Sally Beauty Company, Inc. v. Nexxus Products Company, Inc.

578 F. Supp. 178, 38 Fed. R. Serv. 2d 1295, 1984 U.S. Dist. LEXIS 20814

Opinion

MEMORANDUM OPINION AND ORDER

McGARR, Chief Judge.

Plaintiff Sally Beauty Company, Inc. (“Sally”) has moved the court, pursuant to Rule 4(c)(2)(D) of the Federal Rules of Civil Procedure, for an order assessing against defendant Nexxus Products Company, Inc. (“Nexxus”) the expenses Sally incurred in obtaining service of the summons and complaint in this action upon Nexxus.

The court finds that Sally, upon the commencement of this action, served its summons and complaint upon Nexxus by mailing copies by first class certified mail, return receipt requested, to Nexxus in California, with an appropriate request for acknowledgment of service, in accordance with the rules. No acknowledgment was received. The court finds that counsel for Nexxus refused to acknowledge receipt of service unless he was granted an extension of time in which to appear.

A recent amended rule on service of process is designed to eliminate the cost and trouble of obtaining service in those circumstances where responsible defendants represented by responsible counsel can be counted upon to acknowledge receipt of service and get on with the litigation. There is no authority under the rule authorizing the imposition of a condition upon the acknowledgment of service such as the insistence upon a stipulated extension of time.

Acting in accordance with these conclusions, plaintiff obtained the appointment of a special process server and obtained service in ordinary course at the cost of $307.32.

In accordance with the motion of Sally Beauty Company, Inc. for expenses under Rule 4(c)(2)(D), defendant Nexxus Products Company, Inc. is ordered to reimburse plaintiff in the amount of $307.32 within thirty days of the date of this order.