Wilson v. Louisiana Tax Commission et al

Filing 34

ORDER AND REASON granting in part and denying in part 27 Motion to Assess Fees and Costs. Signed by Judge A. J. McNamara on 4/20/2011. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATRICK L. WILSON

CIVIL ACTION

VERSUS

NO. 10-3338

STATE OF LOUISIANA, EX REL
LOUISIANA TAX COMMISSION,
WHITNEY JOSEPH, JR., ASSESSOR
FOR THE PARISH OF ST. JOHN THE BAPTIST
AND ESPARROS PROPERTIES AIRLINE, LLC

SECTION “D” (3)

ORDER AND REASONS
Before the court is a “Motion to Assess Fees and Costs for Refusal to Execute Waiver of
Service” (Doc. No. 27) filed by the Plaintiff, Patrick Wilson (“Wilson”). A Memorandum in
Opposition (Doc. No. 29) was filed by Defendant, Whitney Joseph, Jr., Assessor of St. John the
Baptist Parish. The matter was noticed for submission on April 20, 2011and is deemed
submitted for decision on the records without oral hearing.
Plaintiff’s motion represents, through exhibits and certification from counsel, that
Defendant was afforded ample opportunity to execute a waiver of service. A representative of
Defendant (Jules A. Carville, III, attorney at law) told counsel for Plaintiff that Defendant would
not execute a waiver.1 Plaintiff's counsel made additional efforts to persuade Defendant,2 but

1

See Letter to Plaintiff’s Counsel from Mr. Carville dated October 7, 2010 (advising that
Mr. Joseph received a copy of the complaint but will not sign the waiver of service of summons
provided by plaintiff’s counsel) (Plt.’s Exh. B/Doc. No. 27-3).
2

See Letter from Plaintiff’s Counsel to Mr. Carville dated October 15, 2010 (noting Rule
4(d) and its provisions regarding recoupment of expenses and fees) (Plt.’s Exh. C/Doc. No. 273).
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Defendant nonetheless failed to execute a waiver. Formal service was then made.3 Defendant
filed an answer,4 following the denial of his Motion to Dismiss.5 Plaintiff then filed the motion
for fees and costs that is before the court.
Defendant’s counsel represents that: (1) Mr. Carville did not represent Whitney Joseph;6
(2) The Sheriff’s invoice for service/mileage in the amount of $25.38 does not indicate who
issued it;7 and (3) Exhibit “E”, Plaintiff’s Summary of Expenses, represents an excessive amount
of time for the work described and an excessive hourly rate for the services provided.
Federal Rule of Civil Procedure 4(d)(2) provides:
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)(2).
Rule 4(d)(1) pertaining to requesting a waiver states that “[a]n individual, corporation or
association” that receives notice of a suit and a request for waiver of service “has a duty to avoid

3

Invoice (Pltf’s Exh. “D”/Doc. No. 27-3); Summary of Expenses (Pltf’s Exh “E”/Doc.
No. 27-3); Summons returned executed (Rec. Doc. 13).
4

Answer filed by Whitney Joseph (Doc. No. 33).

5

Order and Reasons dated March 11, 2011 (Doc. No. 19).

6

An attorney, Mr. Jules Carville, did correspond with Plaintiff’s counsel confirming that
Mr. Joseph had received the notice of lawsuit and would not sign the enclosed waiver. It is
undisputed that Mr. Joseph did receive by certified mail the notice of lawsuit and waiver of
service form.
7

See Invoice (Pltf’s Exh. D).
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unnecessary costs of serving the summons.” Id. Accordingly, if a defendant within the United
States fails to comply with a request for waiver, “the court shall impose the costs subsequently
incurred in effecting service on the defendant unless good cause for the failure be shown.”
F.R.C.P. 4(d)(2). Defendant Whitney Joseph has not shown good cause, so an award is required
by Rule 4.
With respect to the cost of service, the amount of $25.38 for service by the St. John
Parish Sheriff appears to be entirely reasonable and sufficiently documented by counsel’s
certification of the invoice and his summary of expenses (Pltf’s Exhs. “D” and “E”). Counsel
also spent $7.10 in postage to the process server. Those costs are reasonable and compensable
under the Rule. Plaintiff also asks for reimbursement of $62.50 for time spent receiving and
reviewing correspondence dated October 7, 2010, telephone consultation with assessor’s
representative and correspondence to counsel for assessor; however, that expense is not
compensable because the Rule permits an award only after a defendant fails to comply with the
waiver request, and then the costs to be awarded are limited to those “later incurred in effecting
service.” Fed. R. Civ. P. 4(d)(2)(A).
Plaintiff's counsel seeks compensation for 3.00 hours of attorney time at the rate of
$250.00 an hour in the full amount of $750.00. Counsel does not itemize the time, but he
represents that he spent time preparing summons, contacting the Sheriff, correspondence
transmitting the summons and complaint and obtaining a certified copy of the complaint and
drafting the motion to recover reasonable expenses. The fees are excessive in light of the fact
that work performed was in large part administrative in nature.
Plaintiff’s counsel did attribute 2.00 hours to the preparation of the motion and

3

supporting papers and that is the only component of counsel's time that is compensable under
Rule 4. The Rule permits an attorney fee award for “any motion required to collect the costs of
service.” F.R.C.P. 4(d)(2)(B). Fees incurred in connection with attempts to make service or
obtain a waiver do not fall within the scope of that language.8 Plaintiff’s counsel did not submit
contemporaneous time records that reflect the exact amount of time he spent preparing this
motion, so a reasonable estimate is necessary. The court finds that $400 is a reasonable amount
of compensation for the preparation and filing of the motion and supporting papers.
Clearly, the defendant had notice, received the plaintiff’s request for waiver of service
and refused to respond despite Plaintiff’s counsel’s efforts. Defendant does not dispute that the
plaintiff complied with the dictates Rule 4(d)(1)( c) in sending the waiver, notice of the lawsuit
including admonition regarding the dictates of Rule 4 and results of any unreasonable refusal to
waive service of process. Defendant also included a prepaid means of returning the waiver form
as required. Accordingly and for all of the foregoing reasons,
IT IS ORDERED that the Plaintiff’s Motion to Assess Fees and Costs is GRANTED IN
PART in the full amount of $432.48 – i.e., $400 (Reasonable Attorney’s Fees) + $7.10 (Postage)
+ $25.38 (Fees of the St. John the Baptist Parish Sheriff); in all other respects, the motion is
DENIED.
New Orleans, Louisiana, this 20thday of April, 2011.
___
____________________________________
A. J. McNAMARA
UNITED STATES DISTRICT COURT

8

U.S. Engine Production, Inc., 2011 WL 855807 (S. D. N. Y. March 7, 2011); Maranto v.
Dillard National Bank, 230 F.R.D. 478, 479 (W. D. La. July 27, 2005).
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