Whitsitt v. Patricio Enterprises et al

Filing 21

ORDER signed by Magistrate Judge Gregory G. Hollows on 3/17/14 ORDERING that within 14 days defendant New Breed Logistics shall pay to the USM the sum of $164.32, unless within that time defendant files a written statement showing good cause for its failure to waive service. The Clerk is directed to serve a copy of this order on the USM and defendant at the address indicated on the filed process form. (cc: USM) (Manzer, C)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

WILLIAM J. WHITSITT,

11

Plaintiff,

12
13

No. 2:13-cv-0118 KJM GGH PS

v.

ORDER

PATRICIO ENTERPRISES, et al.,

14

Defendants.

15
Plaintiff is proceeding pro se and in forma pauperis in this action. This proceeding was

16
17

referred to this court by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1).

18

On September 30, 2013, the court ordered the United States Marshal to serve process

19

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

20

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

21

that defendant bear costs of such service unless it shows good cause for failure to return the

22

waiver. See Fed. R. Civ. P. 4(d)(1); 28 U.S.C. §566(c).
On March 11, 2014, the United States Marshal filed a return of service with a USM-285

23
24

form showing total charges of $164.32 for effecting personal service on defendant New Breed

25

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

26

December 10, 2013, and that no response was received.

27

/////

28

/////
1

1
2
3
4
5
6
7
8
9
10
11

Rule 4(d) of the Federal Rules of Civil Procedure provides, in pertinent part, as 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.
Fed. R. Civ. P. 4(d)(1), (2)(A), (B).
The court finds that defendant New Breed Logistics was given the opportunity required by
Rule 4(d) to waive service and has failed to comply with the request.

12

Accordingly, IT IS HEREBY ORDERED that:

13

1. Within fourteen days from the date of this order defendant New Breed Logistics shall

14

pay to the United States Marshal the sum of $164.32, unless within that time defendant files a

15

written statement showing good cause for its failure to waive service. The court does not intend

16

to extend this fourteen day period.

17

2. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal.

18

3. The Clerk shall serve this order on New Breed Logistics at the address indicated on the

19

filed process form.

20

Dated: March 17, 2014

21

/s/ Gregory G. Hollows

22

UNITED STATES MAGISTRATE JUDGE

23

GGH:076/Whitsitt0118.usm-cost

24
25
26
27
28
2