Scott v. California Department of Corrections and Rehabilitation
- Haywood Gilliam
- 4:19-cv-06046
- U.S. District Court · Northern District of California
- 3
In Scott v. Golding, Judge Gilliam denied requests for the Marshal to complete or arrange service on Golding and Kumar.
Donnie Scott’s requests were denied. Eric Golding was treated as served and appeared in the action; Kumar remained the defendant whose service had not been shown. The United States Marshal was not ordered to request a service waiver from Kumar or to take additional action beyond the existing service order.
What happened
In Scott v. California Department of Corrections and Rehabilitation, Donnie Scott asked the court to direct the United States Marshal to handle service of the lawsuit on defendants Eric Golding and Kumar. Scott argued that Golding and Kumar had accepted service in another case and that their lawyer had waived service problems.
The court found that Golding had already accepted service and appeared in this case, but that nothing showed Kumar had been served or that the lawyer represented Kumar. The court also explained that service in a different case did not serve the defendants in this case, and that the Marshal was not required to ask Kumar to waive service.
Judge Haywood S. Gilliam, Jr. denied as moot the request to serve Golding, denied the request for the Marshal to ask Kumar to waive service, and denied the request for the Marshal to serve Kumar. The court said it had already ordered the Marshal to serve Kumar and could not determine the reason for the delay until the Marshal filed the summons.
The detailed version
- Scott v. California Department of Corrections and Rehabilitation · No. 4:19-cv-06046
- Haywood Gilliam
- Mar. 19, 2020
Background
Donnie Scott asked the court to order the United States Marshal to complete service on defendants Kumar and Eric Golding. Scott said that California Deputy Attorney General Wilfred Fong had filed a waiver of reply indicating that the defendants waived defects in service. Scott also said he believed Golding and Kumar had previously accepted service in a separate case at Pelican Bay State Prison.
Court’s analysis
The court found that only Golding had appeared in this action. Fong appeared for Golding on January 29, 2020, and filed a waiver of reply and a jury-trial demand. The court treated those filings as Golding’s acknowledgment that he had accepted service, even though the executed summons had not yet been filed. Nothing in the record showed that Kumar had been served, that Kumar had filed anything in the case, or that Fong represented Kumar. The waiver of reply therefore applied only to Golding.
The court explained that a plaintiff must serve the complaint and summons under Rule 4 of the Federal Rules of Civil Procedure. Acceptance of service in a separate lawsuit did not constitute service in this action. Although the court must order the Marshal to serve the summons and complaint for a plaintiff who is incarcerated and proceeding without paying the filing costs, Rule 4 does not require the Marshal to ask a defendant to waive service. Scott could request that Kumar waive service under Rule 4(d). The court also stated that the Marshal was not responsible for ensuring or completing service, although Scott could rely on Marshal service and should request service and try to correct known defects.
Disposition
The court denied as moot Scott’s request that Golding be served because Golding had been served and had appeared. It denied Scott’s request that the Marshal serve Kumar with a request for waiver of service. It also denied Scott’s request that the Marshal effect service on Kumar. The court noted that it had already ordered the Marshal to serve Kumar and could not determine why service had not occurred until the Marshal filed the summons in the record. The order terminated Docket No. 25.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.