Opinion
1:20-cv-11894-JDL
02-02-2022
DENNIS SOLOMON, Plaintiff v. FRANK FREDRICKSON, et al., Defendants
RECOMMENDED DECISION ON PLAINTIFF'S REQUEST FOR COSTS AND DEFAULT JUDGMENT
John C. Nivison U.S. Magistrate Judge
Plaintiff seeks relief based on the alleged failure of several individuals named as defendants (the defendants) to respond to his requests for a waiver of service pursuant to Federal Rule of Civil Procedure 4(d)(1). (Motion, ECF No. 92.) Plaintiff asks the Court to award him the costs of service and to enter a default judgment against the defendants.Following a review of Plaintiff's submissions, I recommend the Court deny Plaintiff's request for relief.
Discussion
Rule 4(d)(1) provides that an individual who is subject to service of a summons and complaint “has a duty to avoid unnecessary expenses” to the plaintiff of making service. Fed.R.Civ.P. 4(d)(1). A plaintiff may notify a defendant that a lawsuit has been filed against the defendant and ask the defendant to waive service of summons. Id. The notice and request for waiver must be in writing, addressed to the individual defendant; name the court where the complaint was filed; be accompanied by a copy of the complaint, two copies of the waiver form, and a prepaid means for returning the form; inform the defendant of the consequences of waiving and not waiving service; state the date the waiver request is sent; give the defendant a reasonable time to return the waiver; and be sent by first-class mail or other reliable means. Fed.R.Civ.P. 4(d)(1)(A)-(G). None of the defendants has filed a return of service or executed a waiver of service.
Plaintiff bears the burden to show proper service of process under Rule 4(d)(1). Flores v. School Bd. of DeSoto Parish, 116 Fed. App'x 504, 508 (5th Cir. 2004). Plaintiff asserts he “properly served” the defendants “by U.S. Post Office, certified mail, signature requested, the Court-issued summons, a second waiver of service, the Complaint and methods to obtain ... a courtesy electronic copy in pdf and docx format . ...” (Motion at 1.) Plaintiff has provided no evidence to establish that he satisfied the requirements of the Rule or that he incurred service costs. Plaintiff, therefore, is not entitled to recover costs. McCoy v. Carlson, Case No. 3:17-cv-432. 2019 WL 2240246, at *1-2 (S.D. Ohio May 24, 2019) (“in order to recover costs and fees under Rule 4(d)(2), a plaintiff must make a sufficient showing that he satisfactorily complied with Rule 4(d)(1).”) Plaintiff's request for default judgment also fails because he has not demonstrated that he complied with the Rule and that the defendants failed to waive service.
Conclusion
Based on the foregoing analysis, I recommend the Court deny Plaintiff's request for costs and for default judgment.
NOTICE
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within fourteen (14) days of being served with a copy thereof. A responsive memorandum shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.