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Ogundimo v. Steadfast Property & Development

September 27, 2010

CARLOTTA OGUNDIMO, PLAINTIFF,
v.
STEADFAST PROPERTY & DEVELOPMENT, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING MOTION FOR COSTS OF SERVICE (Docket No. 54)

INTRODUCTION

Plaintiff Carlotta Ogundimo ("Plaintiff") filed this suit alleging violations of the Fair Housing Act of 1988. According to the complaint, in February 6, 2007, an overflowing toilet flooded the entire premises in which Plaintiff and her family resided. "Steadfast Property & Development"*fn1 ("Steadfast") was listed as the sole defendant in the caption of the complaint, but other defendants, including Gracie Preciado and Pacific West Management, were named in the body of the complaint. Defendants Steadfast (the owners of the apartment complex in which Plaintiff resides), Pacific West Management (management agent of apartment complex in which Plaintiff resides), and Gracie Preciado (resident property manager) allegedly negligently and untimely responded and chose to ignore the directions of "professional clean-up," resulting in a serious and advanced state of mold which led to unhealthy living conditions and exacerbated the health of those living in Plaintiff's residence, including Plaintiff.

Presently pending before the Court is the U.S. Marshal's Motion for Costs of Service.

PROCEDURAL BACKGROUND

On February 5, 2009, Plaintiff initiated this suit by filing a complaint. On March 12, 2009, the Court screened Plaintiff's complaint. (Doc. 8.) The Court determined that Plaintiff had stated a claim and that service on defendants Steadfast, Pacific West Management, and Gracie Preciado was appropriate. (Id.) The Court ordered Plaintiff to complete the service documents, including the USM-285 Forms, and to return them to the U.S. Marshal for service of the summons and complaint.

From what can be gleaned from the docket entries, the U.S. Marshal mailed a copy of the complaint, summons, and a request for waiver of service to Defendants Steadfast, Pacific West Management, and Gracie Preciado on May 20, 2009. (See Docs. 29, 54.) On May 29, 2009, Defendants Steadfast and Pacific West Management each filed a Waiver of Service of Summons agreeing that, to save the cost of service of a summons and an additional copy of the complaint, they did not need to be served with judicial process in the manner provided by Rule 4. (Doc. 29.) On June 19, 2009, "Steadfast Park West, L.P.," answered the complaint, noting that it had been erroneously sued as "Steadfast Property & Development." (Doc. 31.)

On October 19, 2010, the U.S. Marshal filed the instant Motion for Costs of Service. Attached to the U.S. Marshal's motion is a copy of an executed summons as to Defendant Gracie Preciado ("Preciado"). The service information on the USM-285 Form lists "Steadfast Properties & Development, Inc." as the entity to be served, but it is crossed out with a line striking it. The name "Gracie Preciado" appears next to the crossed out name of "Steadfast Properties & Development, Inc." All other service information remains the same, including the address for service of process, which is 4343 Von Karman Ave., Suite 300, Newport Beach, CA 92660. (Doc. 54.) There is a section in the USM-285 Form for "Special Instructions or Other Information That Will Assist in Expediting Service," where Plaintiff provided an alternative address to serve Preciado:

Park West Nova Park Apartments 2407 W. Alamos, Management Office Fresno, California, 93705 Apparently, on October 6, 2009, the U.S. Marshal undertook personal service of the summons and complaint upon Preciado at the Newport Beach address. (Doc. 54.) According to the executed summons, Deborah Park, Executive Assistant (apparently of Steadfast Park West, L.P.*fn2 accepted personal service. The U.S. Marshal's Motion for Costs of Service appears to be directed at Preciado, a defendant who has not yet appeared in this action.

According to the executed summons, a copy of the complaint, the summons, and ostensibly a waiver of personal service were mailed to Preciado on April 20, 2009, to 4343 Von Karman Ave., Suite 300, Newport Beach, California. No response to the request for waiver was filed with the Court. An attempt at personal service was then made on October 6, 2009. According to the executed summons filed by the U.S. Marshal (Doc. 54), the individual served was Deborah Park, not Preciado. It does not appear that any attempt was made to serve Preciado at the alternative address provided.

DISCUSSION

A. Legal Standard

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. The plaintiff shall "give the defendant a reasonable time of at least 30 days after the [waiver] request was sent -- or at least 60 days if sent to the defendant outside any judicial district of the United States -- to return the waiver." Fed. R. Civ. P. 4(d)(1)(F). If the defendant does not agree to waive personal service, the court must impose reasonable expenses associated with the personal service. Fed. R. Civ. P. 4(d)(2)(A)-(B).

If the requested waiver is refused, personal service of the summons and complaint must be effected. Pursuant to Rule 4(e), an individual may be served in a ...


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