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Requesting costs and attorney fees under Rule 4

by Stan Burman

Requesting costs and attorney fees under Rule 4 is the topic of this blog post.

Requesting costs and attorney fees under Rule 4 in United States District Court is authorized pursuant to the provisions of Rule 4(d)(2) of the Federal Rules of Civil Procedure on the grounds that the defendant failed to waive service of the summons and complaint and deliberately evaded service.

In addition to providing the plaintiff with an entitlement to an award of service expenses, Rule 4(d)(2)(B) requires that the costs of obtaining the expenses, including reasonable attorney fees, also be awarded.  The 1993 Advisory Committee Notes explained the need for this provision:

"In the absence of such a provision, the purpose of the rule would be frustrated by the cost of its enforcement, which is likely to be high in relation to the small benefit secured by the plaintiff.”

Rule 4(d)(2) of the Federal Rules of Civil Procedure requires a court to impose both the expenses of service and the costs of counsel in seeking those expenses, including a reasonable attorney fee, when the defendant fails to execute and return a waiver of service when requested:

“(2) Failure to Waive. If a defendant located within 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:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.”

Requesting costs and attorney fees under Rule 4 can be done at any time once the plaintiff can meet their burden of showing:

The defendant failed to waive service of the summons and deliberately evaded service;

The defendant failed to pay the expenses incurred in making service;

Plaintiff can substantiate their costs incurred in attempting to serve, or actually serving, the defendant, and

Plaintiff can substantiate their attorney fees incurred in filing the motion.

Several published decisions from United States District Courts have stated that Requesting costs and attorney fees under Rule 4 is not premature even if it is filed before the end of the case.   Other published decisions have stated that any order can set a deadline for payment, and that sanctions can be ordered if the payment is not made on time.

Sample motion requesting costs and attorney fees under Rule 4 in United States District Court for sale.

Attorneys or parties that would like to view a portion of a 13 page sample motion requesting costs and attorney fees under Rule 4 in United States District Court containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can see below.

Sample Motion for Costs and Attorney's Fees Under Rule 4 by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

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The author of this blog post, Stan Burman, is a retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
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