Salat v. Pirotto et al

Filing 20

ORDER signed by Magistrate Judge Allison Claire on 11/10/14 ORDERING that The 10/28/14, order to show cause, 14 , is DISCHARGED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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IMHOTEP SALAT,

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No. 2:14-cv-1468-MCE-AC

Plaintiff,
v.

ORDER

MICHAEL PIROTTO, ET AL.,
Defendants.

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On October 28, 2014, the court issued an order to show cause requiring defendant Michael

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Pirotto (“Defendant Pirotto”) to reimburse the United States Marshals Service (“USM”) for

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personal service of process under Rule 4(d)(2) of the Federal Rules of Civil Procedure because he

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failed to waive service, unless he filed a written statement showing good cause for his failure to

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waive. ECF No. 14. On November 4, 2014, Defendant Pirotto filed his response to the court’s

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order, arguing that he failed to waive service for good cause because he never received a request

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to waive service from the USM. ECF No. 16.

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The court finds the fact that Defendant Pirotto never received his request from the USM

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constitutes good cause for failure to waive service. Federal Rule of Civil Procedure 4(d)(1)

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imposes a duty on defendants “to avoid unnecessary expenses of serving the summons.” Rule

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4(d)(2) requires that the court tax costs of service of process on any defendant who fails to show

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good cause for failing to sign and return a timely waiver of service. Fed. R. Civ. P. 4(d)(2). The
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advisory committee notes provide two examples of when good cause can be established: when a

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defendant does not receive the request or when a defendant is insufficiently literate in English to

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understand it. Fed. R. Civ. P. 4(d) Advisory Committee’s Note (1993 Amendments). According

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to Defendant Pirotto, he never received the USM’s request to waive service. ECF No. 16.

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Accordingly, the court finds that Defendant Pirotto has shown good cause for failure to waive

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service and declines to order him to reimburse the USM.

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1. The October 28, 2014, order to show cause, ECF No. 14, is discharged.

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DATED: November 10, 2014

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