Kennard v. San Joaquin County et al

Filing 18

ORDER signed by Magistrate Judge Allison Claire on 6/1/2015 ORDERING defendant Moore shall pay to the US Marshal the sum of $190.38, within 14 days, unless within that time defendant files a written statement SHOWING GOOD CAUSE for his failure to waive service. The Clerk shall serve a copy of this order on the USM. (cc: USM) (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

THOMAS O. KENNARD,

12

Plaintiff,

13
14
15

v.

No. 2:14-cv-1750 AC P

ORDER

SAN JOAQUIN COUNTY, et al.,
Defendants.

16
17

Plaintiff is a civil detainee proceeding pro se and in forma pauperis is this civil rights

18

action filed pursuant to 48 U.S.C. § 1983. On January 15, 2015, the court ordered the United

19

States Marshal to serve process in this action upon defendants San Joaquin County and Sheriff

20

Steven Moore. ECF No. 6. The Marshal was directed to attempt to secure a waiver of service

21

before attempting personal service. If a waiver of service was not returned within sixty days, the

22

Marshal was directed to effect personal service on the defendant in accordance with the

23

provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c), without

24

prepayment of costs. The Marshal was further directed to file the return of service with evidence

25

of any attempt to secure a waiver of service and evidence of all costs subsequently incurred in

26

effecting personal service.

27
28

On May 28, 2015, the United States Marshal filed a return of service with a USM-285
form showing total charges of $190.38 for effecting personal service on defendant Moore. ECF
1

1

No. 16. The return shows that a waiver of service form was mailed to the defendant on January

2

30, 2015, and that no response was received (although an answer was filed on March 31, 2015, on

3

behalf of both defendant Moore and San Joaquin County).

4

Rule 4(d) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

5

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. . . .

6
7
8

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:

9

(A) the expenses later incurred in making service; and

10

(B) the reasonable expenses, including attorney’s fees, of any
motion required to collect those service expenses.

11
12
13
14

Fed. R. Civ. P. 4(d)(1), (2)(A), (B).
The court finds that defendant Sheriff Steven Moore was given the opportunity required
by Rule 4(d) to waive service and failed to comply with the request.

15

Accordingly, IT IS HEREBY ORDERED that:

16

1. Within fourteen days after the filing date of this order, defendant Moore shall pay to

17

the United States Marshal the sum of $190.38, unless within that time defendant files a written

18

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

19

extend this fourteen-day period.

20
21
22
23

2. The Clerk of the Court is directed to serve a copy of this order on the United States
Marshal.
SO ORDERED.
DATED: June 1, 2015

24
25
26
27
28
2