United States District Court, S.D. Georgia, Dublin Division
K. EPPS MAGISTRATE JUDGE.
the Court is Plaintiff's Repayment Request for
Unnecessary Expenses in Service of Process. (Doc. no. 26.)
For the reasons set forth below, the Court
DENIES Plaintiff's motion.
an inmate at Johnson State Prison in Wrightsville, Georgia,
commenced this § 1983 case pro se and paid the
$400.00 filing fee. Because he was proceeding pro
se, the Court provided him with basic instructions
regarding the development and progression of this case,
including an explanation that Plaintiff is responsible for
serving each defendant and how service could be accomplished.
(Doc. no. 2, pp. 1-2.) The Court specifically informed
Plaintiff that, under Fed.R.Civ.P. 4(m), he had 90 days from
the complaint filing to accomplish service and that failure
to accomplish service could result in dismissal of individual
defendants or the entire case. (Id. at 2.)
allegedly served Dr. Wrobel with a request for waiver of
service on May 16, 2017. (Doc. no. 26, pp. 2, 5.) When no
waiver was returned, Plaintiff acquired Summons for Dr.
Wrobel from the Clerk of Court on June 28, 2017. (Doc. no.
4.) On July 31, 2017, Dr. Wrobel received a copy of the
Summons, but it did not include a copy of the Complaint or a
request to waive service. (Doc. no. 28-1, Ex. A, ¶ 3.)
August 4, 2017, the Court directed Plaintiff to show cause as
to why he had not served Defendant Wrobel within the time
allotted by Fed.R.Civ.P. 4(m). (Doc. no. 8.) Plaintiff
responded, indicating the people he had instructed to serve
Defendant Wrobel incorrectly served him only with the summons
and no complaint and asking for an extension of time to
properly serve Defendant Wrobel. (Doc. nos. 10, 12.) In the
meantime, on August 17, 2017, Dr. Wrobel filed a Motion to
Dismiss based on insufficient service of process, lack of
personal jurisdiction, and failure to file within the
applicable statute of limitations. (Doc. no. 11.) The Court
extended the time for service until October 2, 2017, and held
the Motion to Dismiss in abeyance until the extended time for
service had passed. (Doc. no. 14.)
September 1, 2017, the Clerk of Court issued a new Summons
for Dr. Wrobel. (Doc. no. 15.) On September 25, 2017, Dr.
Wrobel received a copy of the new Summons and the Complaint,
but again did not receive a request to waive service. (Doc.
no. 28-1, Ex. A, ¶ 5.) Dr. Wrobel filed his answer on
October 13, 2017. (Doc. no. 20.)
Rule of Civil Procedure 4(c), which governs service of the
complaint, states in relevant part:
(1) In General. A summons must be
served with a copy of the complaint. The plaintiff is
responsible for having the summons and complaint served
within the time allowed by Rule 4(m) and must furnish the
necessary copies to the person who makes service.
Fed. R. Civ. P. 4(c). However, in lieu of personal service, a
plaintiff may request a defendant waive service, as set forth
in Federal Rule of Civil Procedure 4(d):
(1) Requesting a Waiver. An
individual, corporation, or association that is subject to
service under Rule 4(e), (f), or (h) has a duty to avoid
unnecessary expenses of serving the summons. The plaintiff
may notify such a defendant that an action has been commenced
and request that the defendant waive service of a summons.
The notice and request must:
(A) be in writing and be addressed:
(i) to the individual defendant; or