Dean v. Gonzales

Filing 57

ORDER signed by Magistrate Judge John F. Moulds on 11/13/12 ordering within 14 days from the date of this order defendants Tanya and Gonzales shall each pay to the United States Marshal the sum of $55.00, unless within that time defendant files a written statement showing good cause for his failure to waive service. The court does not intend to extend this 14 day period. 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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ALTON E. DEAN,
Plaintiff,

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vs.
KATHRYN M. GONZALES, et al.,
Defendants.

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ORDER
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No. 2:10-cv-1355 MCE JFM (PC)

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 July 9, 2012, the court ordered the United States Marshal to serve process

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upon the defendants in this case. The Marshal was directed to attempt to secure a waiver of

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

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within sixty days, the Marshal was directed to effect personal service on the defendants in

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accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C.

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§ 566(c), without prepayment of costs, and to file the return of service with evidence of any

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attempt to secure a waiver of service and with evidence of all costs subsequently incurred in

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effecting personal service.

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On November 6, 2012, the United States Marshal filed a return of service with a
USM-285 form showing total charges of $55.00 for effecting personal service on defendant
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Tanya and $55.00 for effecting personal service on defendant Gonzales. The form shows that a

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waiver of service form was mailed to the defendants on July 11, 2012, and that no response was

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

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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:
(A) the expenses later incurred in making service; and
(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).
The court finds that defendants Tanya and Gonzales were given the opportunity

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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 defendants Tanya and

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Gonzales shall each pay to the United States Marshal the sum of $55.00, unless within that time

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defendant files a written statement showing good cause for his failure to waive service. The

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court does not intend to extend this fourteen day period.
2. The Clerk of the Court is directed to serve a copy of this order on the U.S.

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Marshal.

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DATED: November 13, 2012.

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/mp
dean1355.taxcost

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