HALES v. PRESTON et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JEREMY B. HALES,
Plaintiff,
vs. 	Case No.: 1:25cv58/RH/ZCB
RICHARD LUTHMANN, JR., et al.,
Defendants.
/
ORDER
Currently before the Court is Plaintiff’s “Motion for Expenses
Incurred in Making Service and Attorney’s Fees Pursuant to Rule 4(d) of
the Federal Rules of Civil Procedure.” (Doc. 157). Defendant Luthmann
has responded in opposition. (Doc. 160). For the reasons below, Plaintiff’s
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[.]” 	Campbell v. OPD, No. 6:24-cv-2313, 2025 WL 3294963, at *9
(M.D. Fla. Nov. 26, 2025). 	For individuals, the 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, No. 6:15-cv-21 2015 WL 13310012, at
*2 (M.D. Fla. Apr. 14, 2015).
Defendant Luthmann argues, inter alia, that good cause exists for
his failure to return Plaintiff’s waiver requests because he never received
the mailed waiver request, the email waiver request was improper, and
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the service deadline had already expired when the waiver requests were
sent. As explained below, the Court agrees with Defendant Luthmann.
A. Plaintiff 	has 	not 	adequately 	shown 	that 	Defendant
Luthmann received the mailed waiver request.
The Court first considers Plaintiff’s mailed waiver request, which
was sent to 338 Sugar Pine Lane, Naples, Florida, on August 17, 2025.1
(Doc. 157 at 2; Doc. 157-1). Defendant Luthmann argues that good cause
exists for his failure to return this mailed waiver request because he has
not resided at that address since January of 2024 and, therefore, never
received the mailed request. (Doc. 160 at 4).
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. 	But
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
1 Plaintiff’s motion says the mailed waiver request was sent on August
17, 2025, but the tracking label indicates August 18, 2025. Because this
one-day difference does not alter the Court’s conclusions, the Court gives
Plaintiff the benefit of the doubt and considers the waiver request sent
on August 17, 2025.
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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 discretion. 	Saxena v. Allen, No. 1:22cv-01769, 2024 WL 964817,
at *2-3 (D. Colo. Mar. 6, 2024).
Here, 	Plaintiff 	has 	not 	adequately 	shown 	that 	Defendant
Luthmann received the mailed waiver request. 	Plaintiff provides no
evidence to rebut Defendant Luthmann’s assertion that he has not
resided at the 338 Sugar Pine Lane address since January 2024—well
before the waiver request was mailed there in August 2025. 	Defendant
Luthmann points to documentary evidence that supports his assertion of
residency at a different address from the one the waiver request was
mailed to. (See Doc. 160 at 12-13, 32).2 And the mail package containing
the waiver request was marked “returned to sender, unable to forward”
by the U.S. Postal Service. 	(Doc. 157-1). 	Thus, the evidence before the
Court is insufficient to show that Defendant Luthmann received the
2 See also Doc. 59, Case No. 2:25cv337 (M.D. Fla.) (showing Defendant
Luthmann residing at 4199 Los Altos Court, Naples, Florida, on August
11, 2025); Doc. 384, Case No. 2:23cv1218 (M.D. Fla.) (showing the same
address in a filing submitted May 16, 2025).
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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”).
B. Plaintiff has not adequately shown that the email waiver
request complied with Rule 4(d)(1)’s requirements.
The 	Court 	next 	considers 	the 	email 	waiver 	request 	sent 	to
Defendant Luthmann on August 17, 2025. 	Defendant Luthmann does
not dispute that he received the email waiver request. 	(Doc. 160 at 4).
Instead, he argues he was justified in rejecting the email waiver request
because it was improper under Rule 4(d)(1).
At the outset, the Court notes that it “is an open question . . .
whether email is a permissible method for sending waiver documents
under Rule 4(d).” 	Hales v. Cook, No. 1:25cv58, 2026 WL 508815, at *2
n.1 (N.D. Fla. Feb. 24, 2026) (collecting cases).3 	But even assuming
arguendo that email is a “reliable means” of sending a waiver request,
3 See also Gaby’s Bags, LLC v. Mercari, Inc., No. C20-00734, 2020 WL
7664455, at *4 (N.D. Cal. Dec. 25, 2020) (“[T]he requests for waiver of
formal process were not sent by first-class or other reliable means within
the meaning of Rule 4(d)(1)(G). 	It was sent by email, not first-class
mail.”).
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Plaintiff has not shown that the email waiver request sent to Defendant
Luthmann complied with Rule 4(d)(1)’s requirements.
Specifically, Plaintiff has not shown that a “prepaid means for
returning the [waiver] form” was included with the email waiver request.
Fed. R. Civ. P. 4(d)(1)(C). 	Plaintiff fails to include a copy of the email
waiver request with the motion. 	And the copy included by Defendant
Luthmann does not show whether the email waiver request included a
prepaid means to return the waiver documents. 	(Doc. 160 at 30-31).
