Sally Beauty Company v. Nexxus Products Company, Inc.
United States District Court · 1984 · Contracts
578 F. Supp. 178 (1984)
Updated
ContractsService of processCivil procedureRule 4(c)(2)(D)acknowledgment of servicemail servicecost shiftingextension of time
Facts
At the start of the action, Sally mailed the summons and complaint to Nexxus in California by first class certified mail, return receipt requested, together with an appropriate request for acknowledgment of service in accordance with the rules. No acknowledgment was received. The court found that Nexxus's counsel refused to acknowledge receipt of service unless he was granted an extension of time to appear. Sally then obtained appointment of a special process server and completed service at a cost of $307.32.
Issue
Whether a defendant who refuses to acknowledge mailed service unless granted an extension of time may be required under Rule 4(c)(2)(D) to reimburse the plaintiff for the expenses of formal service. Also, whether the rule permits a defendant to condition acknowledgment of service on a stipulated extension of time.
Rule
Rule 4(c)(2)(D) is intended to avoid the cost and burden of formal service when responsible defendants represented by responsible counsel can be expected to acknowledge receipt of service and proceed with the litigation. The rule provides no authority for a defendant to impose conditions on acknowledgment of service, such as insisting on a stipulated extension of time; when acknowledgment is not given and the plaintiff must secure formal service, the defendant may be ordered to reimburse the resulting service expenses.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
Lakeshore Salon Supply filed a federal action in Chicago against Redwood Hair Labs, a California corporation. Lakeshore mailed the summons and complaint by first-class certified mail, return receipt requested, together with a proper request for acknowledgment; Redwood's lawyer responded that he would return the acknowledgment only if Lakeshore agreed to a 45-day extension to answer, so Lakeshore hired a special process server in San Diego.
If Lakeshore moves for reimbursement of the process-server fee under Rule 4(c)(2)(D), how should the court rule?
Explanation. The majority opinion states that the amended service rule is designed to avoid the cost and burden of formal service where defendants and counsel can be expected to acknowledge receipt and proceed with litigation. It further states there is no authority under the rule to impose a condition on acknowledgment such as insisting on a stipulated extension of time. Because Lakeshore properly mailed the papers with an appropriate acknowledgment request and then incurred formal-service costs after Redwood refused to acknowledge unless given an extension, reimbursement is appropriate. (Derived from Sally Beauty Company v. Nexxus Products Company, Inc. (1984).)