United States District Court, S.D. Illinois
G. WILKERSON United States Magistrate Judge
Jade Green, filed this suit on July 29, 2016, alleging
Defendants Chris Quick, the State's Attorney for Lawrence
County, Illinois, Russell Adams, the Sherriff of Lawrence
County, Angela Howser, Plaintiff's mother, and Jack
Howser, Plaintiff's stepfather, violated her
constitutional rights. Soon after filing her complaint,
Plaintiff filed a series of motions related to service, or
the inability to effect service, on defendants. These
motions, including Plaintiff's motion to issue summons
and to assess costs (Doc. 5), motion to assess costs (Doc.
26), motion for extension of time to serve defendants (Doc.
27), and motion for pre-judgment attachment order (Doc. 28),
are now before the Court.
to Issue Summons and to Assess Costs (Doc. 5) and Motion for
Extension of Time to Serve Defendants (Doc.
motion, Plaintiff asserts that she mailed a copy of the
complaint, along with a Notice of Lawsuit and Waiver of
Service of Summons to Angela and Jack Howser (“the
Howser Defendants”); however, Plaintiff claims that the
Howser Defendants failed, and refused to pick up their
certified mail from the post office and did not execute the
waivers of service necessary to serve them with process.
Accordingly, Plaintiff asks the Court to enter an order
directing the Clerk to issue summonses for the Howser
Defendants, authorize that the summonses be served by the
United States Marshal's office, and assess the costs of
said service to the Howser Defendants. Also, Plaintiff asks
the Court to award $700.00 in attorney's fees incurred in
bringing this action, preparing the summonses and
effectuating service upon the Howser Defendants.
respect to Plaintiff's request that the Clerk issue
summonses for the Howser Defendants and authorize that the
summonses be served by the United States Marshal's
office, her motion is GRANTED. The Clerk of Court is DIRECTED
to re-issue summonses for service of process on Defendants
Angela Howser and Jack Howser by the United States Marshal
Service and the United States Marshal Service is DIRECTED to
serve the complaint on Defendants Angela and Jack Howser.
as Plaintiff's motion requests that the cost of service
be assessed to the Howser Defendants and that she be awarded
$700.00 in attorney's fees, her motion is DENIED WITHOUT
PREJUDICE. Plaintiff has failed to provide sufficient
evidence for the Court to award fees or assess costs of
service at this time. More specifically, while Rule 4 of the
Federal Rules of Civil Procedure indicates that the court
must impose on a defendant who fails to return a waiver the
expenses later incurred in making service and reasonable
expenses, including attorney's fees, such imposition of
costs may only occur if the waiver was not returned without
good cause. In this instance, there is insufficient evidence
to establish that the Howser Defendants' failure to waive
service was without good cause. Further, Plaintiff has failed
to substantiate her request for $700.00 in attorney's
fees. If Plaintiff again seeks costs, including
attorney's fees, associated with serving the Howser
Defendants, she is directed to provide evidence to
substantiate the costs and fees she seeks.
light of this Order, Plaintiff's Motion for Extension of
Time to Serve Defendants Angela Howser and Jack Howser (Doc.
27) is GRANTED. Plaintiff is GRANTED an extension of time, up
to and including January 13, 2017, to effect service upon
Defendants Angela Howser and Jack Howser.
to Assess Costs (Doc. 26)
motion, Plaintiff asks the Court to enter an order assessing
costs against Defendant Quick and Defendants Angela and Jack
Howser in the amount of $525.00 (11/2 hours) for
attorney's fees and $338.08 for service costs, due to
these Defendants' failure to file their waiver of service
of summons or entry of appearance “within the time
allowed by Rule.” Plaintiff's Motion is DENIED
WITHOUT PREJUDICE. Plaintiff's motion must be denied at
this time as it is not sufficiently substantiated. First,
Plaintiff has not indicated on what date the waivers were
sent to each defendant and, moreover, Plaintiff failed to
attach the waivers in support of this motion to evidence
proper service. Further, although Plaintiff indicates that
Defendants failed to file their waivers “within the
time allowed by Rule”, she failed to specifically cite
what rule she is referring to. Notably, Rule 4 of the Federal
Rules of Civil Procedure provides that defendants should be
given a “reasonable amount of time of at least 30 days
after the request was sent” to return the waiver. As it
is not clear what date the waivers were sent and when they
were directed to be returned, Plaintiff has failed to
establish that the waivers were returned out of time.
Moreover, Rule 4 only allows Plaintiff to receive expenses,
including attorney's fees, if the defendant's failure
to return the waiver was without good cause. This issue has
not been addressed by Plaintiff. Finally, Plaintiff has
failed to provide substantiation for the costs and fees she
seeks. For these reasons, Plaintiff's motion to assess
costs is DENIED WITHOUT PREJUDICE. Plaintiff is GRANTED LEAVE
to refile this motion, provided she corrects the deficiencies
pointed out in this Order.
for Pre-Judgment Attachment Order (Doc. 28)
motion, Plaintiff asks the Court to enter an order for
attachment to assert jurisdiction over the Howser Defendants,
accept the Bond filed by Plaintiff, direct that the Sheriff
of Richland and Saline counties attempt service upon the
Howser Defendants, and direct the Clerk to publish notice in
Saline and Richland counties, as provided by statute.
Plaintiffs motion is DENIED. The Court has reviewed the
authority provided by Plaintiff in her motion and finds that
it does not support a finding that attachment in this
instance is appropriate based on the evidence before the
Court. Moreover, any request for attachment is premature as
no default judgment ...