Sanchez v. Pfister et al
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 6/11/2014: Defendant Hamilton SHALL submit payment for these service expenses to the Clerk within twenty-one days of the date of this Order, in the form of a check payable to the United States Marshal Service in the amount of $259.96. IT IS SO ORDERED. (cc:pla)(JRK, ilcd)
E-FILED
Wednesday, 11 June, 2014 04:48:52 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
ERNESTO SANCHEZ,
Plaintiff,
v.
RANDY S. PFISTER, et al,
Defendants.
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Case No. 13-cv-1527
ORDER & OPINION
This matter is before the Court on the issue of service expenses pursuant to
Federal Rule of Civil Procedure 4(d)(2). The Court first sent a request for waiver of
service to Defendant Helen Hamilton on January 27, 2014. (Doc. 8). This waiver
was returned unexecuted, but the Illinois Department of Corrections (“IDOC”)
provided a forwarding address. The Court then sent a new request for waiver of
service on February 18, 2014, to this forwarding address. (Doc. 11). Defendant
Hamilton failed to return this waiver within 30 days, so the Court directed the
United States Marshals to attempt formal service upon Defendant Hamilton. A
Marshal served the summons and complaint on Defendant Hamilton on April 16,
2014. (Doc. 18). The cost of making this service, borne by the federal government
because of Plaintiff’s in forma pauperis status, was $259.96. (Doc. 18 at 1).
For purposes of evaluating whether Defendant Hamilton would be required
to pay the expenses of service pursuant to Rule 4(d)(2), she was ordered to show
cause why she failed to return the waiver of service. (Doc. 23). In response to this
Order, Defendant Hamilton filed a statement that she was on vacation out of state
from the date the waiver of service was sent until ten days later, and that she does
not remember receiving the waiver of service. (Doc. 27).
Pursuant to Rule 4(d)(2), “[i]f 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 . . . the
expenses later incurred in making service.” Fed. R. Civ. P. 4(d)(2). A defendant that
fails to comply is “given an opportunity to show good cause for the failure, but
sufficient cause should be rare.” Fed. R. Civ. P. 4 advisory committee’s note (1993
Amendments, Subdivision (d)).
The docket reflects that the Clerk sent the request for waiver of service by
mail to Defendant Hamilton at the address provided by IDOC. There has long been
a rebuttable presumption in the law that properly addressed mail that is sent is
delivered. See, e.g., Bobbitt v. Freeman Cos., 268 F.3d 535, 538 (7th Cir. 2001). The
mailed waiver request was not returned to the Court as undeliverable, and there is
no other indication it was not delivered to the address on the envelope. Defendant
Hamilton was later personally served at this same address, so the address was
apparently accurate. Defendant Hamilton’s lack of memory of receiving the waiver
does not rebut the presumption that it was delivered.
If Defendant Hamilton simply failed to open the piece of mail containing the
waiver request, sent by the Court, that is not good cause for failing to return the
waiver. Even if she was on vacation when it was delivered, she would have had
ample time to return the waiver after she returned home and checked the mail
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delivered while she was gone. She submits no evidence of any other reason that
would excuse this failure to open or act upon this important document. Thus,
Defendant Hamilton did not have good cause for failing to return the waiver of
service sent to her, and must pay the expense of service by the Marshal.
Defendant Hamilton SHALL submit payment for these service expenses to
the Clerk within twenty-one days of the date of this Order, in the form of a check
payable to the United States Marshal Service in the amount of $259.96. IT IS SO
ORDERED.
Entered this 11th day of June, 2014.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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