Florence v. Nangalama et al

Filing 66

ORDER signed by Magistrate Judge Kendall J. Newman on 1/15/2015 DEEMING defendant Bakewell's motion for reconsideration is timely filed; defendant Bakewell's 51 motion for reconsideration is GRANTED; and the 3/25/14 order 42 is VACATED. (cc: USM)(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID FLORENCE,

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No. 2:11-cv-3119 GEB KJN P

Plaintiff,
v.

ORDER

A.W. NANGALAMA, et al.,
Defendants.

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On March 25, 2014, the Magistrate Judge issued an order charging defendant C. Bakewell

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for the costs of service of process. On August 15, 2014, defendant Bakewell filed a motion for

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reconsideration of that order.

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Local Rule 303(b), states “rulings by Magistrate Judges . . . shall be final if no

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reconsideration thereof is sought from the Court within fourteen days . . . from the date of service

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of the ruling on the parties.” Id.

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However, it appears that the March 25, 2014 order was inadvertently not served on

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defendant Bakewell. Defendant Bakewell first appeared and answered the third amended

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complaint on August 6, 2014. Accordingly, the court finds defendant’s motion to be timely filed.

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“[A] motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law.” 389 Orange Street

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Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (no clear error where district court did not

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redesignate a cross-claim as an affirmative defense because party did not raise the issue until after

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grant of summary judgment).

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The Federal Rules of Civil Procedure impose a duty on certain defendants “to avoid

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unnecessary costs of serving the summons.” Fed. R. Civ. P. 4(d)(2). That duty is only imposed

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on a defendant “that receives notice of an action in the manner provided in this paragraph,” which

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is by mailing a notice of the action and a “request that the defendant waive service of a

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summons.” Id. If a defendant fails to waive the service of a summons, “the court shall impose

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the costs subsequently incurred in effecting service on the defendant unless good cause for the

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failure be shown.” Fed. R. Civ. P. 4(d).

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Defendant Bakewell avers that she was not personally contacted by the Marshal to request

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a waiver of service. (ECF No. 51 at 3.) Defendant Bakewell declares that she had no knowledge

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of the instant lawsuit or summons until she was personally served on February 25, 2014.

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Although the Marshal mailed summons and a request for a waiver of service on November 19,

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2013, to the California Department of Corrections and Rehabilitation (“CDCR”) and California

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State Prison, Sacramento, defendant Bakewell declares that she resigned from the CDCR in

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September of 2009, and no one from the CDCR contacted her to advise her of the lawsuit or

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service. (ECF No. 51 at 3.)

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Good cause appearing, defendant Bakewell’s motion for reconsideration is granted, and

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the order directing defendant Bakewell to pay the United States Marshal for the costs incurred in

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serving process is vacated.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant Bakewell’s motion for reconsideration is deemed timely filed;

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2. Defendant Bakewell’s motion for reconsideration (ECF No. 51) is granted; and

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3. The March 25, 2014 order (ECF No. 42) is vacated.

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Dated: January 15, 2015

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flor3119.851

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