United States District Court, N.D. California, San Jose Division
August 25, 2005.
JUDY DAVILLA, Plaintiff,
THINLINE COLLECTIONS, LLC; KENNETH W. BURTON; and BURTON LAW OFFICE Defendants.
The opinion of the court was delivered by: RONALD WHYTE, District Judge
ORDER GRANTING MOTION FOR COSTS OF SERVICE AND ATTORNEY'S FEES
Plaintiff Judy Davilla moves for the costs of service of
process on defendants Thinline Collections, Kenneth Burton, and
Burton Law Office, and the costs of filing this motion to recover
costs, including attorney's fees, pursuant to Federal Rule of
Civil Procedure 4(d)(2) and (5). Defendants have filed no
opposition. The court considers this matter appropriate for
decision on the papers and vacates the hearing presently
scheduled for September 2, 2005. For the following reasons, the
court grants plaintiff's motion.
On March 24, 2005, plaintiff filed a complaint against
defendants, alleging that defendants violated the federal Fair
Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., by
attempting to collect and collecting amounts not authorized by
contract or by law, and sending false, deceptive, or misleading
letters containing false threats of suit in an attempt to collect
a debt. On March 31, 2005, plaintiff sent a notice of request of waiver
of summons, two copies of a waiver of service of summons, a
self-addressed stamped envelope, and a copy of the complaint to
defendants. On April 6, counsel for defendants, Kenneth Burton
(also personally named as a defendant in plaintiff's complaint),
contacted plaintiff's counsel, Ronald Wilcox, to discuss the
merits of the complaint. On April 13, plaintiff's counsel faxed a
letter to defendants regarding the failure to return the waiver
of summons. On May 30, Mr. Burton stated that defendants would
not waive service. Plaintiff then employed a private process
server, who personally served Burton and the Burton Law Office on
June 8, 2005.*fn1
Plaintiff now moves for attorneys' fees in the amount of
$900.00 and private service costs totaling $170.28 incurred as a
result of defendants' failure to return the waiver of service of
Federal Rule of Civil Procedure 4(d) permits a plaintiff to
avoid the costs of personal service by providing a defendant with
written notice, through first-class mail or other reliable means,
of the commencement of an action and with a request that
defendant waive service of summons. Once notified, a defendant
"has a duty to avoid unnecessary costs of serving the summons."
Fed.R.Civ.P. 4(d)(2). The plaintiff "shall allow the defendant
a reasonable time to return the waiver, which shall be at least
30 days from the date on which the request is sent." Fed.R. Civ.
P. 4(d)(2)(F). If the defendant does not comply with the request,
"the court shall impose costs subsequently incurred in effecting
service on the defendant unless good cause for the failure be
shown." Fed.R.Civ.P. 4(d)(2)(G). Rule 4(d)(5) provides that
the costs to be imposed on a defendant under paragraph (2) for
failure to comply with a request to waive service of a summons
shall include the costs subsequently incurred in effecting
service under subdivision (e), (f), or (h) together with the
costs including a reasonable attorney's fee, of any motion
required to collect the costs of service. Fed.R.Civ.P.
The record clearly shows that defendants failed to comply with
the provisions set forth in the rule. In addition, plaintiff has
met and conferred with counsel for defendants, followed the
appropriate procedures, and set forth the costs incurred as a
result of defendants' lack of compliance. Counsel for plaintiff, Ronald Wilcox, attests that he spent 3 hours in
preparing the motion for reimbursement of costs, which, at his
hourly rate of $300.00, totals $900.00. See Declaration of
Ronald Wilcox ("Wilcox Decl.") ¶ 9. Wilcox also attests that the
costs of for private process service was $170.28. Id. ¶ 11.
Because defendants failed to comply with plaintiff's request
for waiver of service of summons, and because they have not shown
good cause for the failure, the court finds that plaintiff is
entitled to reimbursement of costs and an award of reasonable
attorney's fees in preparing this motion. See, e.g., Kennemer v.
Jefferson Autoplex, L.L.C., 2004 U.S. Dist. LEXIS 10623 at 5-6
(D. La. 2004) (awarding costs and attorneys' fees to plaintiff
pursuant to Rule 4(d)(2) and (5) for defendant's failure to
return waiver of service of summons); Graves v. Church of the
Lord Jesus Christ of the Apostalic Faith, Inc., 2003 U.S. Dist.
LEXIS 25495, 2003 WL 21659168 at 1 (E.D. Pa. 2003) (same);
Ferguson v. Interpublic Group., Inc., 1998 U.S. Dist. LEXIS
3992 at 1-2 (S.D.N.Y. 1998) (same).
For the foregoing reasons, the court GRANTS plaintiff's motion.
The Court awards costs in the amount of $170.28 and attorney's
fees in the amount of $900.00.
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