Vandenberg v. Hamilton

Filing 22

ORDER granting in part and denying in part 9 Motion for Bill of Costs. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

David Vandenberg
v.

Civil No. 13-cv-040-JL

Judith Hamilton

O R D E R
Before the court in this diversity action is plaintiff
David Vandenberg’s motion to recover the costs of service of the
summons (doc. no. 9), pursuant to Rule 4(d) of the Federal Rules
of Civil Procedure.
no. 13).

Defendant, Judith Hamilton, objects (doc.

The motion is granted in part and denied in part.1
Discussion

Rule 4(d)(1) imposes upon individuals like Hamilton a duty
to avoid unnecessary expenses associated with formal service of
the summons in a civil case.

Fed. R. Civ. P. 4(d)(1).

The rule

authorizes a plaintiff to request that the defendant waive

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Also pending is Hamilton’s motion to dismiss (doc. no. 14),
in which she asserts that her status as a court-appointed
guardian ad litem in a child custody dispute renders her
absolutely immune from Vandenberg’s claims. This court declines
to address the merits of the motion to dismiss, or the issues
therein, at this time. See Marcello v. Maine, 238 F.R.D. 113,
116 (D. Me. 2006) (costs may be recovered from defendant who
fails to execute valid waiver of service, even if underlying
complaint lacks merit).

service by mailing that defendant the prescribed notice, two
copies of the waiver form, the complaint, and a prepaid reply
envelope, and by providing at least 30 days for the defendant to
return the signed waiver.

See id.

If the defendant fails,

without good cause, to execute the waiver, the plaintiff is
entitled to an award of costs.

See Fed. R. Civ. P. 4(d)(2).

Recoverable costs include the expenses later incurred in serving
the summons, and reasonable expenses incurred in filing a motion
to collect such costs.

See id.

A pro se plaintiff may not

recover costs that would be analogous to an attorney’s fee for
time spent preparing the motion.

See Marcello v. Maine, 238

F.R.D. 113, 117 (D. Me. 2006).
Vandenberg bears the burden of showing that he delivered to
Hamilton a valid notice of action and request for waiver,
pursuant to Rule 4(d)(1).

See Simanonok v. Lamontagne, 181 F.3d

80, 1998 WL 1085670, *2 (1st Cir. 1998) (unpublished table
decision); accord Hopper v. Wyant, No. 12-5103, 2012 WL 5871031,
*1 (10th Cir. Nov. 21, 2012).

Once the plaintiff’s burden is

met, the burden shifts to Hamilton to show good cause for
failing to execute the waiver.

See Rollin v. Cook, 466 F. App’x

665, 667 (9th Cir. 2012).
Vandenberg has shown that he mailed a valid notice of
waiver form, the complaint, and other documents to Hamilton, in

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accordance with Rule 4(d)(1), and that Hamilton received those
documents more than thirty days before Vandenberg arranged for
Hamilton to be served.

Hamilton does not deny receipt of the

proper forms by mail; rather, she asserts that because she
routinely discards Vandenberg’s correspondence, which she deems
harassing, and because she believed she would be immune from any
claims he could assert, she did not know that this lawsuit
existed, or that Vandenberg’s correspondence could affect her
rights.

Without more, this court cannot deem Hamilton’s failure

to familiarize herself with the import of legal documents
bearing this court’s caption, and sent to her via certified
mail, to be “good cause” for failing to execute a waiver.
Accordingly, pursuant to Rule 4(d)(2), the court must impose the
costs of service that Vandenberg incurred when Hamilton failed
to execute the waiver without good cause.
Vandenberg incurred service costs in the amount of $40.34,
after Hamilton failed to execute the waiver.
recoverable.

Those costs are

The amount Vandenberg spent on February 14, 2013,

to send the notice of waiver to Hamilton, however, is not
recoverable, see Sandoval v. Little Concessions, LLC, No. 10-cv3895, 2011 WL 780874, *1 (N.D. Ill. Feb. 28, 2011), nor is the
$100 he claims for “collection expenses.”

Vandenberg has failed

to show that the “collection expenses” include any expense other

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than his valuation of the time he spent preparing the motion.
As stated above, a pro se plaintiff cannot recover such
expenses.

Accordingly, the motion for service costs (doc. no.

9) is granted, to the extent that Hamilton must pay Vandenberg
$40.34.

The motion is denied as to any other request for costs.
Conclusion

The motion for service costs (doc. no. 9) is granted in
part and denied in part.

The motion is granted to the extent

that Hamilton shall pay Vandenberg $40.34 within fourteen days
of the date of this order.

The motion is denied in all other

respects.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
May 2, 2013
cc:

David Vandenberg, pro se
Judith Hamilton, pro se

LBM:nmd

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