McGuire v. Martel
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 11/14/11 ORDERING that within 14 days from the date of service of this order, defendants Firman and Cordero shall pay to the United States Marshal the sum of $110.00 and $100.90 respecti vely, unless the defendant at issue files a written statement showing good cause for his or her failure to waive service. The court does not intend to extend this 14-day period. The Clerk is directed to serve a copy of this order on the U.S. Marshal. (cc USM)(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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FRAISURE E. SMITH,
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Plaintiff,
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vs.
SOLANO COUNTY, et al.,
Defendants.
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ORDER
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No. CIV S-11-0412 MCE EFB P
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
U.S.C. § 1983.
On June 28, 2011, the court ordered the United States Marshal to serve process upon
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defendants Cordero, Corey, and Firman. The Marshal was directed to attempt to secure a waiver
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of service before personally serving the defendant. However, if a waiver of service was not
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returned within 60 days, the Marshal was directed to (1) personally serve defendant without
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prepayment of costs under Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C.
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§ 566(c); and (2) file the return of service with evidence of attempts to secure a waiver and costs
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subsequently incurred in effecting personal service.
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On October 31, 2011, the United States Marshal filed a return of service with a USM-285
form showing total charges of $110.00 and $100.90 for personally serving defendants Firman
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and Cordero. The form shows the Marshal mailed defendants Firman and Cordero waiver of
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service forms on June 29, 2011, but they did not respond within the 60-day deadline.
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Rule 4 of the Federal Rules of Civil Procedure provides, in pertinent part:
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If a defendant located within the United States fails, without good cause, to sign
and return a waiver requested by a plaintiff located within the United States, the
court must impose on the defendant:
(A) the expenses later incurred in making service; and
(B) the reasonable expenses, including attorney’s fees, of any motion required to
collect those service expenses.
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Fed. R. Civ. P. 4(d)(2).
The court finds defendants Firman and Cordero were given the opportunity required by
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Rule 4(d)(2) to waive service but failed to do so. Although Firman and Cordero executed
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waivers of service on November 4, 2011, they failed to do so in a timely manner before the U.S.
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Marshal personally served them. See Dckt. Nos. 19, 20.
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Accordingly, the court hereby orders that:
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1. Within 14 days from the date of service of this order, defendants Firman and Cordero
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shall pay to the United States Marshal the sum of $110.00 and $100.90 respectively, unless the
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defendant at issue files a written statement showing good cause for his or her failure to waive
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service. The court does not intend to extend this 14-day period.
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2. The Clerk is directed to serve a copy of this order on the U.S. Marshal.
Dated: November 14, 2011.
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