Without evidence showing that the email waiver request included a
prepaid 	means 	to 	return 	the 	waiver 	documents, 	the 	Court 	cannot
conclude that Plaintiff’s email waiver request satisfied Rule 4(d)(1)’s
requirements. See Kumaran v. Vision Fin. Markets, LLC, 338 F.R.D. 17,
18-19 (S.D.N.Y. 2021) (“Plaintiff has failed to demonstrate that she
provided to Villa a prepaid means for returning the waiver form, as
required by Rule 4(d)(1)(C). 	Since Plaintiff sent the waiver forms by
email, she failed to provide Villa, for example, with a self-addressed,
stamped envelope. 	As such, Plaintiff failed to meet the requirements of
Rule 4(d) and is not entitled to recover her costs and expenses.”); see also
Gaby’s Bags, 2020 WL 7664455, at *4 (declining to award Rule 4(d)
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service costs where an email waiver request did not include a prepaid
means of returning the waiver documents).
C. Plaintiff’s waiver requests were untimely.
Although Plaintiff’s motion can be denied for the reasons above, the
Court will address Defendant Luthmann’s timeliness argument because
it provides an additional basis for denying Plaintiff’s motion. 	Even if
Plaintiff had shown that Defendant Luthmann received the mailed
waiver request and even if the email waiver request included a prepaid
means of returning the waiver documents, the fact remains that the
waiver requests were untimely.
As mentioned, Plaintiff sent both waiver requests on August 17,
2025. 	(Doc. 157 at 2). 	But the initial deadline to effect service on
Defendant Luthmann expired on July 28, 2025—several weeks before the
waiver requests were sent.4 	Although the Court later retroactively
4 Defendant Luthmann was named as a Defendant in the first amended
complaint filed on April 28, 2025. 	(Doc. 35). 	Thus, Plaintiff’s initial
deadline to serve Defendant Luthmann was Monday, July 28, 2025. (See
Doc. 86 at 2-4 & n.2); see also Fed. R. Civ. P. 4(m) (providing a 90-day
deadline to effect service); Fed. R. Civ. P. 6(a)(1)(A) (“[E]xclude the day of
the event that triggers the period[.]”); Fed. R. Civ. P. 6(a)(1)(C) (“[I]nclude
the last day of the period, but if the last day is a Saturday, Sunday, or
legal holiday, the period continues to run until the end of the next day
that is not a Saturday, Sunday, or legal holiday.”).
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extended 	Defendant 	Luthmann’s 	service 	deadline 	(Doc. 	132), 	the
deadline 	had 	already 	expired, 	and 	Plaintiff 	had 	not 	requested 	an
extension of time, when the waiver requests were sent.5 Therefore, even
if Plaintiff had otherwise complied with Rule 4(d)(1)’s requirements, the
waiver requests were untimely when they were sent on August 17, 2025.
(See Doc. 132 at 5 n.3) (explaining that Plaintiff’s attempt to serve process
on Defendant Luthmann on August 4, 2025, was untimely). Because the
waiver requests were untimely, Plaintiff’s motion for service costs is due
to be denied.6 	See Gonzalez-Marcano v. U.S. Airways Grp., Inc., No. 13-
3714, 2014 WL 413932, at *8 (E.D. Pa. Jan. 31, 2014) (refusing to order
5 That retroactive extension did not take effect until October 30, 2025—
three months after Defendant Luthmann’s service deadline had already
expired and two months after Plaintiff sent the waiver requests. 	(Doc.
132). 	And Plaintiff’s motion seeking additional time to serve Defendant
Luthmann was not filed until September 29, 2025—two months after the
service deadline and a month after the waiver requests were sent. (Doc.
115 at 11).
6 The retroactive extension of Defendant Luthmann’s service deadline
does not change this conclusion. Recovering service costs based on waiver
requests that were untimely, and thus procedurally deficient, when they
were sent is at odds with the purposes of Rule 4(d) and would potentially
incentivize litigants to engage in procedural gamesmanship regarding
waiver requests and service deadline extensions. 	See Est. of Darulis v.
Garate, 401 F.3d 1060, 1063 (9th Cir. 2005) (noting the purpose of Rule
4(d) is “to eliminate the costs of service of a summons on many parties
and to foster cooperation among adversaries and counsel”).
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payment of the plaintiff’s service fees because the request for waiver of
service was untimely); see also Fed. R. Civ. P. 4(d), advisory committee’s
note to 1993 amendments (“The procedure of requesting waiver of service
should also not be used if the time for service under subdivision (m) will
expire before the date on which the waiver must be returned.”).
II. 	Conclusion
For the reasons above, it is ORDERED that:
1. 	Plaintiff’s “Motion for Expenses Incurred in Making Service
and Attorney’s Fees Pursuant to Rule 4(d) of the Federal Rules of Civil
Procedure” (Doc. 157) is DENIED.
2. 	Plaintiff’s “Motion for Status and to Expedite Ruling” (Doc.
192) is DENIED as moot.
SO ORDERED. 	This 2nd day of September 2026.
s/
Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
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