Oops, Mary:
As a final matter, plaintiff has moved for payment of costs of service pursuant to F. R. Civ. P. 4(d)(2)(C)(ii), in the amount of $ 381.98. Under Rule 4(d)(2), “if a defendant located within the United States fails to comply with a request for waiver made by a plaintiff . . . , the court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.” (emphasis added). The Committee Notes explain that this rule is intended to “impose upon the defendant those costs that could have been avoided if the defendant had cooperated reasonably in the manner prescribed,” and that the rule is a “useful” measure against “furtive” defendants. Advisory Committee Notes, 1993 Amendment.
Plaintiff originally attempted to serve the amended complaint by first class mail, return receipt requested with proper notice and acknowledgement forms enclosed. The acknowledgement was never returned, see Pl.’s June 17, 2004 Affirmation, and plaintiff was forced to proceed with personal service, the cost of which she has documented. Defendant has not offered any reasons for her failure to waive service, and any doubt as to her motivation is resolved by her Internet message to plaintiff (“Why would I make anything easy for you.”), Ex. 5 to Pl.’s Opp’n to Mot’n to Quash Summons. Accordingly, plaintiff’s Rule 4 motion is granted in the amount of $ 381.98, and defendant is directed to pay this sum. |
