Opinion
Case No. 1:04-CV-05464-OWW-LJO-P.
February 17, 2006
ORDER DISCHARGING ORDER TO SHOW CAUSE AGAINST DEFENDANT CATES (Doc. 42)
On January 4, 2006, pursuant to Federal Rule of Civil Procedure 4(d)(2), the Court ordered Defendant Cates to show good cause for failing to waive service. Defendant filed a response to the order on February 3, 2006. Defendant denies that she was personally served and contends that she should not be ordered to pay the Marshal's costs because she voluntarily made an appearance in this action by filing an answer.
The Marshal certified that service was accepted on behalf of Defendant by her husband on October 21, 2005. Therefore, personal service was effected on Defendant on that date and she had a legal obligation to respond to the complaint. Fed.R.Civ.P. 4(e)(2). Nevertheless, because the Marshal was provided with two addresses at which Defendant could be found, personal service was effected at the second address, and the Court cannot make a determination that the waiver mailed on July 8, 2005 was also mailed to the second address, the Court will not tax costs against Defendant. The Court notes that Defendant also provided a copy of a waiver she contends was mailed to her on October 11, 2005, less than sixty days before the Marshal effected service. It is unclear why personal service would have been effected less than sixty days from the mailing of that waiver. Nevertheless, whatever the reason for this, Defendant shall not be taxed the cost.
Accordingly, it is HEREBY ORDERED that the order to show cause, filed January 4, 2006, is DISCHARGED, and the cost of personal service shall not be taxed against Defendant Cates.
IT IS SO ORDERED.