1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Vernon Peltz, et al., No. CV-23-00094-TUC-RCC
10 Plaintiffs, ORDER
11 v.
12 Kyle Bryson, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff Vernon Peltz's ("Mr. Peltz") pro se Motion 16 for an Order Requiring Defendant Bryson to Pay for Service. (Doc. 23.) This matter has 17 been fully briefed. (Docs. 23, 30, 32.) As fully explained below, the Court will deny the 18 Motion. 19 I. Background 20 On February 27, 2023, Mr. Peltz and other Plaintiffs filed a Prisoner Civil Rights 21 Complaint against several Defendants including the Honorable Kyle Bryson, Presiding 22 Judge of the Pima County Superior Court ("Judge Bryson"). (Doc. 1.) Pursuant to Federal 23 Rule of Civil Procedure 4, Mr. Peltz sent Judge Bryson a voluntary waiver of service 24 form before the time for service of process had expired. (Doc. 23 at 1.) 25 On March 14, 2023, counsel for Judge Bryson sent Mr. Peltz an email saying, 26 "Plaintiffs seemingly signed the waiver and filed it for Defendant Bryson, which is not 27 allowed. We will be filing a waiver today and correcting the defect in the one filed by 28 Plaintiffs." (Doc. 30-1 at 3.) That day, Judge Bryson's counsel filed a waiver of service on 1 the docket stating in a footnote that Mr. Peltz had incorrectly signed the waiver form in 2 Judge Bryson's place, thus requiring him to file a newly drafted document. (Doc. 6.) The 3 following day, Judge Bryson filed a Notice of Errata acknowledging that counsel had 4 made a mistake—Mr. Peltz had not signed the waiver form in Judge Bryson's place. 5 (Doc. 11.) Instead, he had signed a written Request for a Waiver that counsel mistook for 6 the waiver form. (Id.) 7 On March 15, 2023, Mr. Peltz responded to the previous day's email saying that he 8 had not signed a waiver nor had he "filed anything since filing the complaint." (Doc. 30-1 9 at 3.) He then stated, "Therefore I do not know what you are talking about. I assume that 10 you will send a copy of the waiver you file." (Id.) 11 Judge Bryson did not mail Mr. Peltz a copy of the waiver he filed on the docket. 12 (Doc. 30 at 2–3.) Counsel for Judge Bryson explains that her staff was new and sent Mr. 13 Peltz an email after the waiver was filed asking if he wished to have pleadings mailed to 14 him or served electronically. (Id. at 3.) Mr. Peltz apparently did not respond to this email. (Id.) 15 On April 17, 2023, Mr. Peltz had Judge Bryson personally served with a summons 16 and a copy of the complaint via process server and paid the $68.00 fee. (Doc. 23 at 2–3.) 17 Counsel for Judge Bryson avers that she learned on April 27, 2023—via email 18 from Mr. Peltz—that Mr. Peltz never received a conformed copy of the filed waiver. 19 (Doc. 30 at 3.) She then "sent all pleadings filed by Defendant Bryson to each Plaintiff by 20 e-mail and at the address listed in the Complaint and Amended Complaint." (Id.) 21 On April 27, 2023, Mr. Peltz filed the present motion seeking to recover the 22 process server fee. (Doc. 23.) He argues that Judge Bryson's failure to file the voluntary 23 waiver form that Mr. Peltz sent within 30 days required Mr. Peltz to pay for a process 24 server. (Id. at 1.) Under Federal Rule of Civil Procedure 4, Mr. Peltz asserts, he is entitled 25 to repayment of the $68 fee from Judge Bryson. (Id.) 26 Judge Bryson opposes the motion because Mr. Peltz was on notice that he would 27 be filing a waiver on the docket, and he indeed filed the waiver the same day he emailed 28 Mr. Peltz. (Doc. 30 at 3.) He further argues that Mr. Peltz did not inquire further or check 1 the docket to determine if any such waiver had been filed. (Id.) Instead, Mr. Peltz 2 unnecessarily paid to have Judge Bryson personally served when service had already 3 been completed via the filed waiver on March 14, 2023. (Id.) 4 In reply, Mr. Peltz argues that Judge Bryson should nonetheless be required to 5 repay the fee because counsel's email "was only evidence of her intention and not actual 6 notice of anything . . . . Attorney Sanders should have to pay because she failed to follow 7 the simple rules and has not shown good cause for that failure." (Doc. 32 at 1.) 