Robinson v. Prisil, et al.

Filing 35

ORDER signed by Magistrate Judge Allison Claire on 7/10/2017 ORDERING the Clerk to alter the docket to reflect that defendant "Yu" is "Yuo", defendant "Angie" is "Angie Jin", and defendant "Janet" is "Janet Meyer-Mitchell". The court's 33 order directing defendants Yuo, Jin and Meyer-Mitchell to submit the costs of personal service to the USM is VACATED. (cc: USM) (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROOSEVELT J. ROBINSON, 12 Plaintiff, 13 14 No. 2:14-cv-790 MCE AC P v. ORDER PRISIL, et al., 15 Defendants. 16 Defendants Yuo, Jin, and and Meyer-Mitchell1 were served by the United States Marshal 17 18 on May 11, 2017. ECF Nos. 29 & 32. The Marshal subsequently filed a request for 19 reimbursement for costs of personal service (ECF No. 31) after indicating that these defendants 20 failed to respond to a waiver of service form mailed on February 9, 2017 (ECF No. 32). The 21 court ordered defendants to submit the reimbursement unless, within fourteen days, they filed a 22 written statement which demonstrated good cause for their failure to waive service. ECF No. 33. 23 Defendants have filed a reply to the court’s order. For the reasons stated below, the court will 24 vacate its previous order requiring defendants to submit reimbursement. Federal Rule of Civil Procedure 4(d)(1) imposes a duty on defendants “to avoid 25 26 27 28 1 Plaintiff named these defendants as “Yu”, “Angie”, and “Janet” in his amended complaint and the court directed service for them based on this information. See ECF Nos. 13 & 20. The Clerk of Court will be directed to update the docket to reflect their correct names. 1 1 unnecessary expenses of serving the summons.” Rule 4(d)(2) requires that the court tax costs of 2 service of process on any defendant who fails to show good cause for failing to sign and return a 3 timely waiver of service. Fed. R. Civ. P. 4(d)(2). Here, defendants appear to argue that they 4 never received the waiver forms. They note that the requests for waiver were served at Solano 5 County Jail – the location specified by plaintiff in his complaint – where each defendant no 6 longer worked at the time of the service attempt. Defendants’ counsel states that Yuo last worked 7 at the jail in June of 2014, Jin last worked there in October of 2016, and Meyer-Mitchell last 8 worked there in November of 2014. ECF No. 34 at 2. Good cause for excusing failure to waive 9 service exists where the defendants never received the request for waiver. See Double S Truck 10 Line, Inc. v. Frozen Food Express, 171 F.R.D. 251, 253 (D. Minn. 1997) (citing 1993 Advisory 11 Committee Notes to Rule 4). 12 IT IS THEREFORE ORDERED that: 13 1. The Clerk of Court shall alter the docket to reflect that: 14 a. Defendant “Yu” is appropriately “Yuo”; 15 b. Defendant “Angie” is appropriately “Angie Jin”; and 16 c. Defendant “Janet” is appropriately “Janet Meyer-Mitchell.” 17 2. The Court’s order directing defendants Yuo, Jin, and Meyer-Mitchell to submit the 18 costs of personal service to the US Marshal (ECF No. 33) is VACATED. 19 DATED: July 10, 2017 20 21 22 23 24 25 26 27 28 2

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