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27. What is the trainer's best response to the horse jockey's request to waive service?
A horse jockey from State A sued an animal trainer from State B in State B federal court, seeking $80,000 as compensation for damages to his racehorse due to the trainer's alleged negligence. The horse jockey mailed to the trainer a request for waiver of service, two copies of the waiver form, a copy of the horse jockey's complaint, and a prepaid means of returning the form.
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If the plaintiff follows the procedures for requesting a waiver, the defendant may still refuse to waive service. However, if the defendant refuses waiver and does not show good cause for the refusal, FRCP 4(d)(2) states that the court must impose on the defendant expenses later incurred in making service and costs of any motion to collect those service expenses.
The Erie doctrine requires federal courts hearing state law claims to apply federal rules (the FRCP) on procedural issues and state law on substantive issues. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
C is correct. FRCP 4(d) provides the procedure for a plaintiff to request a waiver of service, which the horse jockey followed by mailing the request for waiver of service, two copies of the waiver form, a copy of the complaint, and a prepaid means of returning the form. If the trainer chooses not to waive service and does not show good cause, he will incur costs imposed by the court based on making service and any motion associated with collecting costs.
A is incorrect. This is a misstatement of the law. FRCP 4(d) requires waiving service of process unless good cause is shown. And the failure to waive service without good cause will result in costs being imposed on the defendant, including costs of service and reasonable expenses. Here, absent a showing of good cause, the trainer may therefore be penalized for failing to waive service.
B is incorrect. This choice also contains a misstatement of the law. FRCP 4(d) contains exact procedures for a plaintiff to request a waiver of service, and the horse jockey followed those procedures here. As a result, if the trainer does not show good cause, he will likely incur expenses for refusing to waive service.
D is incorrect. Under the Erie doctrine, states must apply federal procedural laws and state substantive laws. The mechanism for service of process is clearly a procedural issue, so the FRCP should be followed, not state law. As a result, the trainer may not look to state law to determine whether waiver is permissible.