UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 10, 2012
LARRY WITEK, ET AL., DEFENDANTS
The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER PROVIDING DEFENDANT DENNY WITH THE OPPORTUNITY TO SHOW GOOD CAUSE FOR FAILING TO WAIVE SERVICE
On October 4, 2011, the Court ordered the United States Marshal to serve process upon the defendants in this case. The Marshal was directed to attempt to secure a waiver of service before attempting personal service on the defendants. If a waiver of service was not returned by a defendant within sixty days, the Marshal was directed to effect personal service on the defendant in accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c), without prepayment of costs, and to file the return of service with evidence of any attempt to secure a waiver of service and with evidence of all costs subsequently incurred in effecting personal service. On April 24, 2012, the United States Marshal filed a return of service with a USM-285 form showing charges of $299.56 for effecting personal service on Defendant Denny. The form shows that a waiver of service form was mailed to Defendant Denny on October 6, 2011, and that no response was received.
Rule 4 provides that "[a]n 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." Fed. R. Civ. P. 4(d)(1). "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 expenses later incurred in making service . . . ." Fed. R. Civ. P. 4(d)(2)(A).
It appears that Defendant Denny was given the opportunity required by Rule 4(d)(1) to waive service, but failed to comply with the request. The Court shall provide Defendant with the opportunity to show good cause for failing to waive service. If Defendant either fails to respond to this order or responds but fails to show good cause, the costs incurred in effecting service shall be imposed on Defendant.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Denny may, within thirty (30) days from the date of this order, show good cause for failing to waive service; and
2. If Defendant either fails to respond to this order or responds but fails to show good cause, the Court shall impose upon Defendant Denny the costs incurred in effecting service.
IT IS SO ORDERED.
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