Balthrope v. Sacramento County Department of Health and Human Services et al
Filing
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ORDER signed by Magistrate Judge John F. Moulds on 11/7/11 ORDERING that within 14 days from the date of this order defendant County of Sacramento shall pay to the United States Marshal the sum of $56.02, unless within that time defendant files a written statement showing good cause for its failure to waive service; and the Clerk is directed to serve a copy of this order on the U.S. Marshal. (cc: USM)(Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ARIEL BALTHROPE,
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Plaintiff,
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vs.
SACRAMENTO COUNTY OF
HEALTH AND HUMAN SERVICES,
et al.,
Defendants.
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ORDER
/
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No. 2:10-cv-3003-JAM-JFM (PS)
Plaintiff is proceeding pro se and in forma pauperis in this action seeking relief
pursuant to 42 U.S.C. § 1983.
On May 25, 2011, the court ordered the United States Marshal to serve process
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upon the defendants in this case. The Marshal was directed to attempt to secure a waiver of
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service before attempting personal service on defendants. If a waiver of service was not returned
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within sixty days, the Marshal was directed to effect personal service on the defendants in
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accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C.
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§ 566(c), without prepayment of costs, and to file the return of service with evidence of any
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attempt to secure a waiver of service and with evidence of all costs subsequently incurred in
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effecting personal service.
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On August 22, 2011, the United States Marshal filed a return of service with a
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USM-285 form showing total charges of $56.02 for effecting personal service on defendant
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“Sacramento County Department of Health and Human Services.” The form shows that a waiver
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of service form was mailed to the defendant on June 3, 2011, and that no response was received.
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However, review of the docket shows that County of Sacramento (erroneously sued as County of
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Sacramento Department of Health and Human Services / Child Protective Services) appeared in
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this action by filing an answer on July 21, 2011.
Rule 4 of the Federal Rules of Civil Procedure provides, in pertinent part, as
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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 . . . .
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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.
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Fed. R. Civ. P. 4(d)(2).
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Defendant’s answer notwithstanding, the court finds that defendant was given the
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opportunity required by Rule 4(d)(2) to waive service and has failed to comply with the request.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Within fourteen days from the date of this order defendant County of
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Sacramento shall pay to the United States Marshal the sum of $56.02, unless within that time
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defendant files a written statement showing good cause for its failure to waive service. The
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court does not intend to extend this fourteen day period.
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2. The Clerk of the Court is directed to serve a copy of this order on the U.S.
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Marshal.
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DATED: November 7, 2011.
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/014;balt3003.taxcost
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