Lawson v. Youngblood
Filing
78
ORDER Granting U.S. Marshals' Request for Reimbursement of Costs of Serving Defendant Chang 73 , signed by Magistrate Judge Michael J. Seng on 3/20/14. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RICHARD ALAN LAWSON,
Plaintiff,
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v.
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Case No. 1:09-cv-00992-LJO-MJS (PC)
ORDER GRANTING U.S. MARSHALS’
REQUEST FOR REIMBURSEMENT OF
COSTS OF SERVING DEFENDANT
CHANG
DONALD YOUNGBLOOD, et al.,
(ECF No. 73)
Defendants.
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I.
BACKGROUND
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On January 11, 2012, the Court ordered the United States Marshals Service
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(“Marshal”) to serve process upon the Defendants in this case. (ECF No. 26.) The Marshal
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was directed to attempt to secure a waiver of service before attempting personal service on
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the Defendants. If a waiver of service was not returned by a Defendant within sixty days,
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the Marshal was directed to effect personal service on the Defendant in accordance with
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the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c),
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without prepayment of costs, and to file the return of service with evidence of any attempt
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to secure a waiver of service and with evidence of all costs subsequently incurred in
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effecting personal service.
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The Marshal attempted to secure a waiver of service and then attempted personal
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service on Defendant Chang, Kern County Sheriff Deputy, but was unsuccessful. On
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September 17, 2012, the Marshal filed a return of service as unexecuted for Defendant
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Chang. (ECF No. 42.)
On October 29, 2012, the Court ordered the Marshal to re-attempt service on
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Defendant Chang and ordered that if Chang were located and failed to waive service, the
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costs of personal service would be taxed against him. (ECF No. 53.)
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On February 10, 2014, the Marshal filed a request for reimbursement of costs for
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serving Defendant Chang (ECF No. 73) along with an executed return of summons and
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USM-285 form showing personal service costs of $71.83. (ECF No. 74.) The USM-285
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form shows that a waiver of service form was mailed to Defendant Chang on November 5,
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2012, and that he was personally served on February 4, 2014.
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Defendant Chang objects to the reimbursement request. He argues that in February
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or March 2013 he was served by substitution and entered his appearance in the action and
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thereby rendered waiver of service unnecessary and the costs of subsequent personal
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service not reimbursable.
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II.
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DISCUSSION
Rule 4 provides that “[a]n individual, corporation, or association that is subject to
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service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the
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summons.” Fed. R. Civ. P. 4(d)(1). “If a defendant located within the United States fails,
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without good cause, to sign and return a waiver requested by a plaintiff located within the
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United States, the court must impose on the defendant . . . the expenses later incurred in
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making service . . . .” Fed. R. Civ. P. 4(d)(2)(A).
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It appears that Defendant Chang was given the opportunity required by Rule 4(d)(1)
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to waive service, but he failed to return his waiver to the Marshal. Defendant Chang claims
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he was served by substitution but does not set forth any evidence as to precisely when or
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how he responded with an act that satisfied the requirement to timely execute the Marshal’s
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waiver. His appearance by answer filed March 28, 2013 did not satisfy the need to return
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the Marshal’s waiver or show good cause for his failure to do so.
The Court finds Defendant Chang failed to sign and return the waiver requested by
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the Marshal and that costs incurred in effecting service should be imposed upon him.
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III.
ORDER
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For the reasons stated, IT IS HEREBY ORDERED that the request by the U.S.
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Marshals Service for reimbursement of $71.83 in costs incurred in serving Defendant
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Chang (ECF No. 73) is GRANTED.
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IT IS SO ORDERED.
Dated:
March 20, 2014
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/s/
UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:
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Michael J. Seng
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