UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 22, 2010
IVAN RAY CARTER, JR., PLAINTIFF,
A. FERNANDEZ, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING REQUEST BY UNITED STATES MARSHAL FOR REIMBURSEMENT OF COSTS BY DEFENDANT FERNANDEZ
(Docs. 42, 45)
Plaintiff Ivan Ray Carter, Jr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on December 1, 2008. On April 23, 2009, the Court issued an order finding service of the complaint appropriate and forwarding service documents to Plaintiff for completion and return. On May 6, 2009, the Court directed the United States Marshal to serve the complaint on Defendants A. Fernandez, R. Reynaga, H. Carrillo, Darren Jones, and L. Ceasear. On June 25, 2009, the summons was returned unexecuted as to Defendant Fernandez. On June 29, 2009, the Court ordered Plaintiff to furnish further information for initiation of service of process. On July 7, 2009, Plaintiff filed his response. On July 20, 2009, the Court directed the United States Marshal to re-attempt service of process on Defendant Fernandez. On February 22, 2010, the United States Marshal filed a request for an order requiring Defendant Fernandez to reimburse the costs incurred by the Marshal for personal service, pursuant to 4(d)(2) of the Federal Rules of Civil Procedure. (Doc. 42.) On March 19, 2010, Defendant Fernandez filed a response to the Marshal's request. (Doc. 45.)
Rule 4(d)(2) of the Federal Rules of Civil Procedure provides in part: An individual, corporation, or association that is subject to service under subdivision (e), (f), or (h) and that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons...
If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.
The Marshal requests the Court to impose costs on Defendant for his failure to avoid unnecessary costs. On February 22, 2010, the Marshal filed a USM-285 form indicating that a Waiver of Service form was mailed to Defendant on August 12, 2009. (Doc. 43.) Personal service was effected on February 4, 2010 with costs of $250.25. (Doc. 43.)
Defendant argues that the Marshal's request for costs is unwarranted because there was no need for the Marshal to effect personal service upon Defendant. Defendant Fernandez appeared in this action on October 13, 2009, by filing an answer to the complaint. (Doc. 30.) Defendant argues that he waived service by filing a responsive pleading on October 13, 2009, and there was no need for the Marshal to effect personal service upon him on February 4, 2010.
The Court agrees that the Marshal's request for costs is unwarranted. The Court's order of July 20, 2009, which directed the Marshal to serve process in this action, provided that, "In the even that defendants make an appearance in this action by filing an answer, dispositive motion, or other pleading, the U.S. Marshal Service need not personally serve those defendants." (Doc. 17, Order 3, ¶ 6.) Because Defendant Fernandez filed an answer, the Marshal did not need to personally serve him, and the request for reimbursement of costs is unwarranted.*fn1 Therefore, the Court shall deny the Marshal's request for reimbursement.
Based on the foregoing, it is HEREBY ORDERED that:
1. The Marshal's request for reimbursement for costs of personal service on Defendant A. Fernandez, filed February 22, 2010, is DENIED; and
2. The Clerk is directed to serve a copy of this order on the United States Marshal, Sacramento, California.
IT IS SO ORDERED.