Johnson v. Cate et al

Filing 40

ORDER (1) Discharging Order To Show Cause, and (2) Denying Plaintiff's Motion For Costs Of Personal Service (ECF Nos. 35 & 36 ), signed by Magistrate Judge Michael J. Seng on 11/11/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GARRISON S. JOHNSON,

Case No. 1:10-cv-02348-LJO-MJS (PC)

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Plaintiff,
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v.
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ORDER (1) DISCHARGING ORDER TO
SHOW CAUSE, and (2) DENYING
PLAINTIFF’S MOTION FOR COSTS OF
PERSONAL SERVICE

CATE, et al.,
(ECF Nos. 35 & 36)

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Defendants.
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Plaintiff Garrison S. Johnson is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. This matter proceeds against Defendant Doran for

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violation of Plaintiff’s rights under the Equal Protection Clause.

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The Court ordered Plaintiff, who is not proceeding in forma pauperis, to serve

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process upon Defendant. Plaintiff was instructed he could serve Defendant by requesting a

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waiver of service, Fed. R. Civ. P. 4(d)(1), and that if Defendant failed to return the waiver of

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service form, then Plaintiff must effect personal service. Plaintiff filed a return of summons

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showing Defendant was personally served by a process server on March 14, 2013.

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Before the Court is Plaintiff’s motion to recover the forty dollar ($40.00) cost of

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personal service on grounds Defendant failed to provide waiver of service as required by

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Federal Rules of Civil Procedure 4(d). (ECF No. 35.) The Court ordered Defendant to show
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cause why the motion should not be granted. (ECF No. 36.) Defendant filed a response.

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(ECF No. 38.) Plaintiff filed a reply which, though untimely, has been considered. (ECF No.

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39.) The matter is deemed submitted. Local Rule 230(l).

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I

ARGUMENTS
Plaintiff’s Position

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A.

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Plaintiff contends:

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On November 27, 2012 and on another day he does not recall, he sent by regular

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prison mail an original and copy of a waiver of service of summons, acknowledgment of

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service form, and a pre-paid self-addressed envelope to Defendant at Kern Valley State

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Prison (KVSP). Defendant did not respond and agree to waive service. On March 14, 2013,

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Plaintiff had Defendant personally served by a process server at a cost of forty dollars

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($40). The cost of service should be reimbursed to Plaintiff pursuant to Rule 4(d)(2).
Defendant’s Position

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B.

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Defendant contends:

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Plaintiff did not submit a waiver of service form to him in November 2012. The legal

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mail log at Plaintiff’s institution does not show Plaintiff mailed the waiver; the litigation

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coordinator at KVSP did not receive the waiver; and Plaintiff’s process server did not serve

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the waiver.

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II.

ANALYSIS

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A.

Legal Standard

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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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B.

Plaintiff Not Entitled to Service Costs

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A waiver of service notice and request must be addressed to the defendant and
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include a copy of the complaint. Fed. R. Civ. P. 4(d)(1). Plaintiff has not demonstrated he

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complied with the requirements of Rule 4(d)(1). He does not identify the address to which

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he mailed the waiver request nor indicate whether he included a copy of the complaint with

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his mailing. Thus the Court is unable to determine that the waiver request was properly

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served.
Defendant has submitted evidence he never received the waiver request. A

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defendant actually must receive the waiver and complaint by mail, and fail to respond,

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before becoming liable for the payment of costs of personal service. Fed. R. Civ. P. 4(d);

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see e.g., Henry v. Glaize Maryland Orchards, Inc., 103 F.R.D. 589, 591 (D.C. Md. 1984)

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(failure to receive summons and complaint under former service by mail provision is good

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cause to avoid the imposition of Rule 4 service costs).
The Court, on the record before it, can not find Plaintiff is entitled to service costs

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pursuant to Rule 4(d).

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III.

ORDER

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Accordingly, for the reasons stated above, it is HEREBY ORDERED that:

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1.

The order to show cause (ECF No. 36) is DISCHARGED; and

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2.

Plaintiff’s motion for costs of personal service (ECF No. 35) is DENIED
WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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Dated:

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November 11, 2013

/s/

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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Michael J. Seng

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