United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Estevan Cervantez's
(“Cervantez”) Motion for Costs of Service of
Summons and Complaint. (Dkt. 20). Cervantez, formerly a
corrections officer for the Texas Department of Criminal
Justice (“TDCJ”), has sued nine TDCJ officials
and employees related to his alleged wrongful termination.
(See Compl., Dkt. 1). In his complaint, he
explicitly asserts claims against six of those defendants in
their individual capacities: Alonzo Hammonds, Steven Roskey,
Anthony Myles, Fernando Fuster, Donald Muniz, and Melodye
Nelson. (Id. at 27-28). He also explicitly asserts
claims against five of those defendants in their official
capacities: Muniz, Fuster, Bryan Collier, Patty Garcia, and
Kristie Largent. (Id. at 30).
for Cervantez avers that on January 9, 2019, he sent letters
via certified mail to all nine defendants with a copy of the
complaint; the summons; duplicate forms for waiving service;
and a self-addressed, prepaid envelope. (Mot., Dkt. 20 at
Only Roskey waived service; none of the other defendants
responded. (Id. at 3). On February 13, 2019,
plaintiff's counsel emailed seven of the defendants with
a follow-up request to waive service.
(Id.). None returned the waiver form by February
15, 2019, at which point Cervantez hired a process server to
deliver the summons and complaint to the eight defendants
that had not returned a waiver form. (Id. at 3-4).
Pointing to Federal Rule of Civil Procedure 4(d)(2),
Cervantez now asks the Court to impose on those defendants
the costs of hiring the process server and his attorney's
fees relating to the instant motion to collect those costs.
(Id. at 4-5). According to Cervantez, his
attorney's fees total $750.00 and his costs total
$744.35, broken down as follows: Collier and Fuster, $75.25
each; Nelson, Largent, Garcia, Myles, and Hammonds, $95.25
each; and Muniz, $117.60. (Id. at 5).
Rule of Civil Procedure 4(d) provides that individuals
subject to service under Rule 4(e) have “a duty to
avoid unnecessary expenses of serving the summons” and
permits a plaintiff to request that they waive service.
Fed.R.Civ.P. 4(d)(1). If a defendant fails, “without
good cause, ” to sign and return the plaintiff's
waiver request, then the Court must impose on that
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.” Fed.R.Civ.P. 4(d)(2).
object that Rule 4(d) does not apply here because Cervantez
sued them in their official capacities. (Resp., Dkt. 23, at
3-5). According to Defendants, Rule 4(d)'s waiver
provisions do not apply to them because they are subject to
service not under Rule 4(e), but under Rule 4(j)(2), which
applies to state officials. (Id. at 4). That is true
for the five defendants sued in their official capacities.
See Moore v. Hosemann, 591 F.3d 741, 747 (5th Cir.
2009) (“[A] state official sued in his official
capacity is not subject to the mandatory waiver-of-service
provisions of rule 4(d).”). For those five defendants,
the Court agrees that Rule 4(d) does not apply.
four defendants were sued only in their individual
capacities: Hammonds, Roskey, Myles, and Nelson. (Compl.,
Dkt. 1, at 27-28). Cervantez's claims against those
defendants are not claims against the state, which means Rule
4(j) does not apply. Those defendants must be served as
individuals under Rule 4(e), and so they are subject to Rule
4(d). Fed.R.Civ.P. 4(d)(1); see also Judeh v.
Louisiana State Univ. Sys., CIV.A. 12-1758, 2013 WL
654921, at *3 (E.D. La. Feb. 20, 2013) (declining to
“interpret the plain language of Rule 4 to mean that a
defendant sued in his individual capacity is subject to . . .
Rule 4(j)[‘s] . . . prohibition on waiver of
service”). Only Roskey returned Cervantez's request
for waiver. (Mot., Dkt. 20, at 3). The other three
defendants-Hammonds, Myles, and Nelson-must therefore pay
Cervantez's service expenses and related attorney's
fees unless they show good cause for failing to waive
service. Fed.R.Civ.P. 4(d)(2).
offer only two arguments for finding good cause. First, they
argue that Texas Rule of Civil Procedure 103 bars a person
who is a “party to or interested in the outcome of a
suit” from serving “any process in that
suit.” (Resp., Dkt. 23, at 5 (quoting Tex.R.Civ.P.
103)). But plaintiff's counsel is not a
“party” for purposes of Rule 4, and “is
therefore permitted to effect service under the rule.”
White v. Irene's Cuisine, Inc., CIV.A. 01-3912,
2002 WL 31308388, at *1 (E.D. La. Oct. 10, 2002) (citing
cases). More fundamentally, Rule 4(e) does not impose the
same limits on service as Rule 4(j) and permits service
according to several prescribed methods without limiting them
according to the forum state's law. Fed.R.Civ.P.
4(e)(2)(A), (B), (C).
Defendants argue that the Court cannot award expenses and
attorney's fees under Rule 4(d)(2) because Federal Rule
of Civil Procedure 54(d) only permits costs other than
attorney's fees to be awarded to a prevailing party, and
Cervantez is not yet a prevailing party. (Resp., Dkt. 23, at
6). But Rule 54(d) applies to judgments, and Defendants offer
no support for applying its limitations to expenses that a
court must assess under Rule 4. Even if Rule 54(d) did apply
in this context, its prevailing-party limitation only applies
“[u]nless . . . the [Federal Rules of Civil Procedure]
. . . provide[ ] otherwise[.]” Fed.R.Civ.P. 54(d)(1).
Rule 4(d)(2) provides otherwise: it commands a district court
to impose expenses incurred in making service and the
reasonable expenses, including attorney's fees, of a
motion required to collect those expenses. Fed.R.Civ.P.
4(d)(2). Nothing in Rule 4(d)(2) predicates the imposition of
such fees on prevailing on the merits, nor would such a
limitation make sense. Imposition of expenses under Rule
4(d)(2) depends upon whether a defendant fails, without good
cause, to sign and return a waiver request. Rule 54(d) is
irrelevant. Defendants have failed to articulate good cause
for failing to return Cervantez's waiver request. The
Court must therefore impose expenses upon Hammonds, Myles,
and Nelson, the three individually sued defendants who did
not return the waiver requests delivered to them.
Rule 4(d)(2)(B) directs courts to impose only the
reasonable expenses, including attorney's fees,
of a motion to collect the expenses incurred in making
service. Fed.R.Civ.P. 4(d)(2)(B). Cervantez states that his
reasonable attorney's fees are $750, supported only by
the uncited claim that other federal courts “have
awarded higher amounts in similar situations.” (Mot.,
Dkt. 20, at 5). Missing from Cervantez's fee request is
evidence of the time and labor required, evidence that his
hourly fee is reasonable, or any other evidence relevant to
the factors a court must examine to determine the
reasonability of a request for attorney's fees.
Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714,
717 (5th Cir. 1974). Without such evidence, the Court cannot
find that Cervantez's fee request is reasonable, and
therefore cannot order Defendants to pay his requested fees.
IT IS ORDERED that Cervantez's Motion
for Costs of Service of Summons and Complaint, (Dkt. 20), is
GRANTED IN PART. His motion is granted only
insofar as the following defendants shall pay to Cervantez
the expenses incurred in serving them: Defendant Nelson,
$95.25; Defendant Myles, $95.25; and Defendant Hammonds,
$95.25. His motion is denied in all other respects.
 The Court refers to the nine
defendants collectively as “Defendants.”
 Defendants do not contest the
representations made about the timing or content of
plaintiff's counsel's correspondence to them