Murillo v. Ramos

1

MONA SALCIDA MURILLO, Plaintiff, v. A. RAMOS, et al., Defendants.

No. 3:22-cv-00548-TWR-AHG

United States District Court, S.D. California

July 6, 2023

ORDER GRANTING MOTION FOR DEFENDANTS TO BEAR COSTS OF SERVICE

[ECF No. 32]

HONORABLE ALLISON H. GODDARD, UNITED STATES MAGISTRATE JUDGE

Before the Court is Plaintiff's Motion to Have Defendants Bear Cost of Service, for Failure to Waive Service Under F.R.C.P Rule 4 (ECF No. 32) (the “Motion for Costs”) filed on March 24, 2023. Plaintiff brings the Motion for Costs pursuant to Fed.R.Civ.P. 4(d)(2), asking that the Court order Defendants to bear the cost of service due to their failure to timely return executed waivers of service. For the reasons that follow, the motion is GRANTED.

I. PROCEDURAL BACKGROUND

The relevant procedural history is as follows: On July 28, 2022, the Court denied Plaintiff's second motion to proceed in forma pauperis (“IFP”) in this action, dismissed the action without prejudice, and required Plaintiff to pay the full $402 filing fee in order to reopen the case. ECF No. 12. Plaintiff first challenged the Court's ruling by filing a Motion for Reconsideration (ECF No. 13), which was denied on August 25, 2022 (ECF No. 14). Plaintiff tried twice more to seek leave to proceed IFP (ECF Nos. 15, 20), but the Court rejected these attempts and ordered that no further motions to proceed IFP would be considered. ECF Nos. 19, 21. Plaintiff ultimately paid the filing fee on January 30, 2023, and the case was reopened. ECF No. 25. On February 2, 2023, the Court screened Plaintiff's operative First Amended Complaint (“FAC”) pursuant to 28 U.S.C. § 1915A and found that Plaintiff's FAC contained Eighth Amendment and Americans with Disabilities Act claims sufficient to survive screening. ECF No. 26. Because Plaintiff was not granted leave to proceed IFP,^[1]the Court ordered Plaintiff to execute service upon each Defendant “either by filing with the Clerk of the Court an executed waiver on behalf of each Defendant, or by filing proof of personal service of both the FAC and summons upon each Defendant pursuant to Fed.R.Civ.P. 4(1) should that Defendant fail to sign and return her properly requested waiver.” Id. at 4-5.

On March 6, 2023, Plaintiff filed a Motion for U.S. Marshal Service (ECF No. 29), requesting that the Court direct the U.S. Marshal Service to serve the summons and FAC on Defendants notwithstanding Plaintiff's failure to qualify for IFP status. However, before the Court could address the request that service be executed by the U.S. Marshal Service, on March 24, 2023, Plaintiff filed the instant Motion for Costs. ECF No. 32. In the Motion for Costs, Plaintiff asserts that she served Defendants by several means on February 10, February 13, and February 16, 2023. Specifically, Plaintiff alleges: (1) on February 10, 2023, she served each Defendant with a waiver request, a copy of the summons, civil cover sheet, and complaint, and a pre-stamped, pre-addressed envelope, using “RJD-CDCR interdepartment mail,” (2) on February 13, 2023, Plaintiff again sent copies of the waiver requests, summonses, civil cover sheet and complaint, and prepaid envelopes for each named Defendant to the prison litigation officer, and (3) on February 16, 2023, Plaintiff sent a third set of copies of the waiver forms, summonses, and complaint to all named Defendants through “CDCR Legal Register Mail.” Id. at 1-2.

On April 11, 2023, Plaintiff filed: (1) a Declaration from Jerome Webb, a fellow inmate, regarding service by mail on all Defendants as well as personal service on Defendant Cowart (ECF No. 36) (“Webb Declaration”); (2) a Declaration from Plaintiff regarding service by mail on all Defendants, personal service on Defendants Cowart and Banuelos by Jerome Webb, personal service on Defendant A. Ramos by William Hearn, and personal service on Defendant Cowart by John Angel Salcida (ECF No. 37) (“Plaintiff's Declaration”); (3) a proof of service regarding Defendant A. Ramos (ECF No. 34), indicating that fellow inmate William Hearn personally served A. Ramos on April 1, 2023; (4) a proof of service regarding Defendant Cowart (ECF No. 35), indicating that fellow inmate John Angel Salcida personally served Defendant Coward on April 4, 2023.

