IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 11, 2012
CD ALSTON, PLAINTIFF,
COUNTY OF SACRAMENTO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
This proceeding was referred to the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). On February 23, 2012, defendants filed a motion to dismiss plaintiff's first amended complaint pursuant to Fed. R. Civ. P. 12(b)(6), noticed for hearing on April 19, 2012 before the undersigned. (Dkt. Nos. 16, 17.) On March 19, 2012, plaintiff filed an opposition to the motion (dkt. no. 22), and on April 6, 2012, defendants filed a reply brief (dkt. no. 23).
Having reviewed the record, the court has determined that oral argument would not be of material assistance in determining the pending motion. Therefore, the court will not entertain oral argument, and will determine the motion on the record, including the briefing in support of and in opposition to the pending motion. See E.D. Cal. L.R. 230(g).
Additionally, the court notes that, on March 13, 2012, the U.S. Marshal filed requests for reimbursement of costs for effecting service on defendants Sacramento County and Sacramento County Sheriff Department. (Dkt. Nos. 20, 21.) On December 13, 2011, the court ordered the United States Marshal to serve process on all defendants within ninety (90) days. (Dkt. No. 9.) The United States Marshal's waiver of service form notifies a defendant that failure to waive service of summons would result in a requirement that defendant bear costs of such service unless it shows good cause for failure to return the waiver. See Fed. R. Civ. P. 4(d)(1); 28 U.S.C. § 566(c).
On March 13, 2012, the United States Marshal filed a return of service with a USM-285 form showing total charges of $56.02 for effecting personal service on defendant Sacramento County Sheriff Department. (Dkt. No. 18.) The form shows that a waiver of service form was mailed to defendant Sacramento County Sheriff Department on December 27, 2011, and that no response was received. (Id.) On March 13, 2012, the United States Marshal also filed a return of service with a USM-285 form showing total charges of $56.02 for effecting personal service on defendant Sacramento County. (Dkt. No. 19.) The form shows that a waiver of service was mailed to defendant Sacramento County on December 27, 2011, and that no response was received. (Id.)
Rule 4(d) of the Federal Rules of Civil Procedure provides, in pertinent part, that: An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. . . .
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.
Fed. R. Civ. P. 4(d)(1), (2)(A), (B).
However, the court's docket reveals that defendants Sacramento County and Sacramento County Sheriff Department in fact executed waivers of service of summons on January 23, 2012 and that the waivers were filed with the court that same day. (See Dkt. No. 14 at 1-2.) Therefore, the U.S. Marshal's request for reimbursement of costs for its subsequent personal service on these defendants will be denied.
In accordance with the above, IT IS HEREBY ORDERED that:
1. The April 19, 2012 hearing on defendants' motion to dismiss is VACATED.
2. Defendants' motion to dismiss (dkt. no. 16) is submitted on the record without oral argument, with a written order to follow.
3. The U.S. Marshal's requests for reimbursement of costs for effecting service of process on defendants Sacramento County and Sacramento County Sheriff Department (dkt. nos. 20, 21) are DENIED.
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