Goldsmith v. Davis, et al

Filing 25

ORDER signed by Magistrate Judge Kendall J. Newman on 8/19/11 ORDERING dft Davis to pay to the USM the sum of $81.52 within 14 days OR to SHOW CAUSE in writing within 14 days why service was not timely waived. (cc: USM) (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES K. GOLDSMITH,

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Plaintiff,

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vs.

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No. 2:10-cv-1995 KJN P

L. DAVIS, et al.,

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Defendants.

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/

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ORDER

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in
this action seeking relief pursuant to 42 U.S.C. § 1983.

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On February 10, 2011, the court ordered the United States Marshal to serve

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process upon 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 any defendant. If a waiver of service was not

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returned within sixty days, the Marshal was directed to effect personal service on the defendant

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in accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28

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U.S.C. § 566(c), without prepayment of costs, and to file the return of service with evidence of

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any 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 July 11, 2011, the United States Marshal filed a return of service with a USM-

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285 form, showing total charges of $81.52, for effecting personal service on defendant Davis.

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The form (Dkt. No. 22) shows that a waiver of service form was mailed to the defendant on

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February 24, 2011, but that no response was received until July 13, 2011 (Dkt. No. 23), after

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personal service.

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

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An individual, corporation, or association that is subject to service
under subdivision (e), (f), or (h) and that receives notice of an
action in the manner provided in this paragraph has a duty to avoid
unnecessary costs of serving the summons . . . .

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If a defendant located within the United States fails to comply with
a request for waiver made by a plaintiff located within the United
States, the court shall impose the costs subsequently incurred in
effecting service on the defendant unless good cause for the failure
be shown.

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

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The court finds that defendant Davis was given the opportunity required by Rule
4(d)(2) to timely waive service, and 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 Davis shall pay to

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the United States Marshal the sum of $81.52, unless within that time defendant files a written

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

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to extend this fourteen-day period.

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2. The Clerk of Court is directed to serve a copy of this order on the U.S.

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Marshal.

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DATED: August 19, 2011
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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