Opinion
No. 2:11-cv-0874 KJN P
11-28-2012
ALFRED OSHUN NUNNERY, Plaintiff, v. J. LUZADA, et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this action seeking relief pursuant to 42 U.S.C. § 1983. The United States Marshal has submitted a request for reimbursement of costs incurred as a result of effecting personal service on defendant Luzadas. (Dkt. No. 20.)
On August 24, 2012, the court directed the United States Marshal to serve process upon defendant Luzadas in this case. (Dkt. No. 15.) The Marshal was directed to attempt to secure a waiver of service before attempting personal service on defendant. If a waiver of service was not returned within sixty days, the Marshal was directed to effect personal service on the defendant in accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c), without prepayment of costs, and to file the return of service with evidence of any attempt to secure a waiver of service and with evidence of all costs subsequently incurred in effecting personal service.
On November 20, 2012, the United States Marshal filed a return of service with a USM-285 form, showing total charges of $155.88, for effecting personal service on defendant Luzadas. The return (Dkt. No. 19) shows that a waiver of service form was mailed to the defendant on September 7, 2012, but no response was received. On November 7, 2012, the Marshal personally served defendant Luzadas. (Id.)
Rule 4 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
An individual, corporation, or association that is subject to service under subdivision (e), (f), or (h) and that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons . . . .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 unless good cause for the failure be shown.
The court finds that defendant Luzadas was given the opportunity required by Rule 4(d)(2) to timely waive service, but failed to comply with the request.
Accordingly, IT IS HEREBY ORDERED that:
1. The request for reimbursement submitted by the U.S. Marshal (Dkt. No. 20), is granted.
2. Within fourteen days after service of this order, defendant Luzadas shall pay to the United States Marshal the sum of $155.88, unless within that time defendant files with the court a written statement showing good cause for his failure to timely waive service. The court does not intend to extend this fourteen-day period.
3. The Clerk of Court is directed to serve a copy of this order on the United States Marshal.
SO ORDERED.
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KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
nunn0874.reimb.costs.usm