Summary
awarding costs and attorney's fees to plaintiff pursuant to Rule 4(d) for defendant's failure to return waiver of service of summons
Summary of this case from Fitzpatrick v. FitzpatrickOpinion
Civil Action No. 03-3616 SECTION "R".
June 10, 2004
ORDER AND REASONS
Plaintiffs Ronald and Martha Kennemer move the Court for the costs of service of process on defendant Dearman Auto Sales and Rentals, Inc. and the costs of filing this motion to recover costs, including attorney's fees, pursuant to Federal Rules of Civil Procedure 4(d)(2) and (5). Dearman has filed no opposition to the Kennemers' motion. For the following reasons, the Court grants the Kennemers' motion.
I. Factual Background
In December 2003, plaintiffs Ronald and Martha Kennemer sued a group of defendants, including defendant Dearman Auto Sales and Rentals, Inc., in this Court. In their complaint, the Kennemers allege that defendants violated the federal Motor Vehicle Information and Cost Savings Act, 49 U.S.C. § 32701. The Kennemers allege that defendants "passed off" a welded composite of two Ford Explorers as a 2000 model Ford Explorer. The Kennemers seek rescission of their purchase contract and compensatory and punitive damages.
On February 24, 2004, the Kennemers sent two copies of a waiver of service of summons, a self-addressed stamped envelope, and a copy of the complaint to David Dearman, the registered agent for service of process for Dearman. ( See Pl.s' Motion Costs, Ex. A). The Kennemers did not receive the signed waiver of service of summons from Dearman within the 30-day period provided in Rule 4(d)(2)(F) of the Federal Rules of Civil Procedure. The Kennemers then employed a private process server, who served Dearman on April 16, 2004. ( See Rec. Doc. No. 17).
Rule 4(d)(2)(F) provides that the defendant has a reasonable time within which to return the waiver, "which shall be at least 30 days from the date on which the requests was sent . . ." FED. R. CIV. P. 4(d)(2)(F).
The Kennemers now move the Court for attorneys' fees in the amount of $160.00, private service costs of $35.00, and postage and copying costs of $49.41 incurred as a result of Dearman's failure to return the waiver of service of process. ( See Pl.s' Motion Costs, Exs. B C).
II. Discussion
Federal Rules of Civil Procedure 4(d)(2) and (5) provide the conditions under which a plaintiff may recover attorney fees and costs when a defendant fails to comply with a request to waive service of a summons. Pursuant to Rule 4(d)(2),
[i]f 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 effectuating service on the defendant unless good cause for the failure be shown
Rule 4(d)(5) further provides that
the costs to be imposed on a defendant under paragraph (2) for failure to comply with a request to waive service of a summons shall include the costs subsequently incurred in effecting service under subdivision (e), (f), or (h) together with the costs including a reasonable attorney's fee, of any motion required to collect the costs of service.
Sections (e), (f), and (h) describe, respectively, the manner in which service may be effected upon: 1) individual defendants within a judicial district of the United States; 2) individual defendants in a foreign country; or 3) corporations or associations. See FED. R. CIV. P. 4(e), (f), (h).
The record clearly shows that Dearman failed to comply with the provisions set forth in the rule. In addition, the Kennemers have followed the appropriate procedures and documented all of the reasonable costs that they have incurred as a result of Dearman's lack of compliance. ( See Pl.s' Motion Costs, Exs. B C). Counsel for the Kennemers, Garth Ridge, attests that he spent .8 hours in preparing the motion for reimbursement of costs, which totals $160.00. ( See id., Ex. C). Ridge also attests that the costs of filing the motion resulted in $18.41 in postage fees and $34.10 for copies. ( See id.). Further, the fee for the private process server was $35.00. ( See id., Ex. B).
Because Dearman failed to comply with the Kennemers' request for waiver of service of summons, and because it has not shown good cause for the failure, the Court finds that the Kennemers are entitled to reimbursement of costs and an award of reasonable attorneys' fees in preparing this motion. See, e.g., Graves v. The Church of the Lord Jesus Christ of the Apostalic Faith, No. Civ. A. 02-CV-4056, 2003 WL 21659168, at *1 (E.D. Pa. 2003) (awarding costs and attorneys' fees to plaintiff pursuant to Rule 4(d)(2) and (5) for defendant's failure to return waiver of service of summons); Ferguson v. Interpublic Group., Inc., No. 97 Civ. 3064, 1998 WL 150661, at *1-2 (S.D.N.Y. 1998) (same).
III. Conclusion
For the foregoing reasons, the Court GRANTS the Kennemers' motion. The Court awards the Kennemers costs in the amount of $247.51.