Maddox v. Yates, et al.

Filing 28

ORDER PROVIDING DEFENDANT WITH THE OPPORTUNITY TO SHOW GOOD CAUSE FOR FAILING TO WAIVE SERVICE signed by Magistrate Judge Barbara A. McAuliffe on 3/4/2015. Show Cause Response due by 4/6/2015.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID MADDOX,
Plaintiff,

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vs.
JAMES A. YATES, et al.,
Defendants.

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Case No. 1:13-cv-00171-BAM PC
ORDER PROVIDING DEFENDANT WITH
THE OPPORTUNITY TO SHOW GOOD
CAUSE FOR FAILING TO WAIVE
SERVICE

Plaintiff David Maddox (“Plaintiff”), a former state prisoner proceeding pro se and in

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forma pauperis, filed this civil rights action on February 4, 2013.
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On June 16, 2014, the Court ordered the United States Marshal to serve process on
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Defendant Arnellas in this case. The Marshal was directed to attempt to secure a waiver of
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service before attempting personal service on defendant. If a waiver of service was not returned
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by the defendant within sixty days, the Marshal was directed to effect personal service on the
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defendant in accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure
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and 28 U.S.C. § 566(c), without prepayment of costs, and to file the return of service with
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evidence of any attempt to secure a waiver of service and with evidence of all costs subsequently
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incurred in effecting personal service.
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On November 24, 2014, the United States Marshal filed a return of service with USM-

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285 forms showing charges of $329.44 for effecting personal service on Defendant Arnellas.

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(ECF No. 26.) The form shows that a waiver of service form was mailed to Defendant Arnellas

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on July 16, 2014.
Pursuant to the Court’s order, Defendant is required to return the waiver to the United

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States Marshal and the filing of an answer or a motion does not relieve him/her of this obligation.

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Defendant Arnellas did not return a waiver, which resulted in the execution of personal service

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on November 20, 2014.

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Defendant Arnellas filed an answer on March 3, 2015.
Rule 4 provides that “[a]n individual, corporation, or association that is subject to service

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under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.”

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Fed. R. Civ. P. 4(d)(1). “If a defendant located within the United States fails, without good

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cause, to sign and return a waiver requested by a plaintiff located within the United States, the

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court must impose on the defendant . . . the expenses later incurred in making service. . . .” Fed.

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R. Civ. P. 4(d)(2)(A).

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It appears that Defendant Arnellas was given the opportunity required by Rule 4(d)(1) to

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waive service, but failed to return the waiver to the United States Marshal, although Defendant

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Arnellas did make an appearance in the action. The Court shall provide Defendant Arnellas with

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the opportunity to show good cause for failing to waive service. If Defendant Arnellas either

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fails to respond to this order or responds but fails to show good cause, the costs incurred in

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effecting service shall be imposed.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Defendant Arnellas may, within thirty (30) days from the date of this
order, show good cause for failing to waive service; and

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2.

If Defendant fails to respond to this order or responds but fails to show good

cause, the Court shall impose the costs incurred in effecting service.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

March 4, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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