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Hightower v. Tilton

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 27, 2010

THOMAS A. HIGHTOWER, PLAINTIFF,
v.
JAMES TILTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Marsha J. Pechman U.S. District Judge

ORDER

Rescinding Taxation of Costs

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action seeking relief pursuant to 42 U.S.C. § 1983.

Plaintiff filed his complaint on May 22, 2008, alleging First and Eighth Amendment violations by Defendants Tilton, Subia, Lewis, Grannis, Mwangi, Griffin, Gutierrez, Campbell, Fox, Reaves, Reyes, Bunnell, Rodriquez and Montanez. After screening Plaintiff's complaint, the Court ordered service on these defendants on October 2, 2009 (Dkt. No. 13).

On January 15, 2010, Defendants Reaves, Reyes, Grannis and Tilton moved to dismiss Plaintiff's complaint (Dkt. No. 21; that motion is still pending). Defendants Montanez, Bunnell, Campbell, Fox, Gutierrez, Griffen, Rodriquez, Lewis and Mwangi answered Plaintiff's complaint. Dkt. No. 22. Nevertheless, the U.S. Marshal served the above-listed defendants on February 2, 3 and 16 (Dkt. Nos. 25, 27) and sought reimbursement from Defendants for personal service. The Court ordered the personal service costs taxed to Defendants on April 1, 2010. Dkt. Nos. 35, 36, 38.

The Court is aware that Defendants did not file waivers of service prior to appearing by means of their respective motion and answers to the complaint. The Court is also aware that personal service on these defendants was not effected until more than 120 days after the complaint was filed and screened, which (under FRCP 4) renders the service untimely and the action subject to dismissal. By appearing in the manner in which they did, the defendants waived any defect in service.*fn1 See Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986)("A general appearance or responsive pleading by a defendant that fails to dispute personal jurisdiction will waive any defect in service or personal jurisdiction.").

These Defendants, had they chosen to exercise their right to have the matter dismissed without prejudice against them (FRCP 4(m)), could have delayed the progress of this case further and resulted in the expenditure of additional funds and time to effect proper service. The Court finds that they should not be penalized for choosing to appear by motion or answer rather than a formal waiver of service, and therefore

IT IS ORDERED that the taxation of costs orders entered against these Defendants (Lewis, Grannis, Reyes, Tilton, Subia, Mwangi, Griffin, Gutierrez, Campbell, Fox, Reaves, Bunnell, Rodriguez, and Montanez; Dkt. Nos. 35, 36 and 38) are RESCINDED and that they will not be ordered to pay the U.S. Marshal as formerly directed.


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