Ilaw v. Department of Justice

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIGUEL ILAW,

Plaintiff, Civil Action No. 15-609 (CKK) v.

DEPARTMENT OF JUSTICE, et al.,

Defendants.

MEMORANDUM OPINION (July 16, 2015)

The Court is in receipt of Plaintiff’s [22] Application for Reimbursement of Service of

Process Fees by Defendant Littler Mendelson (“Littler”). Plaintiff seeks fees on the basis that

Defendant Littler failed to comply with Plaintiff’s Request to Waive Service, which Plaintiff sent

to Defendant in April 2015. Pl.’s Appl., at 2. Defendant replied to Plaintiff on April 24, 2015,

stating that “[Defendant] will not waive service of a summons in this, or in any other matter, in

which you attempt to name Littler Mendelson . . . .” Id. Plaintiff contends that he is entitled under

Federal Rule of Civil Procedure 4(d)(2) to reimbursement of the costs he subsequently incurred in

serving Defendant.

Pursuant to Federal Rule of Civil Procedure 4(d)(2)

If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant: (A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

Fed. R. Civ. P. 4(d)(2) (emphasis added). The Court afforded Defendant Littler an opportunity to

show good cause for its failure to waive service and Defendant filed an Opposition to Plaintiff’s Motion on July 9, 2015. See Def.’s Opp’n, ECF No. [31]. Plaintiff subsequently filed a Reply on

July 13, 2015. See Pl.’s Reply, ECF No. [41]. Accordingly, Plaintiff’s Application is ripe for

review.

In opposing Plaintiff’s Application, Defendant argues that it has good cause under Rule

4(d)(2) to refuse waiving service because Plaintiff has been labeled a “vexatious litigant” by

California courts and because the claims in the instant case are essentially the same claims that

were dismissed by a District Court Judge in California for failure to state a claim and labeled by

the United States Court of Appeals for the Ninth Circuit as “frivolous.” Def.’s Opp’n, at 1-2.

Plaintiff disputes that this summary of previous litigation provides good cause to refuse waiving

service of process. See Pl.’s Reply, at 5.

The Court finds that Defendant’s proffered reasons for failing to waive service do not

constitute good cause. The Advisory Committee Note on the 1993 Amendment to Federal Rule

of Civil Procedure 4(d)(2) explains that “[a] defendant failing to comply with a request for waiver

shall be given an opportunity to show good cause for the failure, but sufficient cause should be

rare. It is not a good cause for failure to waive service that the claim is unjust or that the court

lacks jurisdiction.” Fed. R. Civ. P. 4(d)(2) Advisory Cmt. Note on 1993 Amdt. (emphasis added).

Applying the Advisory Committee’s commentary, courts in other jurisdictions have regularly

found that frivolous claims do not constitute “good cause” for a defendant to fail to waive service.

See Navigators Ins. Co. v. Christian Bible Baptist Church, Inc., No. 4:13-CV-3465, 2014 WL

1689947, at *7 (S.D. Tex. Apr. 28, 2014); Marcello v. Maine, 238 F.R.D. 113, 115-116 (D. Me.

2006). Defendant does not cite to any case law—and the Court has found none—to support its

contention that a party has “good cause” to not waive service when the complainant is a vexatious

litigant or has filed frivolous claims. Accordingly, the Court finds that Defendant has not shown

2 “good cause” for failing to waive service and is required, pursuant to Rule 4(d), to reimburse

Plaintiff for “the expenses later incurred in making service” and “the reasonable expenses . . . of

any motion required to collect those service expenses.” Fed. R. Civ. P. 4(d)(2).

Plaintiff requests reimbursement of the expenses incurred in his three separate service

attempts—first on April 30, then on May 28, and finally, on June 1, 2015—amounting to a total

of $192.75. Defendant argues that if the Court decides to award Plaintiff fees, the Court should

only award Plaintiff fees for the latter two service attempts since the April 30, 2015, attempt was

defective. Def.’s Opp’n, at 4. In its July 10, 2015, Memorandum Opinion granting Defendant

Litter’s Motion to Vacate Clerk’s Entry of Default, the Court detailed its reasons for finding the

April 30, 2015, service defective, but the latter two service attempts proper. See Mem. Op. (July

10, 2015), ECF No. [39], at 7-8. The Court agrees that Plaintiff may not recover the $16.75 in fees

Plaintiff has requested for the improper service attempt on April 30, 2015. The Court finds that

Plaintiff may only recover $176 in fees incurred serving Defendant on May 28 and June 1, 2015.

Accordingly, the Court shall grant-in-part and deny-in-part Plaintiff’s [22] Application for

Reimbursement of Service of Process Fees. Defendant shall be ordered to reimburse Plaintiff

$176.00 for Plaintiff’s service of process expenses. An appropriate Order accompanies this

Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE