FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM DARULIS, Estate of; MARK 

DARULIS, in representative

capacity,

Plaintiffs-Appellants, No. 03-16580

v. D.C. No.

GARATE, San Francisco Police  CV-02-02194-VRW

Officer # 902; SMITH, - #1531; OPINION LEACH, Lieutenant #614; CITY AND

COUNTY OF SAN FRANCISCO, District

Attorney’s Family Support Bureau,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, District Judge, Presiding

Submitted February 11, 2005*

San Francisco, California

Filed March 22, 2005

Before: J. Clifford Wallace, Johnnie B. Rawlinson, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Wallace

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

3497
COUNSEL

Mark Darulis, plaintiff-appellant, pro se, Millbrae, California.

Brian Gearinger, Deputy City Attorney, San Francisco, California, for the defendants-appellees. 

OPINION

WALLACE, Senior Circuit Judge:

Mark Darulis, representing his deceased father, William

Darulis, appeals pro se from the district court’s judgment of

dismissal of this diversity action. Darulis also challenges the

district court’s order denying his motion for costs of service

of process pursuant to Federal Rule of Civil Procedure 4(d).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm the dismissal but reverse the denial of Darulis’ motion

for costs and remand for an award of costs. 

I.

On January 21, 2000, Darulis, a resident of California, was

arrested by a member of the San Francisco Police Department

and subsequently incarcerated. He contends that as a result,

his father, an Ohio resident, “became distressed, which led to

a heart attack” and his eventual death on May 8, 2000. 

Darulis submitted the required government tort claim to the

City and County of San Francisco on July 19, 2000, which

was rejected on September 14, 2000. On March 12, 2001,

Darulis filed a wrongful death complaint in the San Francisco

Superior Court, but later abandoned this action. Over a year

later, on May 7, 2002, he filed a complaint in the United

States District Court for the Northern District of California

which, after being amended twice, asserted a tort claim for the

3500 DARULIS v. GARATE
“pre-death suffering” of his father. He contends that by

unlawfully arresting him, the defendants negligently breached

a duty of care they owed to his father. Darulis also alleges that

he repeatedly mailed the individual defendants notice of the

lawsuit and requests for waiver of service of process. After

they failed to respond, he paid $90 to the San Francisco Sheriff to effectuate service on them.

II.

The district court applied the six-month limitations period

provided by California Government Code §§ 945.6 and 950.6,

rather than Ohio’s two-year statute of limitations. See OHIO

REV. CODE ANN. § 2305.10. Because the six-month period

began to run in September of 2000, and Darulis did not file

his federal complaint until May of 2002, the district court

granted the defendants’ motion to dismiss Darulis’ complaint

as untimely. See FED. R. CIV. P. 12(b)(6). Darulis does not

argue on appeal that the statute of limitations should have

been tolled, or that he timely filed within California’s limitations period; rather, he challenges the district court’s choiceof-law determination. We review this conclusion de novo. See

Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484

(9th Cir. 1987). 

[1] “It is well-settled that in diversity cases federal courts

must apply the choice-of-law rules of the forum state.” Id. In

California, courts apply a three-part governmental interest

test. Arno v. Club Med Inc., 22 F.3d 1464, 1467 (9th Cir.

1994). First, we must assess whether the foreign state law

actually differs from the law of California. Id. If so, we then

consider each state’s interest in having its own law applied to

this case to determine whether there is a “true conflict”

between their interests. Id. Finally, if each state has a legitimate interest, we compare the extent to which each state’s

interests will be impaired if the other state’s law is applied. Id.

[2] Applying this test, the district court properly concluded

that California’s six-month limitations period should govern.

DARULIS v. GARATE 3501
Both California and Ohio have an interest in preserving tort

claims for a reasonable length of time, and both states generally provide a two-year limitations period. See CAL. GOV’T

CODE § 945.6(a)(2); OHIO REV. CODE ANN. § 2305.10. California, however, imposes a six-month period here because the

public-entity defendant issued Darulis a written rejection

notice which specifically warned him that a shortened limitations period would apply. See CAL. GOV’T CODE §§ 913,

945.6(a)(1). Just as this special warning exception is consistent with California’s interest in providing a reasonable limitations period, so too is it consistent with Ohio’s interest.

Ohio’s interest was further satisfied when Darulis was able to

file a wrongful death complaint in the San Francisco Superior

Court within the allowed six months. 

