Riley v. Cardozo et al

Filing 83

ORDER granting 70 Motion for service costs. Signed by Magistrate Judge Monte C. Richardson on 10/19/2017. (ADM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
BARBARA J. RILEY,
Plaintiff,
v.

CASE NO. 3:16-cv-961-J-34MCR

MICHAEL A. CARDOZO, et al.,
Defendants.
________________________________/
ORDER
THIS CAUSE is before the Court on Pro Se Plaintiff’s Opposed Motion to
Recover Service Costs from Pro Se Defendant Esquire Jay S. Markowitz with 2
Exhibits Attached with Case Law with Local Rule 3.01(g) Certification (“Motion”)
(Doc. 70) and the Affirmation of Jay Markowitz in Opposition to Plaintiff’s
Reinstated Motion for Service Costs (“Opposition”) (Doc. 80).
Plaintiff seeks to recover the cost of service of process upon Defendant
Markowitz pursuant to Rule 4(d), Fed.R.Civ.P., in the amount of $90.00, for
Defendant’s failure to waive formal service. Rule 4(d) provides in relevant part:
(1) Requesting a Waiver. 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. The plaintiff
may notify such a defendant that an action has been commenced
and request that the defendant waive service of a summons. . . .
(2) Failure to Waive. 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).
The Motion provides that Plaintiff asked Defendant Markowitz to waive
formal service of process on September 7, 2016; Defendant refused, without
good cause, to waive formal service of process on September 16, 2016; and the
actual, formal service of process on Markowitz was completed on October 4,
2016, for which Plaintiff paid $90.00 to N.Y.C. Process Server James Bell. (Doc.
70.) Plaintiff supports her Motion by attaching a copy of the proof of service
completed by the process server, a letter by Markowitz dated September 12,
2016,1 and his rejection of the waiver of the service of summons. (Docs. 70-1 &
70-2.)
In his Opposition, Defendant essentially argues that Plaintiff’s Amended
Complaint should be dismissed for lack of personal jurisdiction, pursuant to this
Court’s findings in the June 28, 2017 Order. (Doc. 80.) Defendant argues that
under the circumstances here, he should have never been obligated to accept
service of the Complaint, and that the imposition of service costs is neither

1

This letter states, in relevant part: “By this letter, I formally reject service of the
Complaint against me by mail in this matter, and I am also enclosing my rejection of
service in this manner that I am concurrently sending to the plaintiff. . . . I ask that this
letter be electronically filed in the minutes of this lawsuit to clearly put all sides on notice
that I have rejected service by mail of the pleadings, and to prevent the plaintiff from
seeking a default judgment against me prior to properly personally serving me with the
pleadings.” (Doc. 70-1 at 3-4.)
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appropriate nor justified. (Id. at 6.)
However, Defendant does not cite any legal authority for the proposition
that his defenses constitute good cause for his failure to waive service of process.
Rather, it appears that the opposite is true.2 See Fed.R.Civ.P. 4, 1993 Advisory
Committee Note (“It is not a good cause for failure to waive service that the claim
is unjust or that the court lacks jurisdiction. Sufficient cause not to shift the cost
of service would exist, however, if the defendant did not receive the request or
was insufficiently literate in English to understand it.”) & Fed.R.Civ.P. 4, Duty to
Avoid Unnecessary Expense of Serving a Summons (“‘Good cause’ does not
include a belief that the lawsuit is groundless, or that it has been brought in an
improper venue, or that the court has no jurisdiction over this matter or over the
defendant or the defendant’s property.”); Double “S” Truck Line, Inc. v. Frozen
Food Express, 171 F.R.D. 251, 253 (D. Minn. 1997) (same); see also Butler v.
Crosby, No. 3:04CV917-J-32MMH, 2005 WL 3970740, *2-3 (M.D. Fla. June 24,
2005) (addressing the good cause standard under Rule 4(d) and finding
defendants have failed to establish good cause for their failure to waive formal
service).
Because the Court finds that Defendant Markowitz has failed to establish

2

For his affirmative defenses, Defendant Markowitz alleges failure to state a
cause of action, lack of personal jurisdiction and subject matter jurisdiction, the doctrine
of estoppel, the doctrine of waiver, the doctrine of latches, the doctrine of unclean
hands, and the doctrines of collateral estoppel and res judicata. (Doc. 65.)
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good cause for his failure to waive formal service, the Court will impose on him
the costs incurred in making service, pursuant to Rule 4(d).3 Further, Defendant
has not directly challenged the amount of service costs that Plaintiff seeks to
recover. As such, Plaintiff will recover the full amount requested.
Accordingly, it is ORDERED:
1.

The Motion (Doc. 70) is GRANTED.

2.

Within thirty (30) days of the date of this Order, Defendant

Markowitz shall remit payment in the amount of $90.00 to Plaintiff.
DONE AND ORDERED at Jacksonville, Florida, on October 19, 2017.

Copies to:
Counsel of Record
Any Unrepresented Party

3

Defendant Markowitz has answered the Second Amended Complaint, and any
preceding complaint, without challenging the adequacy of service of process. (See
Doc. 65.)
4