United States District Court, S.D. California
ORDER DENYING PLAINTIFF’S MOTION FOR SERVICE BY
THE UNITED STATES MARSHALS SERVICE AND FOR COSTS OF SERVICE
[ECF No. 29]
Hon.Cynthia Bashant United States District Judge
before the Court is Plaintiff Anthony Allen Oliver’s
motion for service by the United States Marshals Service and
for costs of service. (ECF No. 29.) For the following
reasons, the Court DENIES Plaintiff’s motion.
SERVICE BY UNITED STATES MARSHALS SERVICE
Plaintiff, who is proceeding pro se, requests that
the Court order the United States Marshals Service to serve
the Summons and Complaint on Defendants. Under Federal Rule
of Civil Procedure 4(c)(2), “[a]ny person who is at
least 18 years old and not a party may serve a summons and
complaint.” At a plaintiff’s request, the court
may direct that service be made “by a United States
marshal or deputy marshal or by a person specially appointed
by the court.” Fed.R.Civ.P. 4(c)(3). If the plaintiff
is proceeding in forma pauperis or as a seaman,
service by the United States Marshals Service is mandatory.
Id. If the plaintiff is not proceeding in forma
pauperis or as a seaman, the decision falls within the
discretion of the court. Id.; accord Bax v.
Executive Office for U.S. Attorneys, 216 F.R.D. 4, 4
exercising this discretion, courts have been mindful that
Congress amended Rule 4 ‘primarily to relieve United
States marshals of the burden of serving summonses and
complaints in private civil actions.’”
Bax, 216 F.R.D. at 4 (quoting Lovelace v. Acme
Mkts., Inc., 820 F.2d 81, 83 (3d Cir. 1987)); see
also Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir.
1991) (noting that the legislative history of Rule 4 shows
congressional intent “to relieve the marshal of the
duty of routine[ ] servi[ce]” in private civil
actions). “Accordingly, courts have held that a
plaintiff requesting service by the United States Marshal
first must attempt service by some other means authorized by
Rule 4.” Bax, 216 F.R.D. at 4. Service by a
United States Marshal is also appropriate in circumstances a
plaintiff is incarcerated or where a law enforcement presence
appears necessary to keep the peace. William W. Schwarzer et
al., Cal. Practice Guide: Fed. Civ. Pro. Before
Trial ¶ 5:83 (The Rutter Group 2014).
Plaintiff is not proceeding in forma pauperis and is
not a seaman. Therefore, the Court has the discretion to
determine whether service by the United States Marshals
Service is appropriate. See Fed. R. Civ. P. 4(c)(3).
exercising this discretion, the Court notes that Plaintiff is
not incarcerated, and there is no indication that a law
enforcement presence is necessary to keep the peace in
serving Defendants. Moreover, Plaintiff has not demonstrated
to the Court’s satisfaction that he is unable to serve
the Defendants with the Complaint and Summons through other
authorized means. See Bax, 216 F.R.D. at 4.
Plaintiff claims his former counsel informed him that
Defendants’ counsel accepted service for Defendants,
but he has been unable to verify whether that is true. (Mot.
5:5-8.) The solution, then, is for Plaintiff to
attempt service as authorized by Federal Rule of Civil
Procedure 4. If service is successful, he will be able to
prove that Defendants were served by filing the
server’s affidavits with the Court. See Fed.
R. Civ. P. 4(l)(1). A server’s affidavit is
also known as a “proof of service.” Plaintiff may
wish to seek the assistance of a professional process server
to assist him, although service can be accomplished by anyone
who is at least eighteen years old and not a party to this
Plaintiff is able to demonstrate that he is unable to serve
Defendants through other authorized means, then he may refile
his motion for service by the United States Marshals Service.
See, e.g., Bax, 216 F.R.D. at 4; Jones
v. Goodman, No. Civ. A. 91-7560, 1992 WL 185634, at *1
(E.D. Pa. July 21, 1992).
COSTS OF SERVICE
also seeks an order requiring Defendants to pay the costs of
service. Federal Rule of Civil Procedure 4(d) provides
plaintiffs with a procedure for asking defendants to waive
formal service of process and imposing on them the
“duty to avoid unnecessary expenses of serving the
summons.” If a defendant located in the United States
receives an adequate notice of the action and request for
waiver of service but fails, without good cause, to sign and
return the waiver, then “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 denies Plaintiff’s request for costs of
service for several reasons. First, Defendant City of
Oceanside is exempt from the waiver process because it is not
an “individual, corporation, or association that is
subject to service under Rule 4(e), (f), or (h).”
See Fed. R. Civ. P. 4(d)(1). Rather, the City must
be served under Rule 4(j)(2). See Id. 4(J)(2). Thus,
Plaintiff cannot use Rule 4(d)(2) to recover the costs of
serving the City.
Plaintiffs request for costs of service for serving the
remaining Defendants is premature. Because these Defendants
are individual police officers who are sued in both their
individual and official capacities, they are subject to Rule
4(d). See Fed. R Civ. P. 4(d); accord Whatley v.
District of Colombia, 188 F.R.D. 1, 2 (D.D.C. 1999)
(concluding municipal corporation employees sued in their
individual and official capacities are subject to Rule 4(d)).
However, Plaintiff has not demonstrated that these Defendants
have been sent an adequate notice of this action and request
to waive service. See Fed. R. Civ. P. 4(d)(1).
Similarly, Plaintiff has not shown that thirty days have
elapsed since the request was sent, see id 4(d)(F),
or that Plaintiff has since incurred expenses to accomplish
service on these Defendants, see id 4(d)(2). His
request as to these Defendants is therefore premature.
Consequently, the Court denies Plaintiffs request.
light of the foregoing, the Court denies Plaintiffs motion
for service by the United States Marshals Service ...