Opinion
Case No. C05-5530 RBL.
May 25, 2006
ORDER
THIS MATTER comes on before the above-entitled Court upon Plaintiffs' Motion for Costs [Dkt. #18].
Having considered the entirety of the records and file herein, the Court rules as follows:
This is a products liability action wherein plaintiffs allege that a power strip manufactured by defendant caused property damages to a home owned and occupied by plaintiffs. Complaint, para. 11, Dkt. #1. The defendant is a foreign corporation with its principal place of business in Taiwan. Id., para 4. Plaintiffs seek the costs of service on defendant of the summons and complaint under Fed.R.Civ.P. 4(d)(5) because defendant failed to comply with a request for waiver of service.
Fed.R.Civ.P. 4(d) provides that a plaintiff may request and defendant may consent to waive service. The rule also provides that if a defendant fails to waive service, the costs of the service may be shifted to the defendant. However, the rule's cost shifting procedure only applies when both the plaintiff(s) and defendants(s) are located in the United States. Fed.R.Civ.P. 4(d)(2) ("If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the court shall impose the costs subsequently incurred in effecting service on the defendant. . . ."); see also, Schwarzer, Tashima, and Wagstaffe, Federal Civil Procedure Before Trial, Ch. 5 § 94, The Rutter Group, 2005. Defendant, a corporation with its principal place of business in Taiwan is not "located in the United States" for purposes of the rule. It is therefore,
ORDERED that Plaintiffs' Motion for Costs is DENIED.
The Clerk shall send uncertified copies of this order to all counsel of record, and to any party appearing pro se.