United States of America v. Jones
ORDER granting 35 Motion for Attorney Fees. IT IS HEREBY ORDERED that plaintiff's motion for service expenses and attorney's fees is granted in the amount of $1,015, consisting of $115 in expenses and $900 in attorneys fees, and defendant shall pay this sum to plaintiff within 60 days of this Memorandum and Order. Ordered by Judge Joseph F. Bianco on 12/9/2013. (Lamb, Conor)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
No 11-cv-2869 (JFB)
UNITED STATES OF AMERICA,
ANDREW P. JONES,
MEMORANDUM AND ORDER
December 9, 2013
JOSEPH F. BIANCO, District Judge:
Plaintiff United States of America
(“plaintiff”) brought this action against
Andrew P. Jones (“defendant”) seeking to
recover amounts due from defendant’s
allegedly unpaid student loan. Plaintiff now
moves under Rule 4(d) of the Federal Rules
of Civil Procedure to collect the expenses
and attorney’s fees associated with effecting
service of process on defendant and making
this motion. For the reasons set forth below,
the motion is granted, and the Court awards
$115 in expenses to plaintiff incurred in
making service, and $900 in attorney’s fees
expended in connection with making the
motion under Rule 4(d)(2).
On June 15, 2011, plaintiff initiated this
action by filing a Summons and Complaint.
On June 20, 2011, plaintiff mailed a copy of
the complaint, a Notice of Lawsuit, and two
copies of a “Waiver of Service” form to
defendant’s home address. (Ex. B to Pl.
Mot.) By letter dated June 28, 2011,
defendant acknowledged receipt of the
documents and expressed his refusal to
waive service. (Ex. C to Pl. Mot.)
Defendant is an attorney and his response
included his business letterhead. (Id.)
On September 6, 2011, plaintiff filed an
Affidavit of Service describing its personal
service of the complaint on defendant.
Alleged errors in that affidavit and the
service itself became the subject of a motion
to dismiss by defendant. The motion was
resolved when the Court found good cause
for any failure to serve and granted plaintiff
an extension of time to effect service.
Plaintiff then attempted to serve
defendant—at both his home and his law
office—at least ten different times in
January 2013. (Exs. D, E, F to Pl. Mot.)
Service was frustrated by a closed gate and,
on two occasions, defendant’s refusal to
come to the door. (Id.) Plaintiff finally
effected service by affixing the summons
and complaint to the doors of defendant’s
home and business, and mailing the same to
him. (Exs. E, F to Pl. Mot.) So-called “nail
and mail” service is authorized by the New
York Civil Practice Law and Rules when
personal service cannot be made with due
diligence. C.P.L.R. § 308(4).1
(D. Me. 2010), Rule 4(d) requires courts to
impose the cost of service on defendants
who refuse to waive it without good cause.
Fed. R. Civ. P. 4(d)(2).
Defendant does not argue that good
cause exists for his refusal to waive service.
Instead, he contests whether plaintiff was
diligent in attempting to serve him at his
business address, and argues that Rule 4(d)
is unconstitutional. The former argument
fails because plaintiffs have offered two
affidavits by professional process servers
describing their multiple attempts to serve
defendant at his business address during
business hours. (Exs. E, G to Pl. Mot.) “In
New York, a process server’s affidavit of
service establishes a prima facie case of the
account of the method of service.” Old
Republic Ins. Co. v. Pac. Fin. Servs. of Am.,
Inc., 301 F.3d 54, 57 (2d Cir. 2002).
The present motion seeks to recover
expenses for plaintiff’s attempts to serve
defendant, as well as the attorney’s fees
incurred in making this motion. Federal
Rule of Civil Procedure 4(d) provides that a
court “must” award this relief if there was
no good cause for the refusal to waive
service. Fed. R. Civ. P. 4(d)(2). Defendant
has not identified any cause for his refusal,
but instead questions plaintiff’s diligence
before resorting to “nail and mail.” He also
argues that Rule 4(d) is an unconstitutional
deprivation of due process under the Fifth
and Fourteenth Amendments.
The history of attempted service
contained in the affidavits is convincing, and
there is no evidence to the contrary. Id. at
58 (citations omitted); see also Allstate Ins.
