Cottrell v. Ogbuehi et al

Filing 49

ORDER IMPOSING SERVICE COSTS ON DEFENDANT PARK AND REQUIRING HIM TO REIMBURSE USM $77.25 WITHIN THIRTY DAYS re 42 , 43 , 46 signed by Magistrate Judge Stanley A. Boone on 8/26/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DALE L. COTTRELL,

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Plaintiff,

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v.

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FELIX IGBINOSA, et al.,

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Defendants.

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Case No.: 1:13-cv-01530-LJO-SAB (PC)
ORDER IMPOSING SERVICE COSTS ON
DEFENDANT PARK AND REQUIRING HIM TO
REIMBURSE USM $77.25 WITHIN THIRTY
DAYS
[ECF Nos. 42, 43, 46]

Plaintiff Dale L. Cottrell is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
This action is proceeding on Plaintiff’s second amended complaint, filed October 10, 2014,

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against Defendants Lackey, Berard, Ogbuehi, Das, Park, Duenas, and Igbinosa for deliberate

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indifference to a serious medical need in violation of the Eighth Amendment.

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On July 8, 2015, the United States Marshals Office, which was responsible for service process

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on Plaintiff’s behalf, 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3), filed a request for reimbursement of

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the expenses incurred in effecting personal service on Defendant Park, Fed. R. Civ. P. 4(d)(2)(A). On

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July 15, 2015, the Court ordered Defendant Park to show cause within fifteen days why the expenses

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for personal service should not be taxed against him. (ECF No. 46.) More than fifteen days have

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passed, and Defendant Park has not responded to the order. Defendant Park was warned that if he

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“either (1) fails to respond to this order or (2) responds but fails to show good cause, he will be
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required to reimburse the United States Marshals Service the $77.25 expense incurred in effecting

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personal service.” (ECF No. 46, Order at 2:6-8.)

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Pursuant to the Federal Rules of Civil Procedure, individuals have “a duty to avoid

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unnecessary expenses of serving the summons.” Fed. R. Civ. P. 4(d)(1). “If a defendant located

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within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff

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located within the United States, the court must impose on the defendant … the expense later incurred

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in making service….” Fed. R. Civ. P. 4(d)(2)(A).

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Rule 4 imposes a duty to avoid unnecessary costs of service and while a defendant failing to

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waive service must be given the opportunity to show good cause for the failure, sufficient cause

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should be rare. Estate of Darulis v. Garate, 401 F.3d 1060, 1063-1064 (9th Cir. 2005) (citing to Fed.

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R. Civ. P. Advisory Committee note on 1993 amendments). In this case, Defendant Park has failed to

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respond to the order to show cause and has not presented good cause for failing to waive service. Fed.

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R. Civ. P. 4(d)(2)(A); Estate of Darulis, 401 F.3d at 1063-1064.

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Accordingly, the Court HEREBY ORDERS as follows:

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1.

The expenses incurred by the United States Marshals Office in effective service are
imposed against Defendant Park;

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2.

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Defendant Park shall reimburse the United States Marshals Office $77.25 within thirty
(30) days from the date of service of this order;1 and

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3.

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The Clerk’s Office shall serve a copy of this order on the Sacramento Division of the
United States Marshals Office.

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IT IS SO ORDERED.

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Dated:

August 26, 2015
UNITED STATES MAGISTRATE JUDGE

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United States Marshals Office, 501 I. Street, Suite. 5600, Sacramento, CA 95814.

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