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Sotelo v. Birring

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 4, 2012

ROBERTO A. SOTELO,
PLAINTIFF,
v.
T. BIRRING, ET AL.,
DEFENDANTS.

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

ORDER DIRECTING SERVICE BY THE UNITED STATES MARSHALS SERVICE WITHOUT PREPAYMENT OF COSTS (Docs. 85 and 86)

Pursuant to 28 U.S.C. § 1915(d), Federal Rule of Civil Procedure 4(c)(3), and California Civil Procedure Code § 410.10, it is HEREBY ORDERED that:

1. The Clerk of the Court is directed to forward the following documents to the United States Marshals Service:

(1) One completed and issued summons;

(2) One completed USM-285 form;

(3) One copy of the second amended complaint filed on March 22, 2012, plus an extra copy for the Marshals Service; and

(4) One copy of this order, plus an extra copy for the Marshals Service.

2. Within ten (10) days from the date of this order, the Marshals Service is directed to notify the following defendant of the commencement of this action and to request a waiver of service in accordance with the provisions of Fed. R. Civ. P. 4(d) and 28 U.S.C. § 566(c):

3. The Marshals Service shall file the returned waiver of service, or the request for waiver of service if returned as undelivered, as soon as it is received.

4. If the waiver of service is not returned by the defendant within thirty (30) days of the date of mailing the request for waiver, the Marshals Service shall:

a. Personally serve process and a copy of this order upon the defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).

b. Within ten days after personal service is effected, the Marshals Service shall file the return of service for the defendant, along with evidence of any attempts to secure a waiver of service of process and of the costs subsequently incurred in effecting service on said defendant. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the Marshals Service for photocopying additional copies of the summons and complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against the personally served defendant in accordance with the provisions of Fed. R. Civ. P. 4(d)(2).

5. If defendant waives service, he is required to return the signed waiver to the Marshals Service. The filing of an answer or a responsive motion does not relieve defendant of this requirement, and the failure to return the signed waiver may subject defendant to an order to pay the costs of service pursuant to Fed. R. Civ. P. 4(d)(2).

6. In the event that defendant either waives service or is personally served, defendant is required to reply to the complaint. 42 U.S.C. § 1997e(g)(2).

IT IS SO ORDERED.

20120404

© 1992-2012 VersusLaw Inc.



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