Opinion
No. 01-2092-KHV.
July 5, 2001
O R D E R
Pending before the Court are the following motions:
• Plaintiff's Request for Taxation of Service Costs (doc. 12);
• Plaintiff's Motion for Taxation of Costs for Service (doc. 21); and
• Defendants' Motion for Stay of Rule 26 Proceedings and for Protective Order (doc. 26).
For the reasons set forth below, Plaintiff's requests for taxation of costs will be denied on the merits and Defendants' request for a stay of discovery will be denied as moot.
Background
Plaintiff, a former candidate for political office, alleges Defendants denied him equal protection of the law under the Fourteenth Amendment to the United States Constitution in that the City of Merriam, Kansas removed a political campaign sign from a municipal right of way and none of the Defendants subsequently investigated the incident. At the time Plaintiff filed this lawsuit, the named Defendants in this action were the City of Merriam, Kansas ("City"), the Johnson County, Kansas Election Board ("JCEB"), Connie Schmidt, Johnson County Election Commissioner ("Schmidt"), Paul Morrison, District Attorney of Johnson County ("Morrison") and Carla Stovall, Attorney General for the State of Kansas ("Stovall"). Regarding service of the Complaint, the following chronology is relevant to the pending motions:
In a Memorandum and Order dated June 29, 2001 (doc. 38), Plaintiff's claims against the JCEB, Connie Schmidt, Paul Morrison and Carla Stovall were dismissed; thus, the only remaining Defendant in this action is the City of Merriam, Kansas.
February 23, 2001: Plaintiff serves Notice of Lawsuit and Request for Waiver of Service of Summons (form AO398) upon Michelle Daise, City of Merriam, Kansas (doc. 4).
March 14, 2001: Plaintiff serves pleading entitled "Notice of Lawsuit and Request for Waiver of Service" upon Michelle Dais, City Attorney for the City of Merriam, Kansas, Michael Garrett, County Attorney for the County of Johnson County, Kansas and Carla Stovall, Attorney General for the State of Kansas. See Plaintiff's Notice of Lawsuit and Request for Waiver of Service (doc. 10). Although Plaintiff states Form AO398 was served, there is no documentation to establish that the actual Request for Waiver of Service of Summons (form AO398) was served.
April 3, 2001: Plaintiff requests and the Clerk of the Court issues summons for Michelle Dais, City Attorney for the City of Merriam, Kansas, Michael Garrett, County Attorney for the County of Johnson County, Kansas and Carla Stovall, Attorney General for the State of Kansas. See documentation attached to Plaintiff's Notice of Proof of Service-Summons and Receipts for Taxation of Costs for Service (doc. 15).
April 4, 2001: Plaintiff serves summons by certified mail to Michelle Dais, City Attorney for the City of Merriam, Kansas, Michael Garrett, County Attorney for the County of Johnson County, Kansas and Carla Stovall, Attorney General for the State of Kansas. See documentation attached to Plaintiff's Notice of Proof of Service-Summons and Receipts for Taxation of Costs for Service (doc. 15).
Taxation of Service Costs
Pursuant to Fed.R.Civ.P. 4(d)(5), Plaintiff moves the Court to order all Defendants to pay costs associated with effecting formal service of process in this matter. Plaintiff alleges he is entitled to reimbursement of his costs because each of the Defendants refused to waive service of summons as contemplated by Fed.R.Civ.P. 4(d)(2). According to Plaintiff, he first attempted to effect service on Defendants by mailing a request to waive service pursuant to Fed.R.Civ.P. 4(d)(2). Plaintiff states none of the Defendants completed and/or returned the waiver of service and, as a result, Plaintiff subsequently was forced to effect service upon Defendants by mailing a summons to each of them. Plaintiff requests the Court award him $300.00 from each Defendant to compensate him for the labor involved in mailing the summons at issue. Plaintiff further requests the Court award him $4.50 from each Defendant to compensate him for expenses associated with mailing the summons. All told, Plaintiff seeks $1,218.00.
