IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RYAN KELMAN, : CIVIL ACTION NO. 4:16-CV-657

:

Plaintiff : (Chief Judge Conner)

:

v. :

:

JOSE FLORES, et al., :

:

Defendant :

ORDER

AND NOW, this 16th day of August, 2016, upon consideration of the motion 

(Doc. 5) to recover costs of service by plaintiff Ryan Kelman (“Kelman”) filed July 1, 

2016, wherein Kelman requests that the court impose costs and fees on defendants 

for failure to sign and return service waiver forms, and further upon consideration 

of defendants’ answer (Doc. 15) to the court’s rule to show cause (Doc. 14) why the 

court should not impose costs and fees pursuant to Federal Rule of Civil Procedure 

4(d)(2), and it appearing that: (i) Kelman’s counsel sent a notice of lawsuit and 

request to waive service to each defendant on April 21, 2016, requesting return of 

the waivers within thirty days and apprising defendants, in accordance with Rule 

4, that “[a] defendant . . . who fails to return a signed waiver of service . . . will be 

required to pay the expenses of service, unless the defendant shows good cause for 

the failure,” (Doc. 5, Ex. A at 2, 4, 6); (ii) defendants accepted service of said notices

on April 26, 2016, (see Doc. 5 ¶ 3; Doc. 15 ¶ 2); (iii) counsel for both parties spoke via 

telephone on June 3, 2016, during which conversation defense counsel advised that, 

as of that date, he had not received authorization to waive service on defendants’

behalf, (Doc. 15 ¶ 10; see Doc. 5 ¶ 5); (iv) defendants failed to return the waivers 

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within the thirty-day time period requested by Kelman’s counsel, (Doc. 5 ¶ 6); and 

(v) Kelman’s counsel effected service on June 23, 2016, incurring costs of $179.38, 

(id. ¶¶ 6, 10; Docs. 7-9), and it further appearing that a defendant subject to service 

under Federal Rule of Civil Procedure 4(e), governing service on individuals, and 

Rule 4(h), pertaining to service on corporations, “has a duty to avoid unnecessary 

expenses of serving the summons,” FED. R. CIV. P. 4(e), (f), and that, pursuant to 

Rule 4(d)(2), when a “defendant . . . fails, without good cause, to sign and return a 

waiver requested by a plaintiff,” the court must impose upon the defendant “the 

expenses later incurred in making service” as well as “the reasonable expenses, 

including attorney’s fees, of any motion required to collect those service expenses,” 

FED. R. CIV. P. 4(d)(2), and further that findings of “sufficient cause should be rare,” 

and include, for example, exceptional instances in which “the defendant did not 

receive the request or was insufficiently literate in English to understand it,” FED.

R. CIV. P. 4, advisory committee notes (1993), and the court concluding that a delay 

in communication between defendants and their counsel does not constitute good 

cause to excuse defendants’ failure to return the service waivers, it is hereby 

ORDERED that:

1. Kelman’s motion (Doc. 5) to recover costs of service is GRANTED.

2. Defendants are ordered to reimburse Kelman in the amount of 

$179.38, the costs of effectuating formal service of the summons, and 

$500.00 in attorney’s fees pursuant to Federal Rule of Civil Procedure 

4(d)(2).

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

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