United States District Court, D. Arizona
A. Teiltrorg Senior United States District Judge
before the Court is Karla Solis'
(“Plaintiff”) Motion for Attorneys' Fees and
Costs Pursuant to Federal Rule of Civil Procedure 4(d)(2).
(Doc. 12). Defendant Hossam Hassan (“Defendant
Hassan”) has filed a response to Plaintiff's
motion. (Doc. 19). The Court now rules on the motion.
facts related to this motion are in dispute. Plaintiff's
counsel declares that, on August 8, 2018, a Notice of Lawsuit
and Request to Waive Service of Summons-in addition to other
documentation-was “mailed certified to Hossam
Hassan.” (Doc. 12-2 ¶ 3). Plaintiff further
declares that Defendant Hassan did not mail back and waive
service of process by September 8, 2018, and was consequently
served by a process server on September 18, 2018.
(Id. ¶ 5-6).
Hassan, however, declares that the documents in question were
never received. (Doc. 19). Defendant Hassan further declares
that notice of the motion in question was only provided
through a review of the Court docket. (Id.).
Defendant Hassan notes that Plaintiff “failed to
identify the address to which the documents were mailed or
provide any evidence that such documents were actually
delivered to [Defendant] Hassan.” (Id.)
Defendant Hassan, on this point, is correct. Despite
including numerous attachments to the Motion for
Attorneys' Fees, Plaintiff includes no evidence
indicating where the waiver was mailed. (See Doc.
12-2, Doc. 12-3, Doc. 12-4, Doc. 12-5, Doc. 12-6).
Additionally, Plaintiff includes no evidence which would
indicate that the mailing was either delivered or returned,
despite declaring that the waiver was mailed via certified
mail. (Doc. 12 ¶ 2, Doc. 12-2 ¶ 3).
evidence exists in the record which would seem to indicate
that the address which Plaintiff may have used to serve
Defendant Hassan was incorrect. On September 12, 2018, a
process server indicated that they attempted to serve
Defendant Hassan with a summons at an address in Tempe,
Arizona. (Doc. 11). The process server further indicated that
this service was unsuccessful, and that Defendant Hassan had
moved from the address in question. (Id.) The
process server subsequently, and successfully, served Hassan
at the address for Arizona Movers and Storage, Inc., in
Phoenix, Arizona. (Id.)
Federal Rules of Civil Procedure (“Rule 4”) allow
a plaintiff to notify a defendant that an action has been
commenced and request that the defendant waive service of
summons. Fed.R.Civ.P. 4(d)(1). If such a defendant fails,
without good cause, to waive service, the court may require
that said defendant pay for reasonable expenses incurred in
making service and drafting motions required to collect those
expenses. Id. at 4(d)(2). The burden to show good
cause for failing to waive service falls on the defendant.
Rollin v. Cook, 466 Fed. App'x 665, 667 (9th
does not include a definition for “good cause, ”
but the Ninth Circuit has identified that good cause, as it
relates to Rule 4, should be determined on a case-by-case
basis. In re Sheehan, 253 F.3d 507, 512 (9th Cir.
2001). “At a minimum, ‘good cause' means
excusable neglect.” Boudette v. Barnette, 923
F.2d 754, 756 (9th Cir. 1991). In identifying the presence of
excusable neglect, the court may examine four factors: (1)
danger of prejudice to the opposing party; (2) length of
delay and impact of the delay on the proceedings; (3) the
reason for said delay; and (4) whether the movant acted in
good faith. Lemoge v. United States, 587 F.3d 1188,
1192 (9th Cir. 2009) (citing Bateman v. U.S. Postal
Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000)).
district courts in the Ninth Circuit have noted that
“[t]here is good cause for failing to waive service if
the defendant never received the request for waiver of
service.” Levingston v. Piburn, No.
CV-09-8138-PCT-LOA, 2010 WL 2367206, at *1 (D. Ariz. June 10,
2010); see also Fed. R. Civ. P. 4 advisory
committee's notes to 1993 amendment (contemplating that
good cause exists where “the defendant did not receive
case, the record is unclear as to where, specifically,
Plaintiff mailed notice of the lawsuit and the request for
waiver of service. If, as it appears from other documents in
the record, Plaintiff incorrectly mailed these documents to
an address at which Defendant Hassan no longer lived,
Defendant Hassan cannot reasonably be expected to have
received notice of the documents.
to the application of the Lemoge factors to the
present case, Plaintiff would not be unfairly prejudiced if
Defendant were granted relief; in fact, requiring Defendant
to pay a fee for service due to Plaintiff's addressing
error would be unfair to Defendant. Furthermore, the length
of the delay and the reason for the delay were both
reasonable under the circumstances-if Defendant never
received the waiver, it defies logic to expect that Defendant
would ever return said waiver. Finally, absent evidence of
any bad faith on the part of Defendant (or evidence that the
waiver of service was, in fact, received by Defendant at the
address where it was sent), the Court finds that Defendant
acted in good faith. As such, Defendant has met the standard
for good cause, is it relates to Rule 4, in this case.
never receiving the request for waiver of service constitutes
sufficient cause for Defendant Hassan failing to return said
waiver. Without receipt of the waiver as required under Rule
4, it cannot be concluded that Defendant Hassan was offered
an opportunity to waive service. Absent evidence that
Plaintiff mailed the waiver to an address where Defendant
Hassan would ...