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Ronald Davenport v. Ben Lee

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


March 16, 2011

RONALD DAVENPORT, PLAINTIFF,
v.
BEN LEE, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On November 2, 2010, the undersigned issued an order directing the United States Marshal to serve process on defendants Dunlap, Sahota, Lee, Reddy, Bal, and Torruella. Dckt. No. 11. The order directed the Marshal to first request a waiver of service of summons from defendants in accordance with the provisions of Rule 4(d) of the Federal Rules of Civil Procedure ("Rule").*fn1 Id. at 2. The order also directed the Marshal to personally serve a defendant if that defendant failed to return the waiver within 60 days from the date the request was mailed. Dckt. No. 11 at 2.

Pursuant to Rule 4(d)(2):

If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.

On March 15, 2011, a representative from the Marshals Service informed the undersigned's law clerk that the USM had not received waivers of service from defendants Lee, Reddy, Bal, and Torruella.*fn2 Therefore, in accordance with the court's November 2, 2010 order, the Marshal intended to proceed with personal service on these defendants. According to the docket, however, these defendants have answered plaintiff's complaint, and personal service appears unnecessary. See Dckt. Nos. 16, 21. If defendants intended to waive service by filing an answer, they have not so informed the Marshal, who is under no obligation to review the docket before proceeding with personal service as directed by the court.

If a defendant fails to sign and return a waiver to the Marshal, that defendant may be required to bear the cost of such service. Fed. R. Civ. P. 4(d)(2). In order to avoid any unnecessary expense of personal service; the court will direct the Marshal to not proceed with personal service.

Accordingly, it is hereby ORDERED that:

1. The U.S. Marshal shall not proceed with personal service on defendants Lee, Reddy, Bal, and Torruella;

2. Defendants Lee, Reddy, Bal, and Torruella shall show cause, within 14 days, why they should not be sanctioned for failing to timely return any waivers of service; and

3. The Clerk of the Court is directed to serve a copy of this order on the U.S. Marshal.


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