Pope v. Garcia et al
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 11/7/11 DENYING 19 Motion for reimbursement for personal service of defendant Garcia; Clerk of the Court is to serve a copy of this order upon Rochelle Wills, United States Marshals Service. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JACOBY POPE,
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Plaintiff,
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vs.
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No. CIV S-11-0101 LKK GGH P
R. GARCIA, et al.,
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Defendant.
ORDER
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On September 7, 2011, the U.S. Marshal filed a request for the reimbursement of
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the fees associated with personal service of defendant Garcia. Defendant Garcia (by way of
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Linda Young, Litigation Coordinator at California State Prison (CSP)-Sacramento) was
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personally served by the U.S. Marshals Service on August 31, 2011. Docket # 18. By order,
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filed on September 14, 2011, this court directed defendant Garcia to respond to the request.
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Counsel for defendant Garcia responded, on September 16, 2011, by a declaration wherein he
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attests that, although his office did not receive defendant Garcia’s signed request for
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representation until September 6, 2011, the request was signed and dated June 23, 2011. Docket
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# 25, Declaration of M. Wrosch, ¶¶ 1, 9.
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When his office had agreed to represent the defendants in this action, they
requested the service documents and signed requests for representation from CSP-Sacramento on
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June 22, 2011, and they received on that date signed requests for representation for three of the
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defendants, according to M. Wrosch. Wrosch Dec., ¶¶ 4-5. Also on June 20, 2011, counsel for
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defendants followed up with the CSP-Sacramento Litigation Department requesting defendant
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Garcia’s request for representation, which they did again twice on June 23, 2011, and again on
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August 30, 2011. Id., ¶¶ 5.6. When counsel sought information, on September 15, 2011, from
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the CSP-Sacramento Litigation Department regarding service of defendant Garcia, he was
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informed that they had received Garcia’s request for representation on June 23, 2011 and had
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forwarded it both to the state Office of Legal Affairs and the state Attorney-General’s Office,
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neither of which provided the signed request to counsel’s office. Id., ¶ 10. Defendants’ counsel
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explains that the procedure for receiving service documents can cause delays and misplaced
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documents. Id., ¶ 11.
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Under Fed. R. Civ. P. 4(d)(2), the court is authorized to impose the cost of service
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on a defendant located in the United States who, when requested by a plaintiff, fails to sign a
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waiver and return it without good cause. In the circumstances, the court will not impose the cost
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of personal service of defendant Garcia, who was evidently not dilatory in providing the
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necessary documentation to the litigation department to be represented, at or about the same time
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as the other defendants for whom service was waived, and thereafter was apparently delayed
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through no fault of his own. Nor was his counsel remiss in his office’s several efforts to obtain
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the form they needed to proceed on his behalf. It is unfortunate that the Marshals Service was
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tasked and taxed with the cost and effort of unneeded service of process, but it was not
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unforeseeable that the inadvertent delay occurred in light of the cumbersome system by which the
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request forms are evidently processed. In any event, defendant Garcia will not be ordered to pay
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the cost of personal service and the Marshals’ request will be denied.
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Accordingly, IT IS ORDERED that:
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1. The request for reimbursement for personal service of defendant Garcia, filed
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on September 7, 2011 (docket # 19), is denied; and
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2. The Clerk of the Court is to serve a copy of this order upon Rochelle Wills,
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United States Marshals Service.
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DATED: November 7, 2011
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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