Calhoun v. Gomez et al

Filing 45

ORDER signed by Magistrate Judge Edmund F. Brennan on 05/20/14 ordering within 14 days from the date of service of this order, defendant Gomez shall pay to the U.S. Marshal the sum of $192.16, unless within that time fe files a written statement showing good cause for failing to waive service. The clerk of the court shall also serve a copy of this order on the U.S. Marshal. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMONT L. CALHOUN,

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No. 2:12-cv-2856-GEB-EFB P

Plaintiff,
v.

ORDER

M. GOMEZ, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The U.S. Marshal has requested reimbursement of expenses incurred in

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personally serving defendant Gomez. ECF No. 32.

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This court previously ordered the Marshal to serve process upon defendant Gomez. ECF

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No. 21. The Marshal was directed to attempt to secure a waiver of service before personally

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serving any defendant. Id. ¶ 2. However, if a waiver of service was not returned within 60 days

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as to 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. ¶ 5.

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The form USM-285/Process Receipt and Return filed by the Marshal shows that the
Marshal mailed defendant a waiver of service on December 19, 2013. ECF No. 31. There is no

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indication on the form showing that the waiver of service was returned. Id. If it was not returned,

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the Marshal was required to complete personal service on defendant. The form shows the total

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charges for personally serving defendant was $192.16. 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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....

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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

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

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do 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 Gomez shall pay to the

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United States Marshal the sum listed above, unless within that time he files a written

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statement showing good cause for failing to waive service.

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2. The Clerk of the Court shall also serve a copy of this order on the U.S. Marshal.
DATED: May 20, 2014.

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