Maddalone v. Solano County et al

Filing 56

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/8/2013 re: 52 Request ORDERING that within 14 days from the date of service of this order, defendant Barrientos shall pay to the United States Marshal the sum of $64.13, unless within that time Barrientos files a written statement showing good cuase for failing to waive service; the Clerk shall serve a copy of this order on the USM. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN MADDALONE,

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No. 2:11-cv-946-KJM-EFB P

Plaintiff,
v.

ORDER

SOLANO COUNTY, et al.,
Defendants.

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In this action, the United States Marshal has requested reimbursement of expenses
incurred in personally serving defendant Barrientos. ECF Nos. 51, 52.
This court previously ordered the Marshal to serve process upon defendant Barrientos.

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ECF No. 30. The Marshal was directed to attempt to secure a waiver of service before personally

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serving any defendant. Id. However, if a waiver of service was not returned within 60 days as to

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any defendant, the Marshal was directed to (1) personally serve that defendant without

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prepayment of costs under Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c);

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and (2) file the return of service with evidence of attempts to secure a waiver and costs

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subsequently incurred in effecting personal service. Id.

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The form USM-285/Process Receipt and Return filed by the Marshal on August 29, 2013,

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shows that the Marshal mailed defendant Barrientos a waiver of service on April 23, 2013. ECF.

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No. 51. The form also includes a notation that the waiver of service was not returned. Id. The
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Marshal was therefore required to complete personal service on defendant Barrientos. The form

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shows total charges for personally serving defendant Barrientos of $64.13. 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 that defendant

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

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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 Barrientos shall pay to

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the United States Marshal the sum of $64.13, unless within that time Barrientos files a written

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statement showing good cause for failing to waive service.

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2. The Clerk shall serve a copy of this order on the U.S. Marshal.
Dated: October 8, 2013.

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