United States District Court, C.D. Illinois
MARTHA L. KILLION, Plaintiff,
TOM SKEETERS, DBA TOMS 24 HOUR TOWING SERVICE, AND DONNA BLOODWORTH, Defendants.
ORDER AND OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE
cause is before the Court on Defendants' Motion for
Reconsideration (d/e 21) and Supplemental Motion for
Reconsideration (d/e 28) of the Court's January 4, 2018,
order granting costs of service and attorney's fees to
Plaintiff. Defendants' Motions (d/e 21, 28) are GRANTED.
The Court VACATES its previous order granting costs of
service and attorney's fees to Plaintiff (d/e 15, §
filed the Complaint on August 18, 2017. On August 21, 2017,
Plaintiff's attorney mailed requests for waiver of
service to each of Defendants in compliance with Federal Rule
of Civil Procedure 4. See Pl.'s Motion for Costs
of Service and Attorney's Fees, Ex. 1, Decl. of Attorney
James Devine ¶ 2 (d/e 14-1). On October 5, 2017,
Defendants' attorney at that time, Charles Watson, filed
his notice of appearance and a motion for an extension of
time to file a responsive pleading to the Complaint. On
November 15, 2017, Attorney Watson passed away, notice of
which was provided to the Court on January 10, 2018 (d/e 16).
Neither of the Defendants, nor their attorney, ever returned
a signed waiver to Plaintiff.
January 4, 2018, the Court entered an order that granted
Plaintiff's Motion for Costs of Service and
Attorneys' Fees and ordered Defendant Skeeters to pay
Plaintiff $160 and Defendant Bloodworth to pay Plaintiff
$185. On March 1, 2018, Defendants' current attorney,
Raylene DeWitte Grischow, filed her notice of appearance.
April 23, 2018, Defendants filed a Motion for Reconsideration
(d/e 21) of the Court's grant of costs and fees of
service. Defendants asserted that they failed to respond to
Plaintiff's motion because Attorney Watson had passed
away one week after Plaintiff filed the motion. In its text
order of May 10, 2018, the Court noted that the Motion for
Reconsideration established good cause for Defendants'
failure to respond to the motion for costs and fees but
proffered no evidence to support good cause for
Defendants' failure to return the waivers of service. In
response, Defendants filed their Supplemental Motion for
Reconsideration (d/e 28). Plaintiff then responded to the
Supplemental Motion (d/e 29).
4(d) establishes a procedure for a plaintiff to avoid the
costs of personal service by providing the defendant with
written notice of the commencement of the action and a
request that the defendant waive service of the summons. The
notice and request must meet the requirements set forth by
the rule, including that it: (1) be in writing; (2) inform
the defendant of the consequences of waiving and not waiving
service; (3) state the date that the request was sent; (4)
give the defendant a reasonable amount of time and at least
30 days after the request was sent to return the waiver; and
(5) be sent by first-class mail or other reliable means.
Fed.R.Civ.P. 4(d)(1). If the defendant fails to sign and
return the waiver “without good cause, ” the
court must impose on the defendant the expenses the plaintiff
later incurs in making service and the reasonable expenses,
including attorney's fees, of any motion required to
collect those expenses. Fed.R.Civ.P. 4(d)(2).
their Supplemental Motion, Defendants explain that neither
they nor Attorney Grischow know why Attorney Watson did not
return the waivers. Attorney Grischow surmises that Attorney
Watson assumed that he did not need to return the waivers
because he filed his notice of appearance and a motion for
extension of time to respond to the Complaint on October 5,
2017. Defendants speculate that “Watson did not feel
the waivers needed to be filed with the court since he had
already entered his appearance.” Supp'l Motion
notion is questionable. Plaintiff's attorney mailed the
waiver requests on August 21, 2017-a month and a half before
Attorney Watson first appeared in the case. See
Decl. of Attorney Devine ¶ 2. Such a delay undermines a
conclusion that Attorney Watson did not think that he needed
to return the August-dated waivers when he did not appear in
the case until October.
because Attorney Watson had not yet appeared at the time that
Plaintiff's attorney mailed the waiver requests,
Plaintiff's attorney mailed them to Defendants directly.
Defendants did not know that they needed to return the
waivers. They believed that because they had retained
Attorney Watson, he would handle all matters going forward in
the litigation. Supp'l Motion ¶ 7.
learned that: (1) Defendants did not respond to the motion
for costs and fees because their attorney passed away just
one week later; (2) that Defendants received the requests for
waiver directly because their attorney did not appear in the
case until a month and a half after the Complaint was filed
and the waiver requests were mailed; and (3) that Attorney
Watson did not inform Defendants of their obligation to sign
and return the waivers, the Court finds that Defendants have
shown good cause for their failure to return the waivers.
Therefore, reconsideration of the Court's order granting
Plaintiff the costs of service and attorney's fees is