 , signed by Magistrate Judge Gerald B. Cohn on 9/7/11. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID POE,

CASE NO. 1:07-cv-00413-AWI-GBC (PC)
Plaintiff,

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v.

ORDER SETTING ASIDE ORDER
GRANTING
REQUEST
FOR
REIMBURSEMENT BY USM

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SGT. HUCKABAY, et al.,
Defendants.

(ECF No. 82)
/

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ORDER

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Plaintiff David Poe (“plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s Third Amended Complaint, filed on November 30, 2009. (ECF No. 36.) On April 23,

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2010, the Court ordered Plaintiff to provide information to facilitate service of process on

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Defendants by filling out and submitting to the Court a USM-285 form and a summons for

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each Defendant to be served. (ECF No. 42.) Plaintiff submitted the required documents on

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May 13, 2010, and on May 17, 2010, the Court directed the United States Marshal to initiate

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service on the fourteen Defendants. (ECF Nos. 43 & 44.)

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It was necessary to order personal service to effectuate service on Defendant Milam.

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(ECF No. 70.) Once the summons was returned executed, the USM then requested and was

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granted, reimbursement pursuant to Federal Rule of Civil Procedure 4(d)(2). (ECF Nos. 71,
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74, & 82.) Defendant Milam filed a declaration stating that he only learned of the lawsuit on

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July 18, 2011 and that, had he been aware, he would have agreed to a waiver of service.

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(ECF No. 89.)

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Fed. R. Civ. P 4(d) states that if a defendant fails to waive service without good cause,

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a court must impose the expenses incurred in making service and the expenses, including

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attorney's fees, of any motion required to collect those services.

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Good cause having been shown, the Order granting reimbursement is HEREBY SET

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ASIDE. The Clerk of the Court is directed to serve a copy of this Order on the United States

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Marshal.

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IT IS SO ORDERED.

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Dated:
1j0bbc

September 7, 2011
UNITED STATES MAGISTRATE JUDGE

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