rebuffed the defendant’s complaint that plaintiff had failed to effectuate service in a more cost-
effective manner. /d. at 139.

Solo has made no attempt to show that she had good cause for failing to respond to the
two requests for waiver of summons. The Court rejects Solo’s suggestion that the absence of
proof of certified mail service requires denial of Thompson’s motion. A request for waiver of
service is to be “dispatched through first-class mail or other reliable means.” Fed. R. Civ. P.
4(d)(2)(B). See also Walton v. Lyons, 962 F. Supp. 126, 128 (C.D. Ill. 1997) (noting that waiver
of service forms may be mailed). Thus, there is no question that she must bear the $50 cost in
serving her with summons.

In addition, Solo must bear the cost of the $50 investigation fee and the $50 attempted
service fee. It is true that Thompson’s process server could have left the documents with Solo’s
husband, as he was a family member of suitable age and discretion and also likely resided at
Solo’s residence. But this was not absolutely clear from what the process server learned in her
unsuccessful attempts, and in any event plaintiff was not required to serve process in that manner
and potentially risk a future dispute over the adequacy of service. The process server continued
to attempt personal service at Solo’s residence on three more occasions and finally succeeded in
doing so at an alternate address. The process server charged the plaintiff only $100 for the
unsuccessful attempts and investigation into alternate addresses, an eminently reasonable fee.

As in Nuttall, any claim that the plaintiff did not serve Solo in the most cost-efficient
manner is unavailing. Solo clearly violated her duty under Fed. R. Civ. P. 4(d)(2) to avoid
unnecessary costs when she failed to comply with the request for waiver of service. Prior to

sending the first request for waiver of service, Thompson’s counsel’s paralegal called Solo to



incurred by the plaintiff in effectuating formal service. See Fed. R. Civ. P. 4(d)(5). Forcing non-
cooperative defendants to pay the costs of service encourages elimination of such costs. See 4A
C. Wright & A. Miller, Federal Practice and Procedure § 1092.1 (3d ed. 2002).

When a defendant fails to comply with a request for waiver of service, the plaintiff must
serve the defendant with summons. See Reavley v. Toyota Motor Sales US Corp., No. 00 C
3676, 2001 WL 127662, at *6 (N.D. Ill. Feb. 14, 2001). Under Fed. R. Civ. P. 4(c)(2), a plaintiff
may serve an individual (1) “pursuant to the law of the state in which the district court is located,
or in which service is effected,” or (2) “by delivering a copy of the summons and of the
complaint to the individual personally or by leaving copies thereof at the individual's dwelling
house or usual place of abode with some person of suitable age and discretion residing therein.”
Illinois law likewise requires summons to be served by leaving a copy of the summons with the
defendant personally, or at the defendant’s usual place of abode with a family member or other
person residing there who is at least 13 years old. 735 ILCS 5/2-203(a).

The defendant has “a duty to avoid unnecessary costs of serving the summons.” Fed. R.
Civ. P. 4(d)(2). Thus, a defendant who fails to return a waiver of service form must bear the
costs of formal service, including fees paid for unsuccessful and successful attempts at service.
See, e.g., United States v. Nuttall, 713 F. Supp. 132, 138-39 (D. Del. 1989). See also Morales v.
Si Diamond Tech., Inc., 1999 WL 144469, at *1-2 (S.D.N.Y. Mar. 15, 1999). In Nuttall, a
defendant was required to reimburse the plaintiff for fees paid to a process server for eighteen
unsuccessful attempts, as well as for wages paid to an IRS agent who eventually effectuated
personal service after waiting at the defendant’s residence for several hours. Nuttall, 713 F.

Supp. at 138. Placing the blame on the defendant for the need for formal service, the court



inform her of the lawsuit and the forthcoming waiver of service. In addition, Solo was given two
separate opportunities to cooperate with Thompson’s requests to waive formal service. And
there is at least some basis to believe that on February 16, 2004 Solo was at home and was
avoiding service. In sum, Solo was responsible for Thompson having to hire a process server in
the first place and had opportunities to avoid the imposition of those costs. It is appropriate for
her to bear all the costs incurred in effecting formal service.

Solo’s filing of an appearance form on February 13, 2004 did not negate the need for
formal service. See Lewellen v. Morley, 909 F.2d 1073, 1077 (7th Cir. 1990). In any event, due
to the fact that her certificate of service accompanying the appearance form was undated, there is
no way to say for certain when Solo sent the form to Thompson’s counsel, and in any event there
is no evidence as to when Thompson’s counsel received it.

