Harris v. Calzetta et al

Filing 44

ORDER Providing Defendant Calzetta With the Opportunity to SHOW CAUSE for Failing to Waive Service 42 , signed by Magistrate Judge Michael J. Seng on 8/31/15: Thirty (30) Day Deadline. (Hellings, J)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

HENRY EUGENE HARRIS,

10
11
12

Plaintiff,
v.
DR. JUAN CALZETTA, et al.,

13

Defendants.

Case No. 1:13-cv-001088-MJS (PC)
ORDER PROVIDING DEFENDANT
CALZETTA WITH THE OPPORTUNITY TO
SHOW GOOD CAUSE FOR FAILING TO
WAIVE SERVICE
(ECF No. 42)
THIRTY (30) DAY DEADLINE

14
15
16

On March 10, 2015, the Court ordered the United States Marshal to serve process

17

upon Defendant Calzetta in this case. The Marshal was directed to attempt to secure a

18

waiver of service before attempting personal service on Defendant. If a waiver of service

19

was not returned by the Defendant within sixty days, the Marshal was directed to effect

20

personal service on the Defendant in accordance with the provisions of Rule 4 of the

21

Federal Rules of Civil Procedure and 28 U.S.C. § 566(c), without prepayment of costs, and

22

to file the return of service with evidence of any attempt to secure a waiver of service and

23

with evidence of all costs subsequently incurred in effecting personal service.

24

On August 27, 2015, the United States Marshal filed a return of service with a USM-

25

285 form showing charges of $107 for effecting personal service on Defendant Calzetta.

26

The form shows that a waiver of service form was mailed on March 13, 2015. Apparently,

27

no response was received and the summons was assigned for personal service on August

28

4, 2015.
1

1
2
3
4
5
6
7
8
9
10
11
12

Rule 4 provides that “[a]n individual, corporation, or association that is 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). “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)(A).
It appears that Defendant Calzetta was given the opportunity required by Rule
4(d)(1) to waive service, but failed to comply with the request. The Court shall provide
Defendant with the opportunity to show good cause for failing to waive service.

Defendant either fails to respond to this order or responds but fails to show good cause, the
costs incurred in effecting service shall be imposed on Defendant.
Accordingly, IT IS HEREBY ORDERED that:

13

1.

14

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

15

2.

16

If Defendant either fails to respond to this order or responds but fails to
show good cause, the Court shall impose upon Defendant Calzetta the

17

costs incurred in effecting service.

18
19

IT IS SO ORDERED.

20
21

If

Dated:

August 31, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
22
23
24
25
26
27
28
2