Kelman v. Flores et al

Filing 17

ORDER granting Kelman's motion 5 to recover costs of svc & ordering defts to reimburse Kelman in amt of $179.38 costs of effectuating formal svc of summons & $500 in atty's fees pursuant to FRCP 4(d)(2). (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 8/16/16. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RYAN KELMAN,
Plaintiff
v.
JOSE FLORES, et al.,
Defendant

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CIVIL ACTION NO. 4:16-CV-657
(Chief Judge Conner)

ORDER
AND NOW, this 16th day of August, 2016, upon consideration of the motion
(Doc. 5) to recover costs of service by plaintiff Ryan Kelman (“Kelman”) filed July 1,
2016, wherein Kelman requests that the court impose costs and fees on defendants
for failure to sign and return service waiver forms, and further upon consideration
of defendants’ answer (Doc. 15) to the court’s rule to show cause (Doc. 14) why the
court should not impose costs and fees pursuant to Federal Rule of Civil Procedure
4(d)(2), and it appearing that: (i) Kelman’s counsel sent a notice of lawsuit and
request to waive service to each defendant on April 21, 2016, requesting return of
the waivers within thirty days and apprising defendants, in accordance with Rule
4, that “[a] defendant . . . who fails to return a signed waiver of service . . . will be
required to pay the expenses of service, unless the defendant shows good cause for
the failure,” (Doc. 5, Ex. A at 2, 4, 6); (ii) defendants accepted service of said notices
on April 26, 2016, (see Doc. 5 ¶ 3; Doc. 15 ¶ 2); (iii) counsel for both parties spoke via
telephone on June 3, 2016, during which conversation defense counsel advised that,
as of that date, he had not received authorization to waive service on defendants’
behalf, (Doc. 15 ¶ 10; see Doc. 5 ¶ 5); (iv) defendants failed to return the waivers

within the thirty-day time period requested by Kelman’s counsel, (Doc. 5 ¶ 6); and
(v) Kelman’s counsel effected service on June 23, 2016, incurring costs of $179.38,
(id. ¶¶ 6, 10; Docs. 7-9), and it further appearing that a defendant subject to service
under Federal Rule of Civil Procedure 4(e), governing service on individuals, and
Rule 4(h), pertaining to service on corporations, “has a duty to avoid unnecessary
expenses of serving the summons,” FED. R. CIV. P. 4(e), (f), and that, pursuant to
Rule 4(d)(2), when a “defendant . . . fails, without good cause, to sign and return a
waiver requested by a plaintiff,” the court must impose upon the defendant “the
expenses later incurred in making service” as well as “the reasonable expenses,
including attorney’s fees, of any motion required to collect those service expenses,”
FED. R. CIV. P. 4(d)(2), and further that findings of “sufficient cause should be rare,”
and include, for example, exceptional instances in which “the defendant did not
receive the request or was insufficiently literate in English to understand it,” FED.
R. CIV. P. 4, advisory committee notes (1993), and the court concluding that a delay
in communication between defendants and their counsel does not constitute good
cause to excuse defendants’ failure to return the service waivers, it is hereby
ORDERED that:
1.

Kelman’s motion (Doc. 5) to recover costs of service is GRANTED.

2.

Defendants are ordered to reimburse Kelman in the amount of
$179.38, the costs of effectuating formal service of the summons, and
$500.00 in attorney’s fees pursuant to Federal Rule of Civil Procedure
4(d)(2).
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania