Bontemps v. Sotak et al

Filing 48

ORDER signed by Magistrate Judge Edmund F. Brennan on 07/24/12 ordering within 14 days from the date of service of this order, defendant Sotak shall pay to the U.S. Marshal the sum of $56.12 unless within that time defendant files a written statement showing good cause for failing to waive service. The clerk of the court shall serve a copy of this order on the U.S. Marshal. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,
Plaintiff,

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vs.

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No. 2:09-cv-2115 LKK EFB P

SOTAK, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The United States Marshal (“Marshal”) has requested reimbursement of

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expenses incurred in personally serving defendant Sotak. Dckt. No. 46.
On March 30, 2012, the court ordered the United States Marshal to serve process upon

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defendant Sotak. Dckt. No. 39. The Marshal was directed to attempt to secure a waiver of

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service before personally serving any defendant. However, if a waiver of service was not

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returned within 60 days as to any defendant, the Marshal was directed to (1) personally serve

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that defendant without prepayment of costs under Rule 4 of the Federal Rules of Civil Procedure

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and 28 U.S.C. § 566(c); and (2) file the return of service with evidence of attempts to secure a

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waiver and costs subsequently incurred in effecting personal service.

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The return of service filed with the Marshal’s USM-285 form shows that the Marshal

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mailed defendant a waiver of service on April 6, 2012. Dckt. No. 46. The form also shows that

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the waiver of service was not returned to the Marshal within 60 days. Id. The Marshal was

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therefore required to complete personal service on defendant. The form shows that the total cost

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of personal service was $56.12. Id.

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Rule 4 of the Federal Rules of Civil Procedure provides, in pertinent part:

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An individual . . . 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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...
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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 the expenses later incurred in making service
....

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Fed. R. Civ. P. 4(d)(1)-(2). Thus, the Marshal may be entitled to the costs sought, as it appears

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that defendant was given the opportunity required by Rule 4(d)(2) to waive service but failed to

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do so.

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Accordingly, the court hereby ORDERS that:

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1. Within 14 days from the date of service of this order, defendant Sotak shall pay to the

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United States Marshal the sum of $56.12, unless within that time defendant files a written

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statement showing good cause for failing to waive service.

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2. The Clerk of the Court shall serve a copy of this order on the U.S. Marshal.
DATED: July 24, 2012.

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