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Azhar Lal v. T. Felker

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


November 15, 2011

AZHAR LAL, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983.

On June 17, 2011, the court ordered the United States Marshal to serve process upon defendant Flores. The Marshal was directed to attempt to secure a waiver of service before personally serving the defendant. However, if a waiver of service was not returned within 60 days, the Marshal was directed to (1) personally serve defendant without prepayment of costs under Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c); and (2) file the return of service with evidence of attempts to secure a waiver and costs subsequently incurred in effecting personal service.

On November 9, 2011, the United States Marshal filed a return of service with a USM-285 form showing total charges of $65.70 for personally serving defendant Flores. The form shows the Marshal mailed defendant Flores a waiver of service form on June 22, 2011, but he did not respond.

Rule 4 of the Federal Rules of Civil Procedure provides, in pertinent part: 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...the expense later incurred in making service; and...the reasonable expenses...of any motion required to collect those service expenses.

Fed. R. Civ. P. 4(d)(2).

The court finds defendant Flores was given the opportunity required by Rule 4(d)(2) to waive service but failed to do so.

Accordingly, the court hereby orders that:

1. Within 14 days from the date of service of this order, defendant Flores shall pay to the United States Marshal the sum of $65.70, unless within that time defendant files a written statement showing good cause for his failure to waive service. The court does not intend to extend this 14-day period.

2. The Clerk shall serve a copy of this order on the U.S. Marshal.

20111115

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