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Memory Film Productions v. Makara

November 8, 2007

MEMORY FILM PRODUCTIONS, ET AL., PLAINTIFFS,
v.
PETER MAKARA, ET AL., DEFENDANTS.
WANDA SCHINDLEY, PHD (A/K/A DALLAS PUBLISHING), PLAINTIFF,
v.
BARRY LITUCHY, DEFENDANT.



The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge

ORDER

Pending before the court are two motions by Wanda Schindley, pro se defendant and counterclaim plaintiff in the 05-cv-3735 action. First, Schindley has requested that she be reimbursed the costs of effecting service of process of her second amended answer and counterclaim upon those counterclaim defendants who failed to waive service upon them pursuant to Federal Rule of Civil Procedure 4(d). Second, Schindley has moved for sanctions against certain counterclaim defendants who failed to appear for depositions on court-ordered dates, despite having been served with a notice of deposition. The court addresses each of Schindley's motions in turn.

I. Schindley's Request for Reimbursement of Service Costs Under Rule 4(d)

Schindley's first request is contained in her motion for default judgment and sanctions, filed March 15, 2007, which, inter alia, seeks reimbursement of the costs she incurred in effecting service of process upon counterclaim defendants who refused to waive service of process pursuant to Federal Rule of Civil Procedure 4(d). (See docket no. 204, Motion for Default Judgment and Motion for Sanctions and Order by Wanda Schindley, dated 3/15/07 (the "3/15/07 Motion"), ¶¶ 15, 16, 20.) The Honorable Brian M. Cogan denied Schindley's motion for default judgment and sanctions on March 26, 2007, noting that "there is no legal obligation on the part of a defendant to execute a waiver of service." (See docket no. 210).

Although there is no legal obligation for a defendant to execute a waiver of service in the context of a default judgment, Federal Rule of Civil Procedure 4(d)(2) states that: "An individual, corporation or association that is subject to service . . . has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons." The rule requires that the notice and request for waiver:

(A) shall be in writing and shall be addressed directly to the defendant, if an individual . . . ;

(B) shall be dispatched through first-class mail or other reliable means;

(C) shall be accompanied by a copy of the complaint and shall identify the court in which it has been filed;

(D) shall inform the defendant, by means of a text prescribed in an official form promulgated pursuant to Rule 84, of the consequences of compliance and of a failure to comply with the request;

(E) shall set forth the date on which request is sent;

(F) shall allow the defendant a reasonable time to return the waiver, which shall be at least 30 days from the date on which the request is sent . . . ; and

(G) shall provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.

Fed. R. Civ. P. 4(d)(2). Where a plaintiff provides notice and a request for waiver as required under Rule 4(d)(2), and a defendant located within the United States fails to comply with the request for waiver, "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). See Yalincak v. Sherman, No. 07-cv-170, 2007 U.S. Dist. LEXIS 76989, at *5 (D. Conn. Oct. 17, 2007) (imposing costs of effecting service of process on defendants, where defendants declined to waive formal service); Odom v. Kerns, No. 99 Civ. 10668, 2000 U.S. Dist. LEXIS 12834, at *4 (S.D.N.Y. Aug. 31, 2000) (finding award for costs of service of process to be "mandatory" unless defendants demonstrated good cause for their failure to execute waiver of service).

Schindley has submitted documentation indicating that she mailed a summons, her second amended answer and counterclaim, two copies of the waiver of service form, and a stamped, return envelope, by certified mail, to counterclaim defendants Cliadakis, Cooper, D'Angelo, Friendly, Elich, Jenkins, Krainovich, Lituchy, Martjak, Nestorovich and Yelesiyevich. (See docket nos. 212, 214-222, and 235.) Other than counterclaim defendant Friendly, who signed the waiver of service form on February 22, 2007 (see docket no. 212), no other counterclaim defendants returned a waiver of service to Schindley. After failing to receive waivers of service from the counterclaim defendants, Schindley proceeded to effect service of process--either personally or, where personal service was attempted but unsuccessful, ...


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