Cage 3:17-cv-00560-MMH-JRK Document 41 Filed 12/13/2017 Page 1 of 4 Pagel 267 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION ANDREW SCOTT FULKERSON, Plaintiff, vs. Case No. 3:17-cv-560-J-34JRK GAIL S. RUSSELL, Individual and Official capacities, et al., Defendants. J ORDER This cause is before the Court on Plaintiff's Motion to Impose Sanctions Against Defendants Gordon Smith and Bradford County Sheriff's Department Pursuant to Fed. R. Civ. P. 4(d)(2)(A) (Doc. No. 23; “Motion”), filed August 11, 2017. After being ordered to respond, see Order (Doc. No. 32), Defendants Sheriff Gordon Smith ("Sheriff Smith”) (sued in both his official and individual capacities) and Bradford County Sheriff's Department (BCSD’)' on September 18, 2017 filed their Response to Plaintiff's Motion to Impose Sanctions (Doc. No. 36; “Response"). Plaintiff, proceeding pro se, moves for the entry of an Order requiring Sheriff Smith and BCSD each to reimburse Plaintiff $65.00, the cost of service of process. Motion at 1 According to Plaintiff, he attempted to have Sheriff Smith and BCSD waive service of process, but they refused to do so without good cause, necessitating the hiring of a private ‘The Court has previously recognized that ‘it appears that the proper name of the law ‘enforcement entity [Plaintiff is attempting to sue] is Bradford County Sheriff's Office" rather than the named Defendant, Bradford County Sheriff's Department. Order (Doc. No. 40), entered December 6, 2017, at 5n.6. Nevertheless, “the parties accept [Plainti's] denomination of the Defendant.” Id.oT 3:17-cv-00560-MMH-JRK Document 41 Filed 12/13/2017 Page 2 of 4 PagelD 268 Process server to accomplish service. Id. at 1-3. Plaintiff attached to the Motion invoices showing that he was charged $65.00 by “Gissen & Zawyer Process Service, Inc.” to serve each Defendant. Id. at Exs. 3-4.? Under Rule 4(d)(1), Federal Rules of Civil Procedure (“Rule(s)"), “[aln individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.” Further, “[i]f a defendant located in the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant . . . the expenses later incurred in making service.” Fed. R. Civ. P. 4(d)(2)(A), According to Sheriff Smith and BCSD, the duty to avoid unnecessary expenses of serving the summons under Rule 4(e), (f), and (h) does not apply to them because the Sheriff, in his official capacity, as well as BCSD, are subject to the service requirements set forth in Rule 4(), which applies to serving a state, local or foreign government. Response at 2. Since Rule 4()) is not incorporated in the duty to avoid service of the summons, these Defendants argue they should not be made to pay the service of process fees under Rule 4(d)(2). Response at 2. Alternatively, they ask the Court to defer any reimbursement of the cost of service “until after a final judgment is entered.” Id. 2 The retums of service filed earlier in the case indicate charges of $40.00 for each Defendant at issue in the Motion. See Returns of Service (Doc. Nos. 20, 21) ® Rule 4(e) applies to service of individuals within the United States; Rule 4(f) applies to service of individuals in foreign countries; and Rule 4(h) applies to service of corporations, partnerships, or associations.Cage 3:17-cv-00560-MMH-JRK Document 41 Filed 12/13/2017 Page 3 of 4 PagelD 269 As to BCSD, service would have to be accomplished under Rule 4(j). Accordingly, the duty to avoid service of the summons set out in Rule 4(d) does not apply to BCSD. The Motion, as it relates to this Defendant, is due to be denied * As to Sheriff Smith, even assuming he is correct that Rule 4()) would apply to service of him for claims arising from his official capacity, he does not argue that Rule 4(j) applies to service of him in his individual capacity. Indeed, it appears that service of a Sheriff in his orher individual capacity is governed by Rule 4(e). See Johnson v. Ofsack, No. CIV-07-211- M, 2008 WL 320026, at *9 (W.D. Okl. Feb. 4, 2008) (discussing service of process with respect to a Sheriffin his individual capacity pursuant to Rule 4(e)); see also Melton v. Wi ley, 262 F. App’x 924, 923 (11th Cir. 2008) (discussing that service of a deputy sheriff sued in his individual capacity is made pursuant to Rule 4(e)). Accordingly, Sheriff Smith had a duty to avoid service of the summons with respect to claims made in his individual capacity. See * Fed R. Civ. P. 4(d). His election not to do so and failure to argue or demonstrate any good cause for the failure compels the result that he must pay the $65.00 service of process fee.” See Fed. R. Civ. P. 4(d)(2)(A); Butler v. Crosby, No. 3:04-cv-917-J-32MMH, 2005 WL 3970740, at *4 (M.D. Fla. Apr. 21, 2006) (finding that the defendants “ailed to establish good cause for their failure to waive formal service” when, among other things, they “dfid] not cite any ambiguity in the rule that would call into question the Rule's application to them”) * ___The undersigned notes that after the Response was filed, the Court entered an Order dismissing Bradford County Sheriff's Department as a party to this matter because itis not an entity that is subject to being sued given the facts alleged by Plaintif. See Order (Doc. No. 40), entered December 6, 2017, * Sheriff Smith does not challenge the reasonableness of the fee. See Response. Further, although Plaintif attached a document to the Motion that could suggest the Sheriff's Office was confused about Plaintiff's attempt to waive service, see Motion at Ex. 2, Sheriff Smith does not contend in the Response that there was any confusion. Rather, he rests solely on the premise that the waiver rule does not apply to him in his official capacity. See Response, aa 3:17-cv-00560-MMH-JRK Document 41 Filed 12/13/2017 Page 4 of 4 PagelD 270 Further, Sheriff Smith cites no authority and points to no circumstance to support his alternative request that the Court defer imposing the $65.00 service fee until after final judgment; that request is due to be denied. See Butler, 2005 WL 3970740, at *4 (finding that a motion for reimbursement of service fees made prior to final judgment was not premature). After due consideration, it is ORDERED: 1. Plaintiff's Motion to Impose Sanctions Against Defendants Gordon Smith and Bradford County Sheriffs Department Pursuant to Fed. R. Civ. P. 4(d)(2)(A) (Doc. No. 23) is GRANTED in part and DENIED in part, 2. The Motion is GRANTED to the extent that only Sheriff Smith, no later than December 29, 2017, must reimburse Plaintiff for the $65.00 service of process fee. 3. __Inall other respects, the Motion is DENIED. DONE AND ORDERED at Jacksonville, Florida on December 13, 2017. JAMES R. KLINDT Inited States Magistrate Judge kaw Copies to: Counsel of Record E1o se party