United States District Court, E.D. Arkansas, Northern Division
Kristine G. Baker United States District Court Judge
the Court is consolidated plaintiff Carolyn Arnett's
motion for costs and attorney's fees pursuant to Federal
Rule of Civil Procedure 4(d)(2) (Dkt. No. 30). In her motion,
Ms. Arnett seeks an Order from this Court compelling
defendants Larry Norris, Ray Hobbs, Wendy Kelley, Linda
Dixon, John Maples, Maggie Capel, Nurzuhal Faust, Christopher
Budnik, John Mark Wheeler, Don Yancey, and Linda Dykes
(collectively, the “ADC defendants”) to pay $2,
343.15 in costs and attorneys' fees that Ms. Arnett
allegedly incurred because of defendants' refusal to
waive service (Id.). The ADC defendants responded in
opposition (Dkt. No. 32). The Court's decision on the
motion is set forth below (Dkt. No. 30).
December 21, 2016, separate plaintiff Leticia Villarreal
filed an amended complaint alleging claims against Phillip
Allen, Kenneth DeWitt, Ms. Dixon, Ms. Faust, Kristina Gates,
Tonya Gates, Mr. Hobbs, Stacey Smith, and Alva Yancy (Dkt.
No. 2). On August 28, 2017, the Court granted Ms. Villarreal
leave to amend her first amended complaint (Dkt. No. 20). On
August 29, 2017, counsel for the Arkansas Attorney General
(“AAG”) sent an email to counsel for Ms.
Villarreal stating that, “Once served, I anticipate
entering my appearance on behalf of the following: Larry
Norris, Ray Hobbs, Wendy Kelley, Linda Dixon, John Maples,
Maggie Capel, Nurzuhal Faust, Christopher Budnik, John Mark
Wheeler, and Don Yancy. I am not authorized to accept service
on behalf of any of these individuals.” (Dkt. No. 31-2,
at 1). On September 5, 2017, Ms. Villarreal filed her amended
complaint, and Ms. Arnett filed her complaint in a separate
action. See Arnett v. Norris, et al.,
1:17-cv-00076-KGB (E.D. Ark. 2017).
September 12, 2017, Ms. Arnett's counsel asked counsel at
the AAG's office for a list of addresses at which the ADC
defendants in the Arnett v. Norris action could be
served (Dkt. No. 31-2, at 2). In that letter, Ms.
Arnett's counsel acknowledged that counsel at the
AAG's office was not authorized to accept service on
behalf of defendants but asked for “their various
professional addresses so that [plaintiff] might avoid the
additional time and expense in issuing waivers and notices of
the lawsuit to each of them.” (Id.).
September 27, 2017, counsel for Ms. Arnett sent waiver
requests to the ADC defendants in the Arnett v.
Norris case: Mr. Norris, Mr. Hobbs, Ms. Kelley, Ms.
Dixon, Mr. Maples, Ms. Capel, Ms. Faust, Mr. Budnik, Ms.
Dykes, Mr. Wheeler, Mr. Yancey, and Jennifer Smith (Dkt. No.
31-4, at 1-48). Ms. Arnett represents that these waiver
requests included a cover letter, a copy of her complaint, a
notice of lawsuit and request to waive service of a summons,
and two copies of a waiver of the service of summons form
(Id.). Counsel at the AAG's office was copied on
these waiver requests (Id.).
September 29, 2017, counsel for Ms. Arnett informed counsel
at the AAG's office that he had sent the waiver requests
to the Arkansas Department of Correction's
(“ADC”) compliance office at 7300 Dollarway Road,
White Hall, Arkansas 71602 (Dkt. No. 31-2, at 3). Counsel at
the AAG's office responded on October 2, 2017, that Ms.
Arnett had sent the materials to the correct address
(Id.). The waiver form specifically states:
“This is not a summons, or an official notice from the
court. It is a request that, to avoid expenses, you waive
formal service of a summons by signing and returning the
enclosed waiver. To avoid these expenses, you must return the
signed waiver within 30 days. . . from the date shown below,
which is the date this notice was sent.” (Dkt. No.
31-4, at 2, 6, 10, 14, 18, 22, 26, 30, 34, 38, 42, 46). On
November 9, 2017, counsel at the AAG's office sent Ms.
Arnett's counsel an email stating that “[m]y
clients will not be waiving service.” (Dkt. No. 31-2,
result, on November 10, 2017, Ms. Arnett sent each of the ADC
defendants-plus Ms. Stacey Smith-a copy of the complaint and
a summons via certified U.S. mail (Dkt. Nos. 31-3,
at 1-3; 31-5, at 1-39). Ms. Arnett represents that this
mailing cost $194.70 (Dkt. No. 31-1). Each of these mailings
was directed to the ADC's compliance office (Dkt. No.
31-5). Approximately two weeks later, each of these mailings
was returned to Ms. Arnett as “refused.” (Dkt.
No. 31, at 5).
Counsel at the AAG's office sent Ms. Arnett the following
My understanding is that if your office will send the mail
via certified mail, signature confirmation, then the
Compliance Department will accept service on those
individuals I have previously told you they would. When you
indicate [the mailing] is for restricted delivery, it tells
them that only the named defendant can accept it.
(Dkt. No. 31-2, at 5). Ms. Arnett's counsel responded to
counsel at the AAG's office and “confirmed our
mistake insofar as we checked the box which reads: signature
confirmation- restricted delivery.” (Dkt. No. 32-5, at
2). Counsel for Ms. Arnett also responded that he would send
the mailings again via certified mail, signature
confirmation requested (Dkt. No. 31-2, at 5). Accordingly, on
November 28, 2017, Ms. Arnett sent a copy of the complaint
and summons to defendants at a cost of $165.95 (Dkt. No.
31-1). As a result, the following defendants were served with
a copy of the complaint and summons: Mr. Norris, Mr. Hobbs,
Ms. Kelley, Ms. Dixon, Mr. Maples, Ms. Capel, Ms. Faust, Mr.
Budnik, Ms. Dykes, and Mr. Yancey (Dkt. No. 31-3, at 1-3).
Arnett seeks $2, 343.15 in costs and attorneys' fees
allegedly incurred because of defendants' refusal to
waive service without good cause (Dkt. No. 30). The ADC
Defendants argue that their “reluctance to waive
service was based upon their unfamiliarity and general unease
with the request, and not any intentional means to avoid
service.” (Dkt. No. 32, at 3). Furthermore, the ADC
defendants assert that they have taken several steps to
assist Ms. Arnett in her attempts to perfect service
(Id., at 4). Finally, the ADC defendants argue that,
if the Court determines that Ms. Arnett is entitled to ...