United States District Court, N.D. Illinois, Eastern Division
June 21, 2004.
CHARISSE THOMPSON, Plaintiff,
MIRIAM SOLO, Defendant.
The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Charisse Thompson moved to recover the costs of service from
Miriam Solo after Solo failed to return Thompson's two requests
for waiver of service. For the reasons stated below, the Court
grants Thompson's motion.
Thompson claims that after she filed suit, her attorney's
paralegal made phone contact with Solo on December 4, 2003 to
inform her of the lawsuit filed against her and to ask if Solo
would accept a waiver of service via fax. Thompson states that a
request for waiver of service was sent both via certified and
regular mail. Counsel later noticed that his office never
received return service from the US Post Office for the certified
mail. Thompson sent another request for waiver of service to
Solo. Thompson claims, and Solo does not deny, that Solo failed
to respond to either request by the stated deadlines.
After Solo failed to respond, Thompson hired a process server
to effectuate service on Solo. Based on an invoice from MJS
Investigations, it appears that a process server attempted to
make contact at Solo's residence. The process server returned and
spoke to Solo's husband, who claimed Solo was not at home. The process server returned twice
more, making no contact. On February 16, 2004, the process server
again encountered Solo's husband, who stated that Solo was not
home. The process server noted that she heard a female voice in
the background and believed that "the subject was avoiding. . . .
and refused to come to the door to except [sic] the summons and
complaint." Thompson Mot., Ex. B. After February 16, 2004,
Thompson had the process server investigate possible alternate
addresses. The process server served Solo personally with a
summons and complaint on February 20, 2004 at an alternate
address. Per the process server's invoice, the total cost of
service was $150: $50 for the attempted service at Solo's
residence; $50 for the investigation; and $50 for the successful
Solo makes two arguments in response to Thompson's motion.
First, Solo states that she filed an appearance and motion to
dismiss on February 13, 2004 and "immediately sent notice
thereof" to Thompson; she claims there was no need for service of
process and that Thompson's motion for costs should be denied.
The Court notes that the certificate of service attached to
Solo's motion omits the date on which the appearance and motion
were served. Second, Solo says that Thompson has not shown proof
that the request for waiver of service was sent via certified
mail. Solo does not provide any reason for her failure to respond
to the requests for waiver of service.
A plaintiff is entitled to request a waiver of formal service
from an individual defendant located in any United States
judicial district. See Fed.R.Civ.P. 4(d) & (e). If the
defendant fails to comply with a waiver of service without good
cause, the defendant must bear the costs incurred by the
plaintiff in effectuating formal service. See Fed.R.Civ.P.
4(d)(5). Forcing non-cooperative defendants to pay the costs of service encourages elimination of
such costs. See 4A C. Wright & A. Miller, Federal Practice and
Procedure § 1092.1 (3d ed. 2002).
When a defendant fails to comply with a request for waiver of
service, the plaintiff must serve the defendant with summons.
See Reavley v. Toyota Motor Sales US Corp., No. 00 C 3676, 2001
WL 127662, at *6 (N.D. Ill. Feb. 14, 2001). Under Fed.R.Civ.P.
4(e)(2), a plaintiff may serve an individual (1) "pursuant to the
law of the state in which the district court is located, or in
which service is effected," or (2) "by delivering a copy of the
summons and of the complaint to the individual personally or by
leaving copies thereof at the individual's dwelling house or
usual place of abode with some person of suitable age and
discretion residing therein." Illinois law likewise requires
summons to be served by leaving a copy of the summons with the
defendant personally, or at the defendant's usual place of abode
with a family member or other person residing there who is at
least 13 years old. 735 ILCS 5/2-203(a).
The defendant has "a duty to avoid unnecessary costs of serving
the summons." Fed.R.Civ.P. 4(d)(2). Thus, a defendant who
fails to return a waiver of service form must bear the costs of
formal service, including fees paid for unsuccessful and
successful attempts at service. See, e.g., United States v.
Nuttall, 713 F. Supp. 132, 138-39 (D. Del. 1989). See also
Morales v. Si Diamond Tech., Inc., 1999 WL 144469, at *1-2
(S.D.N.Y. Mar. 15, 1999). In Nuttall, a defendant was required
to reimburse the plaintiff for fees paid to a process server for
eighteen unsuccessful attempts, as well as for wages paid to an
IRS agent who eventually effectuated personal service after
waiting at the defendant's residence for several hours.
Nuttall, 713 F. Supp. at 138. Placing the blame on the
defendant for the need for formal service, the court rebuffed the
defendant's complaint that plaintiff had failed to effectuate
service in a more cost-effective manner. Id. at 139.
Solo has made no attempt to show that she had good cause for
failing to respond to the two requests for waiver of summons. The
Court rejects Solo's suggestion that the absence of proof of
certified mail service requires denial of Thompson's motion. A
request for waiver of service is to be "dispatched through
first-class mail or other reliable means." Fed.R.Civ.P.
4(d)(2)(B). See also Walton v. Lyons, 962 F. Supp. 126, 128
(C.D. Ill. 1997) (noting that waiver of service forms may be
mailed). Thus, there is no question that she must bear the $50
cost in serving her with summons.
In addition, Solo must bear the cost of the $50 investigation
fee and the $50 attempted service fee. It is true that Thompson's
process server could have left the documents with Solo's husband,
as he was a family member of suitable age and discretion and also
likely resided at Solo's residence. But this was not absolutely
clear from what the process server learned in her unsuccessful
attempts, and in any event plaintiff was not required to serve
process in that manner and potentially risk a future dispute over
the adequacy of service. The process server continued to attempt
personal service at Solo's residence on three more occasions and
finally succeeded in doing so at an alternate address. The
process server charged the plaintiff only $100 for the
unsuccessful attempts and investigation into alternate addresses,
an eminently reasonable fee.
As in Nuttall, any claim that the plaintiff did not serve
Solo in the most cost-efficient manner is unavailing. Solo
clearly violated her duty under Fed.R.Civ.P. 4(d)(2) to avoid
unnecessary costs when she failed to comply with the request for
waiver of service. Prior to sending the first request for waiver
of service, Thompson's counsel's paralegal called Solo to inform
her of the lawsuit and the forthcoming waiver of service. In
addition, Solo was given two separate opportunities to cooperate with Thompson's requests to
waive formal service. And there is at least some basis to believe
that on February 16, 2004 Solo was at home and was avoiding
service. In sum, Solo was responsible for Thompson having to hire
a process server in the first place and had opportunities to
avoid the imposition of those costs. It is appropriate for her to
bear all the costs incurred in effecting formal service.
Solo's filing of an appearance form on February 13, 2004 did
not negate the need for formal service. See Lewellen v. Morley,
909 F.2d 1073, 1077 (7th Cir. 1990). In any event, due to the
fact that her certificate of service accompanying the appearance
form was undated, there is no way to say for certain when Solo
sent the form to Thompson's counsel, and in any event there is no
evidence as to when Thompson's counsel received it.
For the reasons stated above, the Court grants Thompson's
motion for costs of service [docket # 5-1]. Defendant Miriam Solo
is directed to pay plaintiff's counsel $150 within seven days of
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