Chappell v. Duc et al

Filing 33

ORDER signed by Magistrate Judge Gregory G. Hollows on 5/3/12 ORDERING that within fourteen days from the date of this order Defendant Strohmaier shall pay to the USM the sum of $135.50, unless within that time Defendant files a written statement showing good cause for his failure to waive service. The Court does not intent to extend this fourteen day period. The Clerk is directed to serve a copy of this order on the USM.(Mena-Sanchez, L)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9

REX CHAPPELL,
Plaintiff,

11
12
13

No. CIV S-10-2676 KJM GGH P

Defendants.

10

ORDER

vs.
DUC, et al.,

/

14
15
16
17

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action
seeking relief pursuant to 42 U.S.C. § 1983.
On January 20, 2012, the court ordered the United States Marshal to serve process

18

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

19

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

20

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

21

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

22

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

23

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

24

effecting personal service.

25
26

On April 27, 2012, the United States Marshal filed a return of service with a
USM-285 form showing total charges of $135.50 for effecting personal service on defendant
1

1

Strohmaier. The form shows that a waiver of service form was mailed to the defendant on

2

January 23, 2012, and that no response was received.
Rule 4(d) of the Federal Rules of Civil Procedure provides, in pertinent part, as

3
4

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. . . .

5
6

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.

7
8
9
10
11

Fed. R. Civ. P. 4(d)(1), (2)(A), (B).
The court finds that defendant Strohmaier was given the opportunity required by

12
13

Rule 4(d) to waive service and has failed to comply with the request.

14

Accordingly, IT IS HEREBY ORDERED that:

15

1. Within fourteen days from the date of this order defendant Strohmaier shall

16

pay to the United States Marshal the sum of $135.50, unless within that time defendant files a

17

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

18

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.

19
20

Marshal.

21

DATED: May 3, 2012
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

22
23
GGH:mp

24

chap2676.taxcost

25
26

2