8 II. Standard of Review 9 The Federal Rules of Civil Procedure require a plaintiff to serve the summons and 10 a copy of the complaint on a defendant within 90 days of filing the complaint. Fed. R. 11 Civ. P. (4)(c), (m). A defendant "has a duty to avoid unnecessary expenses of serving the 12 summons. The plaintiff may notify such a defendant that an action has been commenced 13 and request that the defendant waive service of a summons." Fed. R. Civ. P. 4(d)(1). Rule 14 4 further provides: If a defendant located within the United States fails, 15 without good cause, to sign and return a waiver requested by 16 a plaintiff located within the United States, the court must impose on the defendant the expenses later incurred in 17 making service and the reasonable expenses, including 18 attorney's fees, of any motion required to collect those service expenses. 19
20 Fed. R. Civ. P. 4(d)(2)(A)–(B) (emphasis added). 21 Therefore, "a defendant may waive formal service of process by executing a 22 waiver of process and returning the waiver to plaintiff." Fisher v. Lynch, 531 F. Supp. 2d 23 1253, 1269 n. 11 (D. Kan. 2008) (citing Fed. R. Civ. P. 4). "Compliance with the waiver 24 provision requires that the waiver be executed by the defendant, returned to the plaintiff, 25 and filed by the plaintiff with the court." Id. (quoting Bernard v. Husky Truck Stop, 45 26 F.3d 439, 1995 WL 4087, at *1 (10th Cir. Jan. 6, 1995) (unpublished table decision)). 27 /// /// 28 1 III. Discussion 2 The Court finds that Judge Bryson, through his counsel, failed to comply with 3 Rule 4 by filing a waiver on the docket. Rule 4 does require the defendant to return the 4 waiver to the plaintiff so the plaintiff—whose burden it is to effectuate service—may file 5 the waiver with the Court. 6 However, the Court will not require Judge Bryson to pay the service fee because it 7 believes he has shown good cause for failing to return the waiver. First, counsel 8 immediately filed a Notice of Errata acknowledging that the reason Judge Bryson filed a 9 different waiver (believing Mr. Peltz incorrectly signed the waiver) was a mistake. 10 Second, counsel notified Mr. Peltz that she would be filing a waiver and in fact did so 11 that same day. A copy should have been mailed to Mr. Peltz. However, although Mr. 12 Peltz only knew about her "intent" to file, he knew enough to inquire further before 13 paying for service. In fact, he said himself that he was expecting to receive a copy of any 14 waiver that was filed. Even if Mr. Peltz did not check the docket himself, a follow up call or email to Judge Bryson's counsel would have been appropriate when he did not receive 15 any such waiver. 16 IV. Other Matters 17 In his Response, Judge Bryson includes argument regarding Plaintiff Patrick 18 Gonzalez's potential failure to file a notice of change of address. (Doc. 30 at 4.) As this is 19 not the issue presented by this Motion, there has been no briefing from Plaintiff Gonzalez 20 on the matter.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Vernon Peltz, et al., No. CV-23-00094-TUC-RCC
10 Plaintiffs, ORDER
11 v.
