IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 23, 2010
LORENZO SEGURA, PLAINTIFF,
T. FELKER, ET AL., DEFENDANTS.
On July 22, 2010, the court ordered defendant McGuire to pay $772.00 to the U.S. Marshal for personal service of process under Federal Rule of Civil Procedure 4(d)(2) because defendant McGuire failed to waive service. Defendant McGuire seeks relief from that order. Rule 4(d)(2) of the Federal Rules of Civil Procedure requires that the court tax costs of service of process on any defendant who fails to show good cause for failing to sign and return a timely waiver of service.
Counsel for defendant argues that the failure to waive service in this case was the product of excusable neglect because defendant is also named in a different case brought by plaintiff, CIV-S-08-2137, and counsel's office experienced "filing problems" as a result of thinking the two different cases were the same case. While counsel focuses on the relative closeness in time of the filing of the initial complaints in the two different cases, defendant was not notified of the cases until the court ordered the service of claims made in amended complaints, with service ordered on June 15, 2009 in case number CIV-S-08-2137, and on January 5, 2010 in this case. In this case, the returned Summons filed by the Marshal shows it was first mailed to defendant on January 28, 2010, and then personally served on defendant on June 18, 2010 after the waiver of service was not returned. The case number on the Summons and on the complaint served is clearly identified as the number of this case. The other case, CIV-S-08-2137, is described on the face sheet of the complaint as a "previous lawsuit," although identified by presiding judge and not case number. Moreover, counsel's characterization of certain of the court clerks' docket entries -- made in both cases well before service of any claims was ordered -- as reflecting "mistakes" is not accurate.
For the reasons set forth above, the court does not find good cause for defendant's failure to waive service.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's "request for relief from court's order to pay the United States Marshal's fees" is denied; and
2. Defendant shall pay the United States Marshal $772.00 within fourteen days.
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