Winters, et al v. Jordan, et al

Filing 342

ORDER signed by Magistrate Judge Kendall J. Newman on 7/9/2012 ORDERING 124 , 125 The Marshal's request for reimbursement of service-related fees as to defendant Dewey Harpainter is GRANTED; within 45 days of the date of this order, Harpainte r shall pay to the United States Marshals Service the amount of $153.00; Harpainter shall file a very brief notice of payment with the court within 14 days of such payment; the Clerk of Court shall serve a copy of this order on the United States Marshals Service. (cc: USM)(Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRENT ALLAN WINTERS,

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Plaintiffs,

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No. 2:09-cv-0522 JAM KJN PS

v.

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DELORES JORDAN, et al.,
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Defendants.
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ORDER
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Presently before the court is a request made by the United States Marshals

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Service, Civil Division (“Marshal”), for reimbursement of its expenses incurred in connection

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with effectuating personal service of process on defendant Dewey Harpainter (see Dkt. Nos. 124-

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25).1 The Marshal requests a total amount of $153 pursuant to Federal Rule of Civil Procedure

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4(d) on the grounds that Harpainter failed to return the waiver of service form. The court ordered

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Harpainter to show good cause why he should not be ordered to reimburse the Marshal, and

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Harpainter filed a timely response to the court’s order. (See Order, Apr. 11, 2012, Dkt. No. 334;

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Harpainter’s Response, Dkt. No. 337.)

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This case proceeds before the undersigned pursuant to Eastern District of California Local
Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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In regards to waivers of service, Federal Rule of Civil Procedure 4(d) provides, in
relevant part:

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(d) Waiving Service.

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(1) Requesting a Waiver. An 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. The plaintiff may notify
such a defendant that an action has been commenced and request that the
defendant waive service of a summons. . . .

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(2) Failure to Waive. 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:

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(A) the expenses later incurred in making service; and
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(B) the reasonable expenses, including attorney’s fees, of any
motion required to collect those service expenses.

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Fed. R. Civ. P. 4(d)(1), (2).

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The record reflects that the Marshal mailed a waiver of service form to Harpainter

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at the law firm of Armstrong & Associates on December 16, 2009, but that Harpainter did not

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return the waiver form. (See Process Receipt & Return at 1, Dkt. No. 124.) Accordingly, the

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Marshal assigned the matter for personal service, and effectuated personal service on Harpainter

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on or about June 16, 2010, at a cost of $153. (Id.)

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Harpainter does not contest the facts regarding personal service of process, except

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that he represents that he was personally served on June 18, 2010. (Harpainter’s Response ¶ 6.)

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In regards to the waiver of service form, Harpainter explains that at some point prior to his

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appearance in this case, he left the firm of Armstrong & Associates and opened his own law firm;

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Harpainter provides no dates in regards to this move. (Id. ¶¶ 4-5.) In any event, Harpainter states

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that he is unaware of any attempts to serve him prior to June 2010, and that mail sent to

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Armstrong & Associates was processed by the clerical staff and distributed through the firm’s

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owner. (Id. ¶ 8.)

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The undersigned finds that Harpainter failed to waive service without good cause

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for such failure. The record reflects that the Marshal sent the waiver form to Harpainter’s correct

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office address. (Compare Process Receipt & Return at 1, with Harpaitner’s Response ¶ 4.) At

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best, Harpainter implies that there might have been some mix-up at Harpainter’s old firm in

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regards to distribution of the waiver form to him. But that reason is insufficient to excuse

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Harpainter’s duty to avoid unnecessary expenses in regards to service.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The Marshal’s request for reimbursement of service-related fees as to

defendant Dewey Harpainter is granted.
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Within 45 days of the date of this order, Harpainter shall pay to the United

States Marshals Service the amount of $153.
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Harpainter shall file a very brief notice of payment with the court within

14 days of such payment.
4.

The Clerk of Court shall serve a copy of this order on the United States

Marshals Service.
IT IS SO ORDERED.
DATED: July 9, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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