12 Kyle Bryson, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff Vernon Peltz's ("Mr. Peltz") pro se Motion 16 for an Order Requiring Defendant Bryson to Pay for Service. (Doc. 23.) This matter has 17 been fully briefed. (Docs. 23, 30, 32.) As fully explained below, the Court will deny the 18 Motion. 19 I. Background 20 On February 27, 2023, Mr. Peltz and other Plaintiffs filed a Prisoner Civil Rights 21 Complaint against several Defendants including the Honorable Kyle Bryson, Presiding 22 Judge of the Pima County Superior Court ("Judge Bryson"). (Doc. 1.) Pursuant to Federal 23 Rule of Civil Procedure 4, Mr. Peltz sent Judge Bryson a voluntary waiver of service 24 form before the time for service of process had expired. (Doc. 23 at 1.) 25 On March 14, 2023, counsel for Judge Bryson sent Mr. Peltz an email saying, 26 "Plaintiffs seemingly signed the waiver and filed it for Defendant Bryson, which is not 27 allowed. We will be filing a waiver today and correcting the defect in the one filed by 28 Plaintiffs." (Doc. 30-1 at 3.) That day, Judge Bryson's counsel filed a waiver of service on 1 the docket stating in a footnote that Mr. Peltz had incorrectly signed the waiver form in 2 Judge Bryson's place, thus requiring him to file a newly drafted document. (Doc. 6.) The 3 following day, Judge Bryson filed a Notice of Errata acknowledging that counsel had 4 made a mistake—Mr. Peltz had not signed the waiver form in Judge Bryson's place. 5 (Doc. 11.) Instead, he had signed a written Request for a Waiver that counsel mistook for 6 the waiver form. (Id.) 7 On March 15, 2023, Mr. Peltz responded to the previous day's email saying that he 8 had not signed a waiver nor had he "filed anything since filing the complaint." (Doc. 30-1 9 at 3.) He then stated, "Therefore I do not know what you are talking about. I assume that 10 you will send a copy of the waiver you file." (Id.) 11 Judge Bryson did not mail Mr. Peltz a copy of the waiver he filed on the docket. 12 (Doc. 30 at 2–3.) Counsel for Judge Bryson explains that her staff was new and sent Mr. 13 Peltz an email after the waiver was filed asking if he wished to have pleadings mailed to 14 him or served electronically. (Id. at 3.) Mr. Peltz apparently did not respond to this email. (Id.) 15 On April 17, 2023, Mr. Peltz had Judge Bryson personally served with a summons 16 and a copy of the complaint via process server and paid the $68.00 fee. (Doc. 23 at 2–3.) 17 Counsel for Judge Bryson avers that she learned on April 27, 2023—via email 18 from Mr. Peltz—that Mr. Peltz never received a conformed copy of the filed waiver. 19 (Doc. 30 at 3.) She then "sent all pleadings filed by Defendant Bryson to each Plaintiff by 20 e-mail and at the address listed in the Complaint and Amended Complaint." (Id.) 21 On April 27, 2023, Mr. Peltz filed the present motion seeking to recover the 22 process server fee. (Doc. 23.) He argues that Judge Bryson's failure to file the voluntary 23 waiver form that Mr. Peltz sent within 30 days required Mr. Peltz to pay for a process 24 server. (Id. at 1.) Under Federal Rule of Civil Procedure 4, Mr. Peltz asserts, he is entitled 25 to repayment of the $68 fee from Judge Bryson. (Id.) 26 Judge Bryson opposes the motion because Mr. Peltz was on notice that he would 27 be filing a waiver on the docket, and he indeed filed the waiver the same day he emailed 28 Mr. Peltz. (Doc. 30 at 3.) He further argues that Mr. Peltz did not inquire further or check 1 the docket to determine if any such waiver had been filed. (Id.) Instead, Mr. Peltz 2 unnecessarily paid to have Judge Bryson personally served when service had already 3 been completed via the filed waiver on March 14, 2023. (Id.) 4 In reply, Mr. Peltz argues that Judge Bryson should nonetheless be required to 5 repay the fee because counsel's email "was only evidence of her intention and not actual 6 notice of anything . . . . Attorney Sanders should have to pay because she failed to follow 7 the simple rules and has not shown good cause for that failure." (Doc. 32 at 1.) 