Co. v. Rozenberg, 771 F. Supp. 2d. 254,
261-62 (E.D.N.Y. 2011) (finding, on the
basis of an affidavit, due diligence after four
attempts at personal service). Defendant has
not made any sworn denial, and even if the
Court liberally construed his affirmation in
opposition to this motion as one, it lacks the
requisite specificity to rebut the detailed
evidence of plaintiff’s diligence. In short,
defendant has failed to provide any
evidentiary basis to challenge plaintiff’s
manner of service, nor has he demonstrated
good cause for his failure to waive.
Federal Rule of Civil Procedure 4(d)(1)
imposes a duty on defendants “to avoid
unnecessary expenses of serving the
summons.” Defendants often fulfill that
duty by waiving formal service and
accepting copies of the complaint and
summons in the mail. Plaintiffs generally
include waiver forms with the complaint and
summons, which defendants then execute
and return. Although it is true that “the law
does not require those who receive a request
for waiver . . . to sign the waiver,” Manuel v.
City of Bangor, 691 F. Supp. 2d 212, 230
Turning to defendant’s constitutional
argument, courts have generally not found
good cause based on a belief in the injustice
of the claim against him. See, e.g., Morales
v. SI Diamond Tech., Inc., No. 98-CV-8309,
1999 WL 144469, at *2 (S.D.N.Y. Mar. 17,
Defendant urges the Court not to recognize that
service was proper because plaintiff did not request
such relief in its Notice of Motion. However, the
Notice of Motion’s focus on service expenses and
attorney’s fees necessarily alerted defendant that
service was at issue, and defendant received
plaintiff’s Memorandum, which argued that service
was proper, on the same day as the Notice of Motion.
impose on defendant “the expenses later
incurred in making service” and “the
reasonable expenses, including attorney’s
fees,” of the motion itself. Fed. R. Civ. P.
No other expenses or
attorney’s fees are recoverable, and there is
no requirement that the award wait until the
end of the litigation. See Double S Truck
Line, Inc. v. Frozen Food Exp., 171 F.R.D.
251, 253 (D. Minn. 1997).
1999) (quoting the Advisory Committee
Notes to the 1993 Amendments enacting
Rule 4(d)); see also Bozell Grp., Inc. v.
Carpet Co-op of Am. Assoc., Inc., No. 00CV-1248 (RWS), 2000 WL 1523282, at *4
n.1 (S.D.N.Y. Oct. 11, 2000) (“Although not
argued here, it should be noted that neither
of Carpet One’s initial defenses – that the
lawsuit lacked merit and that the court did
not have jurisdiction – constitutes ‘good
cause’ excusing the failure to return the
waiver of service forms under Rule 4.”).
The claims of injustice in those cases
referred to the underlying lawsuits, but the
same principle applies where a defendant
attacks the waiver rule itself.
Plaintiff has proven that it spent $180.00
to serve defendant three times: once each by
“nail and mail” at his home and office, and
once nearly three months later in person.
The first two instances, which cost a
combined $115.00, are reasonable because
of defendant’s evasion and plaintiff’s need
to show due diligence before resorting to
“nail and mail.” The final instance was
superfluous and the Court will not require
defendant to pay the requested $65.00 for it.
Although his argument is couched in
constitutional terms, defendant cites no
support for what he seeks: a right to costfree, formal service as a requirement of due
On the contrary, “[t]he
fundamental requirement of due process is
the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’”
Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (quotation omitted).
facilitates the opportunity to be heard by
lowering its cost—the express purpose is “to
defendant’s conduct detracts from it. Accord
Knight-McConnell v. Cummins, No. 3-CV5035, 2004 WL 1713824, at *4 (S.D.N.Y.
July 29, 2004) (acknowledging that the rule
is a “useful” measure for “furtive”
defendants). In short, Rule 4(d) does not
violate due process in any way and
defendant’s argument is without merit. This
is not one of the “rare” circumstances where
a valid good-cause defense justifies the
refusal to waive service. Estrella v. P.R.
Painting Corp., No. CV 06-0717, 2006 WL
3359485, at *2 (E.D.N.Y. Nov. 20, 2006).
