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Villarreal v. Dewitt

United States District Court, E.D. Arkansas, Northern Division

March 29, 2019

LETICIA VILLARREAL PLAINTIFF
v.
KENNETH DEWITT, et al. DEFENDANTS CAROLYN ARNETT CONSOLIDATED PLAINTIFF LARRY NORRIS, et al. CONSOLIDATED DEFENDANTS

          ORDER

          Kristine G. Baker United States District Court Judge

         Before 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).[1] 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).

         I. Background

         On 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).

         On 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.).

         On 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.).

         On 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, at 4).

         As a 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 explanation:
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).

         II. Discussion

         Ms. 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 ...


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