Conclusion

For the reasons stated above, the Court grants Thompson’s motion for costs of service

[docket # 5-1]. Defendant Miriam Solo is directed to pay plaintiff's counsel $150 within seven

days of this order.

QALMla,

MATTHEW F. KENNELLY
United States District Judge

Date: June 21, 2004


Minute Oiler Forms (09197)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

Matthew F. Kennelly than Assigned Judge

CASE NUMBER 03 C 8766 DATE 6/21/2004
CASE Thompson vs. Solo
TITLE
Lin the following box (a) indicate the panty tiling the motion, ¢.g., plaintiff, delendant, 3rd party plaintiff, and (b) state brieNy the nature
MOTION: of the motion being presented.|

DOCKET ENTRY:

a oO Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due.
(3) ia) Answer brief to motion due____. Reply to answer brief due
(4) ia Ruling/Hearing on set for att
(5) oO Status hearing{held/continued to] [set for/re-set for} on set for a
6) Oo Pretrial conference{held/continued to} (set for/re-set for}on____set for al
(7) Oo Trial{sct for/re-set for] on at -
(8) o [Bencl/Jury trial] [Hearing] held/continued to at
(9) oa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)
OFRCP4(m) =O Local Rule 41.1 O FRCP41(a)(1) © FRCP41(a)(2).
ao {Other docket entry] For the reasons set forth on the attached Memorandum Opinion and Order,
the Court grants Thompson’s motion for costs of service (5-1), Defendant Miriam Solo is directed to pay
plaintiff's counsel $150 within seven days of this order.
(dl) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court Document
Number
No notices required. joumber of noes,
Notiees mailed by juddge’s stafl. WUN 8 2004
Notified counsel by telephone. y docket
Y | Docketing to mail notices,

Mail AQ 450 form,

docketing depuis
courtroom date mailed notes
a ie Ae
OR deputy's gl WY L2 HOC We
initials

ng deputy initials

in
central Clerk’ Qbtize” UI



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHARISSE THOMPSON, )

)

Plaintiff, y

)
vs. ) Case No. 03 C 8766 TEN
) g I
MIRIAM SOLO, ) DOCKE ;
) JUN 2 8 2004

Defendant. }

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Charisse Thompson moved to recover the costs of service from Miriam Solo after Solo
failed to return Thompson’s two requests for waiver of service. For the reasons stated below, the
Court grants Thompson’s motion.

Background

Thompson claims that after she filed suit, her attorney’s paralegal made phone contact
with Solo on December 4, 2003 to inform her of the lawsuit filed against her and to ask if Solo
would accept a waiver of service via fax. Thompson states that a request for waiver of service
was sent both via certified and regular mail. Counsel later noticed that his office never received
return service from the US Post Office for the certified mail. Thompson sent another request for
waiver of service to Solo. Thompson claims, and Solo does not deny, that Solo failed to respond
to either request by the stated deadlines.

After Solo failed to respond, Thompson hired a process server to effectuale service on

Solo. Based on an invoice from MJS Investigations, it appears that a process server attempted to



make contact at Solo’s residence. The process server returned and spoke to Solo’s husband, who
claimed Solo was not at home. The process server returned twice more, making no contact. On
February 16, 2004, the process server again encountered Solo’s husband, who stated that Solo
was not home. The process server noted that she heard a female voice in the background and
believed that “the subject was avoiding... . and refused to come to the door to except [sic] the
summons and complaint.” Thompson Mot., Ex. B. After February 16, 2004, Thompson had the
process server investigate possible alternate addresses. The process server served Solo
personally with a summons and complaint on February 20, 2004 at an alternate address. Per the
process server’s invoice, the total cost of service was $150: $50 for the attempted service at
Solo’s residence; $50 for the investigation; and $50 for the successful service.

Solo makes two arguments in response to Thompson’s motion. First, Solo states that she
filed an appearance and motion to dismiss on February 13, 2004 and “immediately sent notice
thereof” to Thompson; she claims there was no need for service of process and that Thompson’s
motion for costs should be denied. The Court notes that the certificate of service attached to
Solo’s motion omits the date on which the appearance and motion were served. Second, Solo
says that Thompson has not shown proof that the request for waiver of service was sent via
certified mail. Solo does not provide any reason for her failure to respond to the requests for
waiver of service.

Discussion

A plaintiff is entitled to request a waiver of formal service from an individual defendant

located in any United States judicial district. See Fed. R. Civ. P. 4(d) & (e). If the defendant

fails to comply with a waiver of service without good cause, the defendant must bear the costs