Green v. Quick et al

Filing 40

ORDER GRANTING IN PART AND DENYING WITHOUT PREJUDICE IN PART 5 Motion for Issuance; DENYING WITHOUT PREJUDICE 26 Motion for Taxation of Costs; GRANTING 27 Motion for Extension of Time; and DENYING 28 Motion for Order. Plaintiff is GRANTED an extension of time, up to and including January 13, 2017, to effect service upon Defendants Angela Howser and Jack Howser. Also, the Clerk is DIRECTED to re-issue summonses for service of process on Defendants Angela Howser and Jack Howser by the United States Marshal Service and the United States Marshal Service is DIRECTED to serve the complaint on Defendants Angela and Jack Howser. Signed by Magistrate Judge Donald G. Wilkerson on 11/30/2016. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JADE GREEN,

)
)
)
Plaintiff,
)
)
v.
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CHRIS QUICK, RUSSELL ADAMS, JACK )
)
HOWSER and ANGELA HOWSER,
)
)
Defendants.

Case No. 3:16-cv-863-MJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Plaintiff, Jade Green, filed this suit on July 29, 2016, alleging Defendants Chris Quick, the
State’s Attorney for Lawrence County, Illinois, Russell Adams, the Sherriff of Lawrence County,
Angela Howser, Plaintiff’s mother, and Jack Howser, Plaintiff’s stepfather, violated her
constitutional rights. Soon after filing her complaint, Plaintiff filed a series of motions related to
service, or the inability to effect service, on defendants. These motions, including Plaintiff’s
motion to issue summons and to assess costs (Doc. 5), motion to assess costs (Doc. 26), motion for
extension of time to serve defendants (Doc. 27), and motion for pre-judgment attachment order
(Doc. 28), are now before the Court.
MOTION TO ISSUE SUMMONS AND TO ASSESS COSTS (DOC. 5) AND MOTION FOR EXTENSION OF
TIME TO SERVE DEFENDANTS (DOC. 27)
In this motion, Plaintiff asserts that she mailed a copy of the complaint, along with a Notice
of Lawsuit and Waiver of Service of Summons to Angela and Jack Howser (“the Howser
Defendants”); however, Plaintiff claims that the Howser Defendants failed, and refused to pick up
their certified mail from the post office and did not execute the waivers of service necessary to
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serve them with process. Accordingly, Plaintiff asks the Court to enter an order directing the
Clerk to issue summonses for the Howser Defendants, authorize that the summonses be served by
the United States Marshal’s office, and assess the costs of said service to the Howser Defendants.
Also, Plaintiff asks the Court to award $700.00 in attorney’s fees incurred in bringing this action,
preparing the summonses and effectuating service upon the Howser Defendants.
With respect to Plaintiff’s request that the Clerk issue summonses for the Howser
Defendants and authorize that the summonses be served by the United States Marshal’s office, her
motion is GRANTED. The Clerk of Court is DIRECTED to re-issue summonses for service of
process on Defendants Angela Howser and Jack Howser by the United States Marshal Service and
the United States Marshal Service is DIRECTED to serve the complaint on Defendants Angela
and Jack Howser.
Insofar as Plaintiff’s motion requests that the cost of service be assessed to the Howser
Defendants and that she be awarded $700.00 in attorney’s fees, her motion is DENIED
WITHOUT PREJUDICE. Plaintiff has failed to provide sufficient evidence for the Court to
award fees or assess costs of service at this time. More specifically, while Rule 4 of the Federal
Rules of Civil Procedure indicates that the court must impose on a defendant who fails to return a
waiver the expenses later incurred in making service and reasonable expenses, including
attorney’s fees, such imposition of costs may only occur if the waiver was not returned without
good cause.

In this instance, there is insufficient evidence to establish that the Howser

Defendants’ failure to waive service was without good cause. Further, Plaintiff has failed to
substantiate her request for $700.00 in attorney’s fees. If Plaintiff again seeks costs, including
attorney’s fees, associated with serving the Howser Defendants, she is directed to provide
evidence to substantiate the costs and fees she seeks.
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In light of this Order, Plaintiff’s Motion for Extension of Time to Serve Defendants Angela
Howser and Jack Howser (Doc. 27) is GRANTED. Plaintiff is GRANTED an extension of time,
up to and including January 13, 2017, to effect service upon Defendants Angela Howser and Jack
Howser.
MOTION TO ASSESS COSTS (DOC. 26)
In this motion, Plaintiff asks the Court to enter an order assessing costs against Defendant
Quick and Defendants Angela and Jack Howser in the amount of $525.00 (1 1/2 hours) for
attorney’s fees and $338.08 for service costs, due to these Defendants’ failure to file their waiver
of service of summons or entry of appearance “within the time allowed by Rule.” Plaintiff’s
Motion is DENIED WITHOUT PREJUDICE. Plaintiff’s motion must be denied at this time as
it is not sufficiently substantiated. First, Plaintiff has not indicated on what date the waivers were
sent to each defendant and, moreover, Plaintiff failed to attach the waivers in support of this
motion to evidence proper service. Further, although Plaintiff indicates that Defendants failed to
file their waivers “within the time allowed by Rule”, she failed to specifically cite what rule she is
referring to. Notably, Rule 4 of the Federal Rules of Civil Procedure provides that defendants
should be given a “reasonable amount of time of at least 30 days after the request was sent” to
return the waiver. As it is not clear what date the waivers were sent and when they were directed
to be returned, Plaintiff has failed to establish that the waivers were returned out of time.
Moreover, Rule 4 only allows Plaintiff to receive expenses, including attorney’s fees, if the
defendant’s failure to return the waiver was without good cause. This issue has not been
addressed by Plaintiff. Finally, Plaintiff has failed to provide substantiation for the costs and fees
she seeks.

For these reasons, Plaintiff’s motion to assess costs is DENIED WITHOUT

PREJUDICE. Plaintiff is GRANTED LEAVE to refile this motion, provided she corrects the
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deficiencies pointed out in this Order.
MOTION FOR PRE-JUDGMENT ATTACHMENT ORDER (DOC. 28)
In this motion, Plaintiff asks the Court to enter an order for attachment to assert jurisdiction
over the Howser Defendants, accept the Bond filed by Plaintiff , direct that the Sheriff of Richland
and Saline counties attempt service upon the Howser Defendants, and direct the Clerk to publish
notice in Saline and Richland counties, as provided by statute. Plaintiff’s motion is DENIED.
The Court has reviewed the authority provided by Plaintiff in her motion and finds that it does not
support a finding that attachment in this instance is appropriate based on the evidence before the
Court. Moreover, any request for attachment is premature as no default judgment against the
Howser Defendants has been sought, or entered, and the Court has directed that service upon the
Howser Defendants be effected by the United States Marshal’s office.
IT IS SO ORDERED.
DATED: November 30, 2016

DONALD G. WILKERSON
United States Magistrate Judge

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