Anderson v. Krpan et al

Filing 52

ORDER GRANTING U.S. Marshals' Request for Reimbursement of Costs of Serving Defendant Krpan signed by Magistrate Judge Michael J. Seng on 6/13/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWN ANDERSON, Plaintiff, 12 v. 13 14 CHRIS KRPAN, et al., 15 Case No. 1:14-cv-01380-AWI-MJS (PC) ORDER GRANTING U.S. MARSHALS’ REQUEST FOR REIMBURSEMENT OF COSTS OF SERVING DEFENDANT KRPAN (ECF No. 49) Defendants. 16 17 18 19 20 21 I. BACKGROUND On February 13, 2017, the Court ordered the United States Marshal to serve 22 process upon Defendant Krpan. (ECF No. 35.) The Marshal was directed to attempt to 23 secure a waiver of service before attempting personal service on Krpan. If a waiver of 24 service was not returned by Defendant within sixty days, the Marshal was directed to 25 effect personal service on Defendant in accordance with the provisions of Rule 4 of the 26 Federal Rules of Civil Procedure and 28 U.S.C. § 566(c), without prepayment of costs, 27 and to file the return of service with evidence of any attempt to secure a waiver of 28 service and with evidence of all costs subsequently incurred in effecting personal 1 1 service. On April 14, 2017, Defendant Krpan filed an answer to the complaint. (ECF No. 2 3 40.) On May 26, 2017 the United States Marshal filed a return of service with a USM- 4 5 285 form showing charges of $278.70 for effecting personal service on Defendant 6 Krpan. (ECF No. 49.) The form shows that a waiver of service form was mailed to 7 Defendant Krpan on February 16, 2017. No response was received within the sixty day 8 time period allotted1, and accordingly the summons was assigned for personal service 9 on April 21, 2017. Defendant Krpan was personally served on May 5, 2017. The Court ordered Defendant Krpan to show cause why costs of service should 10 11 not be imposed against him. (ECF No. 50.) In response, counsel for Defendant Krpan 12 stated that he inadvertently failed to return a waiver of service form because of a 13 “mistaken belief” that Defendant’s filing of an answer “obviated any further effort at 14 service.” (ECF No. 51.) II. 15 DISCUSSION Rule 4 provides that “[a]n individual, corporation, or association that is subject to 16 17 service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving 18 the summons.” Fed. R. Civ. P. 4(d)(1). “If a defendant located within the United States 19 fails, without good cause, to sign and return a waiver requested by a plaintiff located 20 within the United States, the court must impose on the defendant . . . the expenses later 21 incurred in making service . . . .” Fed. R. Civ. P. 4(d)(2)(A). It appears that Defendant Krpan was given the opportunity required by Rule 22 23 4(d)(1) to waive service. Krpan did in fact fail to comply with the request. It was that 24 failure which led to the costs of personal service being incurred. It is thus fitting that 25 Krpan, whose counsel’s apparently innocent error caused the costs to be incurred, bear 26 those costs. Accordingly, the Court finds that costs incurred in effecting service should 27 28 1 Defendant Krpan concedes that he did not return the waiver request. (ECF No. 51.) 2 1 be imposed upon Defendant Krpan. 2 III. ORDER 3 For the reasons stated, IT IS HEREBY ORDERED that 4 1. The request by the U.S. Marshals Service for reimbursement of $278.70 in 5 costs incurred in serving Defendant Krpan (ECF No. 49) is GRANTED; 6 and 7 2. Within thirty days of the date of service of this order, Defendant Krpan 8 shall remit payment in the amount of $278.70, clearly marked with 9 reference to Defendant Krpan and case number 1:14–cv–01390–AWI– MJS (PC), to: 10 11 12 United States Marshals Service 13 501 I Street, Fifth Floor, Ste. 5600 14 Sacramento, California 95814 15 16 17 IT IS SO ORDERED. Dated: June 13, 2017 /s/ 18 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3

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