Plaintiff states the $4.50 expense includes mailing costs, copying costs and envelopes.
Regarding waiver of service, Fed.R.Civ.P. 4(d) states as follows:
An individual, corporation, or association that is subject to service under subdivision (e), (f), or (h) and that receives notice of an action in the manner provided in this paragraph 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.
Subdivisions (e), (f), and (h) of Rule 4 relate to service upon individuals within a judicial district of the United States, service upon individuals in a foreign country and service upon corporations and associations. By its terms, subsection (d) of Fed.R.Civ.P. 4 — the subsection regarding waiver of service — does not apply to service of process upon State or Local governments. Instead, Fed.R.Civ.P. 4(j) addresses the procedure for service of process on State and Local governments. Notably, Rule 4(j) does not have a provision for waiver of service. Therefore, Plaintiff's Motion for costs will be denied with respect to Defendant City of Merriam, Kansas.
Although the State Defendants assert that, in addition to State governments, Fed.R.Civ.P. 4(d) does not apply to State officials, the State Defendants fail to cite authority for such position. By its terms, Fed.R.Civ.P. 4(d)(2) applies to individuals and Fed.R.Civ.P. 4(j) applies to State and Local governments. The Court finds it unnecessary to determine at this time whether Fed.R.Civ.P. 4(d) applies to State officials, however, because Plaintiff is not entitled to taxation of costs for service of summons for Defendants JCEB, Schmidt, Morrison and Stovall for alternative reasons, as stated infra.
Plaintiff's request also will be denied with respect to the remaining original Defendants because Plaintiff fails to provide any documentation to support his assertion that he provided a valid request for waiver of service to such Defendants and/or allowed them sufficient time to respond to such request. As a preliminary matter, Plaintiff fails to establish that he informed Defendants JCEB, Schmidt, Morrison and Stovall, 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 and/or a prepaid means of complying with the request. See Fed.R.Civ.P. 4(d) ("notification must be by means of a text prescribed in an official form promulgated pursuant to Rule 84 "). There is a pleading entitled "Notice of Lawsuit and Request for Waiver of Service" that was filed with the Court on March 14, 2001, but it does not contain the text prescribed by Rule 84. The only evidence before the Court containing the required text is a request for waiver of service (form AO398) addressed to the city attorney for the City of Merriam, Kansas (doc. 4). Because providing such form language to each of the Defendants is necessary in order to comply with the federal rules regarding waiver of service, Plaintiff has failed to demonstrate compliance with the Rule. See Fed.R.Civ.P. 4(d).
Even if Plaintiff had provided Defendants JCEB, Schmidt, Morrison and Stovall with the necessary form language and/or a prepaid means of complying with the request, Plaintiff still would not be entitled to reimbursement for costs associated with serving summons in this matter because Plaintiff failed to allow Defendants a reasonable time to return the waiver before serving the summons. See Fed.R.Civ.P. 4(d)(2)(F) (stating the notice and request for waiver "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.") Plaintiff requested Defendants waive service of the summons on March 14, 2001 and, instead of waiting the required thirty days, served the summons only twenty (20) days later on April 4, 2001.
For these reasons, Plaintiff's Motions for Taxation of Costs will be denied.
Motion for Stay of Rule 26 Proceedings and for Protective Order Defendants in this matter request a stay from further proceedings until such time as the Court rules on the State Defendants' Motion to Dismiss. As noted, supra, the Court ruled on the referenced Motions to Dismiss in a Memorandum and Order dated June 29, 2001 (doc. 38) and Plaintiff's claims against the JCEB, Connie Schmidt, Paul Morrison and Carla Stovall were dismissed. Accordingly, the pending Motion to Stay will be denied as moot.
Conclusion
Based on the discussion above, Plaintiff's Request for Taxation of Service Costs and Motion for Taxation of Costs for Service (docs. 12 and 21) are denied on the merits and Defendants' Motion for Stay of Rule 26 Proceedings and for Protective Order is denied as moot (doc. 26).
IT IS SO ORDERED.