HALES v. PRESTON et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JEREMY BRYAN HALES, et al.,
Plaintiffs,
vs. 	Case No.: 1:25cv58/RH/ZCB
JOHN COOK, et al.,
Defendants.
/
ORDER
This matter is before the Court on Plaintiffs’ “Motion for Expenses
Incurred in Making Service and Attorney’s Fees Pursuant to Rule 4(d) of
the 	Federal 	Rules 	of 	Civil 	Procedure” 	(Doc. 	134) 	and 	Defendant
Teschendorf’s response in opposition (Doc. 139). 	For the reasons below,
Plaintiffs’ motion is denied.
I. 	Discussion
In lieu of service, “the plaintiff may mail the defendant a waiver of
service of summons and allow the defendant 30 days to return the
waiver.” 	Albert v. Am. Fam. Ins. Co., No. 24-12598, 2025 WL 1951867,
at *1 (11th Cir. July 16, 2025). 	Defendants are not required to waive
service “and if they do not, the plaintiff must effect personal service.”
Phillips 	v. 	Life 	Prop. 	Mgmt. 	Servs., 	LLC, 	No. 	24-12598, 	2021 	WL
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5444921, at *1 (11th Cir. Nov. 22, 2021).
“Rule 4(d)(1) sets forth the requirements to request a waiver of
service[.]” 	Cambpell v. OPD, No. 6:24cv2313, 2025 WL 3294963, at *9
(M.D. Fla. Nov. 26, 2025). For individuals, the notice and request must:
(A) be in writing and addressed to the individual defendant; (B) name the
court where the complaint was filed; (C) be accompanied by a copy of the
complaint, two copies of the waiver form appended to Rule 4, and a
prepaid means for returning the form; (D) inform the defendant, using
the form appended to Rule 4, of the consequences of waiving and not
waiving service; (E) state the date when the request is sent; (F) give the
defendant a reasonable time of at least thirty days after the request was
sent to return the waiver; and (G) be sent by first-class mail or other
reliable means. Fed. R. Civ. P. 4(d)(1). The “procedural requirements of
Rule 4(d)(1)” are a “condition precedent to a demand for costs for refusal
to waive service.” 	Davies v. Scott, 2015 WL 13310012, at *2 (M.D. Fla.
Apr. 14, 2015).
Defendant Teschendorf first argues that Plaintiffs did not comply
with Rule 4(d)(1)(C) because they have not shown that a prepaid means
for returning the waiver was sent with the request. 	(Doc. 139 at 3, 5).
The Court rejects that argument. Although Plaintiffs have not submitted
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the prepaid FedEx label itself, the Court credits Plaintiffs’ claim that the
label 	was 	sent 	with 	the 	waiver 	request. 	The 	request 	and 	waiver
specifically reference the FedEx label being sent. (Doc. 134-1 at 1-4). And
the 	email 	request 	references 	an 	attachment 	titled 	“2025-08-
17T16_54_59_DTFedEx-Shipping-Label.pdf.” (Id. at 1). The Court finds
Plaintiffs have satisfied Rule 4(d)(1)(C).
The Court now turns to Defendant Teschendorf’s argument that he
had good cause for failing to return the waiver documents because he
never received them. (Doc. 139 at 5-6). Under Rule 4(d)(2), the defendant
should be ordered to pay the plaintiff’s reasonable costs and fees in
perfecting service if the defendant failed, without good cause, to sign and
return the waiver request. 	The “most obvious illustration of good cause
would be never having received” the waiver documents. 	4A Wright &
Miller’s Fed. Prac. & Proc. § 1092.1 (4th ed. 2015); see also Fed. R. Civ.
P. 4(d) advisory committee’s note to 1993 amendments (stating that a
circumstance where good cause would exist is if the defendant “did not
receive” the request to waive service). The determination of whether good
cause exists rests within the Court’s considerable discretion. 	Saxena v.
Allen, No. 1:22-cv-01769, 2024 WL 964817, at *2-3 (D. Colo. Mar. 6, 2024).
