Contreraz v. Stockbridge et al
Filing
42
ORDER denying 34 Request for reimbursement for costs of personal service signed by Magistrate Judge Sandra M. Snyder on 3/1/2010. (Lundstrom, T)
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1 2 3 4 5 6 7 8 9 10 11 12 Plaintiff, 13 vs. 14 STOCKBRIDGE, et al., 15 Defendants. 16 / 17 I. 18 Plaintiff, Michael Contreraz aka Lofofora Eva Contreraz ("Plaintiff"), is a state prisoner 19 proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff 20 filed the complaint commencing this action on December 24, 2006. (Doc. 1.) On February 3, 2009, 21 Plaintiff filed an amended complaint. (Doc. 17.) On May 8, 2009, the Court issued an order for this 22 action to proceed on Plaintiff's amended complaint against defendants C/O Davis, C/O Carlos, C/ O 23 Stockbridge, Sgt. Franco, and Lt. Rodriguez. (Doc. 18.) On January 13, 2009, the Court ordered the 24 United States Marshal ("Marshal") to serve process upon the defendants in this action. (Doc. 20.) On 25 December 31, 2009, the Marshal filed a USM-285 form indicating that on November 20, 2009, personal 26 service was executed upon defendant Lieutenant Rodriguez ("Defendant"). (Doc. 34.) 27 /// 28 BACKGROUND (Doc. 34.) ORDER DENYING REQUEST BY UNITED STATES MARSHAL FOR REIMBURSEMENT OF COSTS BY DEFENDANT RODRIGUEZ MICHAEL CONTRERAZ aka LOFOFORA EVA CONTRERAZ, 1:06-cv-01817-LJO-SMS-PC IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
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On December 31, 2009, the Marshal filed a request for a court order requiring Defendant to reimburse the costs incurred by the Marshal for personal service, pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure. (Doc. 34.) On February 4, 2010, the Court ordered Defendant to file a response to the Marshal's request. (Doc. 39.) On February 24, 2010, Defendant filed a response opposing the Marshal's request. (Doc. 50.) II. DISCUSSION Rule 4(d)(2) of the Federal Rules of Civil Procedure provides in part: 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 . . . . 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. Fed. R. Civ. P. 4(d)(2). The Marshal requests the Court to impose costs on Defendant for his failure to avoid unnecessary costs. On December 31, 2009, the Marshal filed a USM-285 form indicating that a Waiver of Service form was mailed to Defendant on June 18, 2009, and no response was received. (Doc. 34.) Personal service was executed upon Defendant on November 20, 2009, with costs of $171.60. Id. Defendant argues that the Marshal's request for costs is unwarranted because there was no need for the Marshal to effect personal service upon Defendant. Defendant Rodriguez appeared in this action on August 17, 2009, by filing a motion to dismiss pursuant to Rule 12(b) . (Doc. 22.) Defendant argues that because he waived service by filing a responsive pleading on August 17, 2009, there was no need for the Marshal to effect personal service upon him on November 20, 2009. The Court agrees that the Marshal's request for costs is unwarranted. The Court's order of June 1, 2009, which directed the Marshal to serve process in this action, provided that, "In the event that defendants make an appearance in this action by filing an answer, dispositive motion, or other pleading, the U.S. Marshal Service need not personally serve those defendants." (Doc. 20 at 2 ¶6.) Because Defendant filed a dispositive motion, the Marshal did not need to personally serve him, and the request
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for reimbursement of costs is unwarranted.1 Therefore, the Court shall deny the Marshal's request for reimbursement. III. CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that: 1. The Marshal's request for reimbursement for costs of personal service upon defendant Lieutenant Rodriguez, filed on December 31, 2009, is DENIED; and 2. The Clerk is DIRECTED to serve a copy of this order on the United States Marshal, Sacramento, California.
IT IS SO ORDERED. Dated: icido3 March 1, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE
T h e court's electronic docket, which is accessible to the Marshal, shows whether a defendant has made an a p p e a r a n c e in an action.
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