8 II. Standard of Review 9 The Federal Rules of Civil Procedure require a plaintiff to serve the summons and 10 a copy of the complaint on a defendant within 90 days of filing the complaint. Fed. R. 11 Civ. P. (4)(c), (m). A defendant "has a duty to avoid unnecessary expenses of serving the 12 summons. The plaintiff may notify such a defendant that an action has been commenced 13 and request that the defendant waive service of a summons." Fed. R. Civ. P. 4(d)(1). Rule 14 4 further provides: If a defendant located within the United States fails, 15 without good cause, to sign and return a waiver requested by 16 a plaintiff located within the United States, the court must impose on the defendant the expenses later incurred in 17 making service and the reasonable expenses, including 18 attorney's fees, of any motion required to collect those service expenses. 19
20 Fed. R. Civ. P. 4(d)(2)(A)–(B) (emphasis added). 21 Therefore, "a defendant may waive formal service of process by executing a 22 waiver of process and returning the waiver to plaintiff." Fisher v. Lynch, 531 F. Supp. 2d 23 1253, 1269 n. 11 (D. Kan. 2008) (citing Fed. R. Civ. P. 4). "Compliance with the waiver 24 provision requires that the waiver be executed by the defendant, returned to the plaintiff, 25 and filed by the plaintiff with the court." Id. (quoting Bernard v. Husky Truck Stop, 45 26 F.3d 439, 1995 WL 4087, at *1 (10th Cir. Jan. 6, 1995) (unpublished table decision)). 27 /// /// 28 1 III. Discussion 2 The Court finds that Judge Bryson, through his counsel, failed to comply with 3 Rule 4 by filing a waiver on the docket. Rule 4 does require the defendant to return the 4 waiver to the plaintiff so the plaintiff—whose burden it is to effectuate service—may file 5 the waiver with the Court. 6 However, the Court will not require Judge Bryson to pay the service fee because it 7 believes he has shown good cause for failing to return the waiver. First, counsel 8 immediately filed a Notice of Errata acknowledging that the reason Judge Bryson filed a 9 different waiver (believing Mr. Peltz incorrectly signed the waiver) was a mistake. 10 Second, counsel notified Mr. Peltz that she would be filing a waiver and in fact did so 11 that same day. A copy should have been mailed to Mr. Peltz. However, although Mr. 12 Peltz only knew about her "intent" to file, he knew enough to inquire further before 13 paying for service. In fact, he said himself that he was expecting to receive a copy of any 14 waiver that was filed. Even if Mr. Peltz did not check the docket himself, a follow up call or email to Judge Bryson's counsel would have been appropriate when he did not receive 15 any such waiver. 16 IV. Other Matters 17 In his Response, Judge Bryson includes argument regarding Plaintiff Patrick 18 Gonzalez's potential failure to file a notice of change of address. (Doc. 30 at 4.) As this is 19 not the issue presented by this Motion, there has been no briefing from Plaintiff Gonzalez 20 on the matter. Therefore, the Court is not sure what action Judge Bryson seeks with this 21 argument and will not take any action except to remind all Plaintiffs that, pursuant to 22 Local Rule of Civil Procedure 83.3(c)(1) and (d), they must file a notice of a name or 23 address change no later than fourteen (14) days before the effective date of the change. It 24 goes without saying that the address provided must be accurate. It would serve no 25 purpose if opposing counsel or the Court cannot effectively send mail to Plaintiffs at the 26 listed address. 27 Finally, the Court is loath to police language used by the parties in their pleadings, 28 let alone in their correspondence with one another. However, having read the pleadings 1) and attached exhibits, the Court will urge all parties to remain civil in their 2|| communication. The Court has no interest in reading name-calling or bickering in any 3|| document the parties file. 4 V. Conclusion 5 Accordingly, 6 IT IS ORDERED that Plaintiff's Motion is DENIED. (Doc. 23.) 7 Dated this 7th day of August, 2023. 8 9 10 fl Dp ll □ f KW Cabl.— Honorable Raner ©. Collins 12 Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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