Calenture, LLC v. Shiff

Background

Calenture, LLC and Revive Investing LLC asked for permission to seek reimbursement under Federal Rule of Civil Procedure 4(d)(2) for expenses incurred in serving nominal defendant NeuBase Therapeutics, Inc. The plaintiffs also sought reasonable attorneys’ fees. The plaintiffs agreed that the request could be decided based on their letter rather than through formal motion practice.

The opinion states that the case had been referred for pretrial supervision and certain non-dispositive motions. The referral was initially made to Magistrate Judge Stewart D. Aaron and was later reassigned to Magistrate Judge Robyn F. Tarnofsky.

Rule 4 Requirements

Rule 4(d)(1) sets requirements for a valid request asking a defendant to waive formal service. Among other things, the request must include a prepaid means for returning the waiver form and must explain the consequences of waiving or refusing to waive service. Under Rule 4(d)(2), if a defendant in the United States refuses without good cause to return a waiver within the required period, the court must impose the later service expenses and reasonable expenses of a motion needed to collect those expenses. The opinion describes compliance with Rule 4(d)(1) as a condition that must be met before a plaintiff can recover those costs.

Court’s Analysis

The court found that the plaintiffs’ waiver request did not include a prepaid means of returning the form. Instead, it was sent by email without a self-addressed, stamped envelope or another prepaid mailing method. The request was also sent to an attorney who said that he was not authorized to accept a waiver request for NeuBase.

Because the plaintiffs did not comply with Rule 4(d)’s procedural requirements, the court found that recovery of costs and attorneys’ fees was not warranted.

Disposition

Judge Tarnofsky denied the plaintiffs’ request for costs and attorneys’ fees. The court ordered that each party bear its own costs.