IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 3, 2012
ROYALTON MCCAMEY, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.
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 June 7, 2012, the court directed the United States Marshal to serve process upon, inter alia, defendants Drs. Lipson, Melet and Awatanee in this case. The Marshal was directed to attempt to secure a waiver of service before attempting personal service on defendants. If a waiver of service was not returned within sixty days, the Marshal was directed to effect personal service on the defendants 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 three returns of service with a USM-285 form showing a total charge of $152.00 for effecting personal service upon defendant Lipson and total charges of $147.52 each for effecting personal service on defendants Melet and Awatanee. The forms shows that a waiver of service form was mailed to each of these defendants on June 11, 2012. When the waivers were not returned, the marshal, on October 4, 2012, assigned personal service which service as to defendant Lipson was executed on October 18, 2012, and as to defendants Melet and Awatanee was executed on October 23, 2012. The individual served on behalf of defendant Lipson is identified as "Martha Moser - OA Personal"; the individual served on behalf of defendants Melet and Awatanee is identified as Curtis Gamble, litigation specialist.
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 defendants Lipson, Melet and Awatanee were given the opportunity required by Rule 4(d) to waive service and have failed to comply with the request. However, the amounts claimed on the USM-285 forms as to defendants Melet and Awatanee will be reduced in light of the fact that service was performed simultaneously. While 28 C.F.R. § 0.114 provides that the service fee applies to each item served, mileage will be apportioned between the two defendants served on October 23, 2012. The $37.52 mileage charge claimed as to defendants Melet and Awatanee individually will be reduced to $18.76 each, reducing the total charge to $118.76 each.
Accordingly, IT IS HEREBY ORDERED that:
1. Within fourteen days from the date of this order defendant Lipson shall pay to the United States Marshal the sum of $152.00 and defendants Melet and Awatanee shall each pay to the United States Marshal the sum of $118.76, unless within that time each 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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