Reece v. Basi, et al

Filing 28

ORDER signed by Magistrate Judge Allison Claire on 12/3/2012 ORDERING that within 14 days, defendant Amrick Basi shall pay to the USM the sum of $207.00, unless within that time defendant files a written statement showing good cause for his failure to waive service; and the Clerk is to serve a copy of this order on the USM. (cc: USM)(Yin, K)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHARLES G. REECE,

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Plaintiff,

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No. 2: 11-cv-2712 GEB AC P

vs.
AMRICK BASI, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action
seeking relief pursuant to 42 U.S.C. § 1983.
By order filed on March 21, 2012, the court directed the United States Marshal to

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serve process upon, inter alia, defendant Amrick Basi in this case. The Marshal was directed to

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attempt to secure a waiver of service before attempting personal service on defendant. If a

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waiver of service was not returned within sixty days, the Marshal was directed to effect personal

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service on the defendant in accordance with the provisions of Rule 4 of the Federal Rules of

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Civil Procedure and 28 U.S.C. § 566(c), without prepayment of costs, and to file the return of

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service with evidence of any attempt to secure a waiver of service and with evidence of all costs

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subsequently incurred in effecting personal service.
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On October 31, 2012, the United States Marshal filed a return of service with a

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USM-285 form showing total charges of $249.00 for effecting personal service on defendant

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

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March 23, 2012; returned from the prison facility on April 3, 2012; identifying defendant Basi as

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a contract employee no longer employed at CSP-Solano,1 forwarded on April 6, 2012, from

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which no response was received. Thereafter, on June 25, 2012, the marshal mailed the waiver

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form to the defendant’s last known address “per registry,” again with no result, after which the

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form was evidently once more forwarded on June 27, 2012. When the waiver was not returned

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as of October 4, 2012, the marshal assigned personal service which service was executed on

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October 9, 2012. The individual served on defendant Basi’s behalf is identified as his mother,

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Mrs. Basi.

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Rule 4(d) 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 Rule 4(e), (f), or (h) has a duty to avoid unnecessary
expenses of serving the summons.

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Fed. R. Civ. P. 4(d)(1).
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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)(2).

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The court finds that defendant Amrick Basi was given the opportunity required by

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

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Amrick Basi will be ordered to pay service expenses. However, the amount claimed on the

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California State Prison-Solano.
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USM-285 form will be reduced to reflect that service in this case was performed simultaneously

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with service in an urelated case, 2:11-cv-0369 GEB AC P. While 28 C.F.R. § 0.114 provides

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that the service fee applies to each item served, mileage will be apportioned between the two

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cases in which Amrick Basi’s mother was served on October 9, 2012. The $84.00 mileage

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charge claimed on the USM-285 form in this case will be reduced to $42.00, reducing the total

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charge to $207.00.

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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 Amrick Basi shall

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pay to the United States Marshal the sum of $207.00, unless within that time defendant files a

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written statement showing good cause for his failure to 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 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: December 3, 2012.

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/s/
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:009

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reec2712.taxcost

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