Eden Foods, Inc. v. Eden's Own Products, Inc.

Full title: EDEN FOODS, INC., Plaintiff, v. EDEN'S OWN PRODUCTS, INC. and Midwest…

Court: United States District Court, E.D. Michigan, Southern Division.

Date published: Mar 19, 1984

101 F.R.D. 96 (E.D. Mich. 1984)

Opinion

Upon plaintiff's motion for costs of personal service, the District Court, Joiner, J., held that plaintiff was entitled to costs of serving both defendants personally where plaintiff properly followed the procedures for service by mail and where neither defendant responded as requested.

Motion granted.

Allen M. Krass, Krass & Young, Troy, Mich., for plaintiff.

Peter A. Davis, Ann Arbor, Mich., for defendant.

ORDER

JOINER, District Judge.

This matter is before the Court on the plaintiff's motion for costs of personal service under Fed.R.Civ.P. 4(c)(2)(D). The total cost of serving both defendants personally was $59.25.

Under the new provision of Rule 4 a plaintiff may serve a defendant

(ii) by mailing a copy of the summons and of the complaint (by first class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to form 18-A and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subparagraph (A) or (B) of this paragraph in the manner prescribed by subdivision (d)(1) or (d)(3).

The thrust of the rule is that the defendant must be personally served if no acknowledgment is received by the plaintiff within 20 days.

The only means for enforcing this inexpensive method of service is found in subparagraph (D) of subdivision (c):

Unless good cause is shown for not doing so, the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgment of receipt of summons.

Fed.R.Civ.P. 4(c)(2)(D).

The plaintiff in the present case properly followed the procedures for service by mail. Neither defendant responded as required.

The plaintiff's motion for costs of service is granted and the defendant Midwest is instructed to pay the plaintiff $33.00 and the defendant Eden's Own is instructed to pay $26.25. Payments shall be made within 10 days of the date of this order or a default will be entered against the offending defendant.

SO ORDERED.