Xavier v. Roche et al

Filing 59

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/17/13: Within fourteen days from the date of this order defendant Holland shall pay to the United States Marshal the sum of $63.00. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal. (cc:USM) (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY R. XAVIER,

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No. 2:09-cv-0783 LKK CKD P

Plaintiff,
v.

ORDER

M. FRENCH, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action seeking
relief pursuant to 42 U.S.C. § 1983.

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On March 5, 2013, the court ordered the United States Marshal to serve process upon the

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defendants in this case. The Marshal was directed to attempt to secure a waiver of service before

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attempting personal service on defendant. If a waiver of service was not returned within sixty

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days, the Marshal was directed to effect personal service on the defendant in accordance with the

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provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c), without

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prepayment of costs, and to file the return of service with evidence of any attempt to secure a

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waiver of service and with evidence of all costs subsequently incurred in effecting personal

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service.

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On August 7, 2013, the United States Marshal filed a return of service with a USM-285
form showing total charges of $63.00 for effecting personal service on defendant Debbie Holland.
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The form shows that a waiver of service form was mailed to the defendant on March 27, 2013,

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and that no response was received.

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Rule 4(d) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
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. . . .

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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)(A), (B); see ECF No. 52.
The court finds that defendant Holland was given the opportunity required by Rule 4(d) to
waive service and has failed to comply with the request.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within fourteen days from the date of this order defendant Holland shall pay to the

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United States Marshal the sum of $63.00, unless within that time defendant files a written

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statement showing good cause for her failure to waive service. The court does not intend to

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extend this fourteen day period.

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2. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal.
Dated: September 17, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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