Plaintiff also seeks $3,893.75 in
attorney’s fees for making this motion. That
figure is based on nearly ten hours2 of
attorney work at a rate of $375.00 per hour,
except for one short period of clerical work
at $250.00 per hour. However, the Court
believes that the amount of fees sought is
unreasonable under the circumstances.
First, with respect to the compensable
hours, it is well settled that “the district
court examines the particular hours
expended by counsel with a view to the
value of the work product of the specific
expenditures to the client’s case.” Luciano
One line item notes the expense of serving and
filing this motion. Although there has been some
question concerning whether the rule authorizes
attorney’s fees related to serving the summons and
complaint, see, e.g., Stapo Indus., Inc., v. M/V Henry
Hudson Bridge, 190 F.R.D. 124, 126 (S.D.N.Y.
1999), the service and filing of the motion fits
squarely within the rule because it is necessary to
making the motion.
Having concluded that defendant did not
show good cause, the Court is required to
v. Olsten Corp., 109 F.3d 111, 116 (2d Cir.
Thus, “[i]f the district court
concludes that any expenditure of time was
unreasonable it should exclude these hours
from the lodestar calculation.” Id. Here,
plaintiff’s counsel spent approximately ten
hours conducting research for, and drafting,
the motion under Rule 4(d). Given the plain
language of the Rule and the straightforward
nature of the motion, the Court concludes
that it should exclude any work beyond
three hours because, based upon the record
before it, awarding fees for any expenditure
of time beyond that amount would be
unreasonable in this case.3
plaintiff’s counsel has not submitted any
information regarding skill level or
experience, the Court believes that $300 per
hour is the appropriate rate when it
considers all of the case specific factors.
Accordingly, the Court concludes that
attorney’s fees in the amount of $900—
consisting of 3 hours at a rate of $300 per
hour—is reasonable under the circumstances
of this case. Other courts have made similar
determinations in connection with motions
under Rule 4(d). See, e.g., Kennedy v.
Generator & Utility Service Corp., Civil
Action No. 12-2499, 2013 WL 3456974, at
*3 (E.D. La. July 9, 2013) (awarding a total
of $1,287 in expenses and fees); Hooda v.
W.C.A. Servs. Corp., No. 11-CV-00504
(Sr.), 2011 WL 6019932, at *6 (W.D.N.Y.
Nov. 4, 2011) (awarding a total of $1,432.42
in expenses and fees).
With respect to the appropriate hourly
rate, as this Court has noted, recent Eastern
District cases have indicated that the range
of appropriate billing rates in this District is
$200-$375 for partners. See Melnick v.
Press, No. 06-CV-6686 (JFB)(ARL), 2009
WL 2824586, at *9 (E.D.N.Y. Aug. 28,
2009). However, the district court should
also “assess case-specific considerations at
the outset, factoring them into its
determination of a reasonable hourly rate for
the attorneys’ work.” McDaniel v. Cnty. of
Schenectady, 595 F.3d 411, 420 (2d Cir.
2010); see also Arbor Hill Concerned
Citizens Neighborhood Assoc. v. Cnty. of
Albany & Albany Cnty. Bd., 522 F.3d 182,
190 (2d Cir. 2008) (“We think the better
course – and the one most consistent with
attorney’s fees jurisprudence – is for the
district court, in exercising its considerable
discretion, to bear in mind all of the casespecific variables that we and other courts
have identified as relevant to the
reasonableness of attorney’s fees in setting a
reasonable hourly rate.”) (emphasis in
original). Here, because the issues raised by
the motion were certainly not difficult, and
Plaintiff’s motion for service expenses
and attorney’s fees is granted in the amount
of $1,015—consisting of $115 in expenses
and $900 in attorney’s fees—and defendant
shall pay this sum to plaintiff within 60 days
of this Memorandum and Order.
JOSEPH F. BIANCO
United States District Judge
Dated: December 9, 2013
Central Islip, NY
Plaintiff is represented by Dolores M.
Iannarone, Mullen & Iannarone, P.C., 300
East Main Street, Suite 3, Smithtown, NY
11787. Defendant is pro se.
Similarly, to the extent that fees are sought for
reviewing the summons and complaint and answer,
such fees are not recoverable under Rule 4(d).
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