[3] There is thus no “true conflict” between California and

Ohio interests. Moreover, even if there was such a true conflict, the third step of the choice-of-law analysis also supports

the district court’s decision to apply California law. Ohio has

a relatively slight connection with this case. Any interest it

may have in preserving a full two-year period is outweighed

by California’s interest in regulating tort actions brought

against its public officials based on conduct which occurred

within its borders. Cf. Orr v. Bank of Am., 285 F.3d 764, 772

& n.4 (9th Cir. 2002) (California had little interest in having

its law applied where alleged torts occurred in Nevada, plaintiff was a resident of Nevada, and the defendant bank’s

branch was located in Nevada). 

III.

Darulis contends that because the defendants failed to

waive service of process, he is entitled to an award of the

costs he incurred in effecting service on the defendants. We

review the district court’s denial of costs for an abuse of discretion. Miles v. California, 320 F.3d 986, 988 (9th Cir.

2003). “If an exercise of discretion is based on an erroneous

interpretation of the law, the ruling should be overturned.” Id.

3502 DARULIS v. GARATE
[4] Federal Rule of Civil Procedure 4(d)(2) provides:

If a defendant located within the United States fails

to comply with a request for waiver made by a plaintiff located within the United States, the court shall

impose the costs subsequently incurred in effecting

service on the defendant unless good cause for the

failure be shown. 

[5] Federal Rule of Civil Procedure 4(d)(5) clarifies the

costs to be awarded pursuant to Rule 4(d)(2):

The costs to be imposed on a defendant under paragraph (2) for failure to comply with a request to

waive service of a summons shall include the costs

subsequently incurred in effecting service . . .

together with the costs, including a reasonable attorney’s fee, of any motion required to collect the costs

of service. 

The defendants do not contest Darulis’ assertion that they

did not respond to his waiver requests, nor do they suggest

Darulis’ requests did not satisfy the requirements of Rule

4(d)(2) or that they had good cause for failing to respond.

Rather, they argue — and the district court held — that

because they are the prevailing party, they are entitled to costs

pursuant to Rule 54(d)(1), including any costs they would otherwise have to pay Darulis pursuant to Rule 4(d)(2). See FED.

R. CIV. P. 54(d)(1) (“Except when express provision therefor

is made either in a statute of the United States or in these

rules, costs other than attorneys’ fees shall be allowed as of

course to the prevailing party unless the court otherwise

directs . . . .”). 

[6] We disagree with the district court’s interpretation of

the interplay between Rules 4(d)(2) and 54(d)(1). Rule 4(d)(2)

is a free-standing cost provision, whereas Rule 54(d)(1) specifically states that it applies except when another federal rule

DARULIS v. GARATE 3503
expressly governs. Furthermore, the purpose of Rule 4(d) is

“to eliminate the costs of service of a summons on many parties and to foster cooperation among adversaries and counsel.” FED. R. CIV. P. 4(d) Advisory Committee note on 1993

amendments. To underscore this policy, Rule 4(d)(2) imposes

a duty to avoid unnecessary costs of service. See FED. R. CIV.

P. 4(d)(2) (“An individual, corporation, or association that is

subject to service . . . and that receives notice of an action . . .

has a duty to avoid unnecessary costs of serving the summons.”). This policy can be promoted regardless of which

party eventually prevails on the merits, and indeed, it would

be undermined if a defendant who creates unnecessary costs

can gamble that he or she will be able to sidestep Rule 4(d)(2)

via Rule 54(d)(1). Cf. Troxell v. Fedders of N. Am., Inc., 160

F.3d 381, 383 (7th Cir. 1998) (“[A] defendant . . . that wants

to stand on formalities, for whatever reason, is entitled to do

so, as long as it is willing to pay for the privilege.”). 

In addition, the Advisory Committee has remarked:

A defendant failing to comply with a request for a

waiver shall be given an opportunity to show good

cause for the failure, but sufficient cause should be

rare. It is not good cause for failure to waive service

that the claim is unjust or that the court lacks jurisdiction. 

FED. R. CIV. P. 4(d)(2) Advisory Committee note on 1993

amendment (emphasis added). This strongly suggests the

Committee did not intend to curtail application of Rule

4(d)(2) where a defendant was subject to an ultimately unsuccessful claim. 

[7] In light of the express language of Rules 4(d)(2) and

54(d)(1), as well as the indications of the Advisory Committee’s intent, we hold the district court abused its discretion in

denying Darulis an award of costs for service of process. Rule

3504 DARULIS v. GARATE
4(d)(2) provides for an award of such costs regardless of

which party can recover other costs pursuant to Rule 54(d)(1).

The district court’s judgment of dismissal is AFFIRMED;

the district court’s denial of costs pursuant to Rule 4(d)(2) is

REVERSED AND REMANDED for an award of costs. Costs

on appeal are awarded to Darulis. 

DARULIS v. GARATE 3505