Anderson v. Benedict

Filing 16

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/19/12 ORDERING defendant Benedict to PAY to the U.S. Marshal the sum of $65.20 within 14 days from the date of this order, unless within that time defendant files a written statement showi ng good cause for his failure to waive service. The court does not intend to extend this 14 day period. The Clerk of the Court is DIRECTED to serve a copy of this order on the U.S. Marshal; the Clerk shall serve Benedict at the address listed in the returned summons (cc:USM). (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRYON ANDERSON,

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Plaintiff,

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vs.

No. CIV. S-10-2833 LKK GGH PS

HERB BENEDICT,
Defendant.

ORDER
/

Plaintiff is proceeding pro se and in forma pauperis in this action. This
proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1).
On September 27, 2011, the court ordered the United States Marshal to serve

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process upon the defendant in this case within ninety days. The waiver of service form indicates

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that defendant was notified that failure to waive service of summons would result in a

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requirement that defendant bear costs of such service unless he shows good cause for failure to

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return the waiver. See Fed. R. Civ. P. 4(d)(1); 28 U.S.C. §566(c).

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On January 11, 2012, the United States Marshal filed a return of service with a

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USM-285 form showing total charges of $65.20 for effecting personal service on defendant

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

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November 4, 2011, 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

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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. . . .
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 defendant Benedict 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 Benedict shall pay

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to the United States Marshal the sum of $65.20, unless within that time defendant files a written

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statement showing good cause for his 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.

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Marshal; the Clerk shall serve Benedict at the address listed in the returned summons.

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DATED: January 19, 2012
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076/Anderson2833.usmcost.wpd

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