Defendant Teschendorf argues good cause exists because he never
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received the waiver documents. (Doc. 139 at 2). According to Defendant
Teschendorf, the waiver documents were sent to his brother’s residence
where Defendant Teschendorf occasionally stays, but where he does not
receive mail. 	(Id. at 5-6). 	Defendant Teschendorf denies ever receiving
the 	waiver 	documents that 	were 	mailed to 	his 	brother’s 	residence.
Moreover, the documents submitted to the Court show that the mail
package sent by Plaintiffs was “refused” and “returned to sender” by the
U.S. Postal Service. 	(Doc. 134-2). 	Thus, the evidence before the Court
does not show that Defendant Teschendorf received the mail package
containing the waiver documents. 	See Saxena, 2024 WL 964817, at *3
(refusing to impose costs and fees under Rule 4(d) where the mail package
containing the waiver documents had been “returned and marked by the
Post Office as undeliverable”).
Plaintiffs also contend that they sent the waiver documents to
Defendant Teschendorf at the email address miltownsbest1@gmail.com.1
1 There is an open question regarding whether email is a permissible
method for sending waiver documents under Rule 4(d). See Saxena, 2024
WL 964817, at *3 (expressing skepticism that email is a reliable means
of serving waiver documents under Rule 4(d)); see also Davies v. Scott,
No. 6:15-cv-21, 2015 WL 13310012, at *2 n.5 (M.D. Fla. Apr. 14, 2015)
(recognizing the issue but declining to address the argument regarding
whether email is a reliable means for sending a waiver request under
Rule 4(d)). 	The Court need not consider that question today because
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But Defendant Teschendorf states that the email was sent to an address
that he does not use for correspondence and, therefore, it went unread.
(Doc. 139 at 5-6). 	Plaintiffs have not provided a “read receipt” or any
other evidence contradicting Defendant Teschendorf’s statement that he
did not receive the email containing the waiver documents. 	See Saxena,
2024 WL 964817, at *4 (denying request for costs under Rule 4(d) where
the plaintiff “does not point to any documentation in the record” showing
that the defendant opened and read the emailed waiver documents).
At the end of the day, it is Plaintiffs’ burden to show entitlement to
costs and fees under Rule 4(d). 	Flores v. Sch. Bd. of DeSoto Par., 116 F.
App’x 504, 508 (5th Cir. 2004). 	And the Court finds that Plaintiffs “as
movant[s], ha[ve] not adequately demonstrated entitlement to the relief
sought” under Rule 4(d). 	Polk Const. Corp. v. Covasa Const., L.L.C., No.
12-2970, 2013 WL 6184988, at *3 (E.D. La. Nov. 26, 2013). 	Defendant
Teschendorf has plausibly asserted that he never received the waiver
documents, Plaintiffs have failed to rebut that assertion, and the failure
to receive waiver documents provides good cause. 	See id. at *2 (finding
assuming it is permissible to send waiver documents by email, Plaintiffs
have 	failed to 	show that 	Defendant 	Teschendorf received an email
containing the service documents in this case.
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that the plaintiff failed to show entitlement to fees and costs under Rule
4(d) where the defendant stated that “it never received the waiver
request, and [the plaintiff] does not offer sufficient evidence to the
contrary”); 	see 	also 	Clark 	v. 	Sheffield, 	No. 	CV 	317-025, 	2018 	WL
11726982, at *2 (S.D. Ga. Jan. 5, 2018) (declining to award fees under
Rule 4(d) where defendant claimed he never received a waiver request,
“Plaintiff 	provides 	nothing 	indicating 	[the 	defendant] 	received 	the
request[,]” and “it is reasonable to believe [the defendant] never received
a waiver request”). 	Accordingly, the Court finds that Plaintiffs are not
entitled to fees and costs under Rule 4(d). 	See Owens v. Benton, 190 F.
App’x 762, 764 (11th Cir. 2006) (finding no abuse of discretion in denying
costs and fees where “it was unclear whether the appellees were actually
served with the waiver of service of summons”).
II. 	Conclusion
Accordingly, it is ORDERED that Plaintiffs’ “Motion for Expenses
Incurred in Making Service and Attorney’s Fees Pursuant to Rule 4(d) of
the Federal Rules of Civil Procedure” (Doc. 134) is DENIED.
SO ORDERED. 	This the 24th day of February 2026.
s/
Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
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