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Charles G. Reece v. Amrick Basi


December 3, 2012


The opinion of the court was delivered by: Allison Claire United States Magistrate Judge


Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action seeking relief pursuant to 42 U.S.C. § 1983.

By order filed on March 21, 2012, the court directed the United States Marshal to serve process upon, inter alia, defendant Amrick Basi in this case. The Marshal was directed to attempt to secure a waiver of service before attempting personal service on defendant. If a waiver of service was not returned 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 October 31, 2012, the United States Marshal filed a return of service with a USM-285 form showing total charges of $249.00 for effecting personal service on defendant Amrick Basi. The form shows that a waiver of service form was mailed to the defendant on March 23, 2012; returned from the prison facility on April 3, 2012; identifying defendant Basi as a contract employee no longer employed at CSP-Solano,*fn1 forwarded on April 6, 2012, from which no response was received. Thereafter, on June 25, 2012, the marshal mailed the waiver form to the defendant's last known address "per registry," again with no result, after which the form was evidently once more forwarded on June 27, 2012. When the waiver was not returned as of October 4, 2012, the marshal assigned personal service which service was executed on October 9, 2012. The individual served on defendant Basi's behalf is identified as his mother, Mrs. Basi.

Rule 4(d) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

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.

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:

(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)(2).

The court finds that defendant Amrick Basi was given the opportunity required by Rule 4(d) to waive service and has failed to comply with the request. Accordingly, defendant Amrick Basi will be ordered to pay service expenses. However, the amount claimed on the USM-285 form will be reduced to reflect that service in this case was performed simultaneously with service in an urelated case, 2:11-cv-0369 GEB AC P. While 28 C.F.R. § 0.114 provides that the service fee applies to each item served, mileage will be apportioned between the two cases in which Amrick Basi's mother was served on October 9, 2012. The $84.00 mileage charge claimed on the USM-285 form in this case will be reduced to $42.00, reducing the total charge to $207.00.

Accordingly, IT IS HEREBY ORDERED that:

1. Within fourteen days from the date of this order defendant Amrick Basi shall pay to the United States Marshal the sum of $207.00, 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 fourteen-day period.

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

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