On April 17, 2023, the Court received executed waivers of service from each Defendant via the U.S. Marshal Service, which were dated April 5, 2023 and received by the U.S. Marshal Service on April 6, 2023. See ECF Nos. 38, 39, 40, 41, 42.

II. LEGAL STANDARD

Rule 4(e) of the Federal Rules of Civil Procedure provides that service may be effected by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made, by delivering a copy of the summons and complaint to the defendant personally, or by delivering a copy of each to an agent authorized by law to receive service of process. Fed.R.Civ.P. 4(e). Under Rule 4(d), a defendant subject to service under Rule 4(e) “has a duty to avoid unnecessary expenses of serving the summons.” Therefore, a defendant who fails, “without good cause,” to sign and return a waiver requested by a plaintiff must pay the expenses later incurred by the plaintiff in making service. Fed.R.Civ.P. 4(e)(1)-(2). Rule 4(d) also sets forth the requirements for a plaintiff's notice and request for waiver. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed;

(C) be accompanied by a copy of the complaint, 2 copies of the waiver form appended to this Rule 4, and a prepaid means for returning the form;

(D) inform the defendant, using the form appended to this Rule 4, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent-or at least 60 days if sent to the defendant outside any judicial district of the United States-to return the waiver; and

(G) be sent by first-class mail or other reliable means.

Fed. R. Civ. P. 4(d)(A)-(G).

Although service of a summons and complaint by mail is effective under California law and is thus effective in this judicial district pursuant to Federal Rule 4(e), such service is only “deemed complete on the date a written acknowledgement of receipt of summons is executed, if such acknowledgement thereafter is returned to the sender.” Cal. Civ. Proc. Code § 415.30(c). Therefore, absent written acknowledgment of receipt of summons (such as an executed waiver of service), service by mail is not effective in California. State law provides the recipient 20 days to provide written acknowledgement of receipt of summons; otherwise, service by mail is not considered complete and the party to whom the summons was mailed “shall be liable for reasonable expenses thereafter incurred in serving or attempting to serve the party by another method . . . and, except for good cause shown, the court in which the action is pending, upon motion, with or without notice, shall award the party such expenses[.]” Id. § 415.30(d). This provision mirrors the waiver provision under Rule 4(d) of the Federal Rules, which, as discussed, also requires a defendant to timely sign and return a waiver requested by a plaintiff or else the Court “must impose” on the defendant “the expenses later incurred in making service[.]” Fed.R.Civ.P. 4(d)(2)(A). The Federal Rules, however, provide that a waiver request must “give the defendant a reasonable time of at least 30 days after the request was sent to return the waiver[.]” Fed.R.Civ.P. 4(d)(1)(F).

III. DISCUSSION

Plaintiff asserts that Jerome Webb charged Plaintiff $80.00 for acting as a process server to effect personal service on both Defendant A. Ramos and Defendant A. Cowart, and William Hearn charged Plaintiff $25.00 for acting as a process server to effect service on Defendant Banuelos. See ECF Nos. 31, 35, 36, 53.^[2] Additionally, Jerome Webb has charged Plaintiff $50.00 for postage and mailing of documents. ECF No. 53, Webb Decl. ¶ 6. Therefore, the total costs of service allegedly incurred by Plaintiff is $155.00.^[3]

Defendants argue that they should not be required to reimburse Plaintiff for the costs of personal service pursuant to Rule 4(d), because, by its plain terms, the provision “does not apply when a defendant has signed and returned a waiver of service.” ECF No. 52 at 5-6. Thus, because Defendants returned signed waivers to the United States Marshal Service, they contend that the provision should not apply to them at all. Id. Additionally, Defendants argue that to the extent Plaintiff argues they failed to timely return signed waivers, the Court should reject such claim, because they returned signed waivers on April 5, 2023, less than 30 days after accepting the waiver requests mailed by Plaintiff through Mr. Webb on March 6 and March 12, respectively. Lastly, Defendants contend that Plaintiff has not established that she actually and substantially complied with the Rule 4(d)(1) requirements for waiver requests prior to incurring the costs of personal service, because she did not establish that the prison's interdepartmental mail is a “reliable means” to effect service, indicate that she addressed the notice and waiver requests to the individual defendants, or state that she included the requisite information regarding the consequences of waiving service. Id. at 6-8.

The Court finds that Plaintiff substantially complied with the requirements...