Estate of Darulis v. Garate ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM DARULIS, Estate of; MARK 
DARULIS, in representative
capacity,
Plaintiffs-Appellants,
No. 03-16580
v.
GARATE, San Francisco Police  D.C. No.
CV-02-02194-VRW
Officer # 902; SMITH, - #1531;
OPINION
LEACH, Lieutenant #614; CITY AND
COUNTY OF SAN FRANCISCO, District
Attorney’s Family Support Bureau,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Submitted February 11, 2005*
San Francisco, California
Filed March 22, 2005
Before: J. Clifford Wallace, Johnnie B. Rawlinson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Wallace
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
3497
3500 DARULIS v. GARATE
COUNSEL
Mark Darulis, plaintiff-appellant, pro se, Millbrae, California.
Brian Gearinger, Deputy City Attorney, San Francisco, Cali-
fornia, for the defendants-appellees.
OPINION
WALLACE, Senior Circuit Judge:
Mark Darulis, representing his deceased father, William
Darulis, appeals pro se from the district court’s judgment of
dismissal of this diversity action. Darulis also challenges the
district court’s order denying his motion for costs of service
of process pursuant to Federal Rule of Civil Procedure 4(d).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm the dismissal but reverse the denial of Darulis’ motion
for costs and remand for an award of costs.
I.
On January 21, 2000, Darulis, a resident of California, was
arrested by a member of the San Francisco Police Department
and subsequently incarcerated. He contends that as a result,
his father, an Ohio resident, “became distressed, which led to
a heart attack” and his eventual death on May 8, 2000.
Darulis submitted the required government tort claim to the
City and County of San Francisco on July 19, 2000, which
was rejected on September 14, 2000. On March 12, 2001,
Darulis filed a wrongful death complaint in the San Francisco
Superior Court, but later abandoned this action. Over a year
later, on May 7, 2002, he filed a complaint in the United
States District Court for the Northern District of California
which, after being amended twice, asserted a tort claim for the
DARULIS v. GARATE 3501
“pre-death suffering” of his father. He contends that by
unlawfully arresting him, the defendants negligently breached
a duty of care they owed to his father. Darulis also alleges that
he repeatedly mailed the individual defendants notice of the
lawsuit and requests for waiver of service of process. After
they failed to respond, he paid $90 to the San Francisco Sher-
iff to effectuate service on them.
II.
The district court applied the six-month limitations period
provided by California Government Code §§ 945.6 and 950.6,
rather than Ohio’s two-year statute of limitations. See OHIO
REV. CODE ANN. § 2305.10. Because the six-month period
began to run in September of 2000, and Darulis did not file
his federal complaint until May of 2002, the district court
granted the defendants’ motion to dismiss Darulis’ complaint
as untimely. See FED. R. CIV. P. 12(b)(6). Darulis does not
argue on appeal that the statute of limitations should have
been tolled, or that he timely filed within California’s limita-
tions period; rather, he challenges the district court’s choice-
of-law determination. We review this conclusion de novo. See
Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484
(9th Cir. 1987).
[1] “It is well-settled that in diversity cases federal courts
must apply the choice-of-law rules of the forum state.” Id. In
California, courts apply a three-part governmental interest
test. Arno v. Club Med Inc., 22 F.3d 1464, 1467 (9th Cir.
1994). First, we must assess whether the foreign state law
actually differs from the law of California. Id. If so, we then
consider each state’s interest in having its own law applied to
this case to determine whether there is a “true conflict”
between their interests. Id. Finally, if each state has a legiti-
mate interest, we compare the extent to which each state’s
interests will be impaired if the other state’s law is applied. Id.
[2] Applying this test, the district court properly concluded
that California’s six-month limitations period should govern.
3502 DARULIS v. GARATE
Both California and Ohio have an interest in preserving tort
claims for a reasonable length of time, and both states gener-
ally provide a two-year limitations period. See CAL. GOV’T
CODE § 945.6(a)(2); OHIO REV. CODE ANN. § 2305.10. Califor-
nia, however, imposes a six-month period here because the
public-entity defendant issued Darulis a written rejection
notice which specifically warned him that a shortened limita-
tions period would apply. See CAL. GOV’T CODE §§ 913,
945.6(a)(1). Just as this special warning exception is consis-
tent with California’s interest in providing a reasonable limi-
tations period, so too is it consistent with Ohio’s interest.
Ohio’s interest was further satisfied when Darulis was able to
file a wrongful death complaint in the San Francisco Superior
Court within the allowed six months.
[3] There is thus no “true conflict” between California and
Ohio interests. Moreover, even if there was such a true con-
flict, the third step of the choice-of-law analysis also supports
the district court’s decision to apply California law. Ohio has
a relatively slight connection with this case. Any interest it
may have in preserving a full two-year period is outweighed
by California’s interest in regulating tort actions brought
against its public officials based on conduct which occurred
within its borders. Cf. Orr v. Bank of Am., 285 F.3d 764, 772
& n.4 (9th Cir. 2002) (California had little interest in having
its law applied where alleged torts occurred in Nevada, plain-
tiff was a resident of Nevada, and the defendant bank’s
branch was located in Nevada).
III.
Darulis contends that because the defendants failed to
waive service of process, he is entitled to an award of the
costs he incurred in effecting service on the defendants. We
review the district court’s denial of costs for an abuse of dis-
cretion. Miles v. California, 320 F.3d 986, 988 (9th Cir.
2003). “If an exercise of discretion is based on an erroneous
interpretation of the law, the ruling should be overturned.” Id.
DARULIS v. GARATE 3503
[4] Federal Rule of Civil Procedure 4(d)(2) provides:
If a defendant located within the United States fails
to comply with a request for waiver made by a plain-
tiff located within the United States, the court shall
impose the costs subsequently incurred in effecting
service on the defendant unless good cause for the
failure be shown.
[5] Federal Rule of Civil Procedure 4(d)(5) clarifies the
costs to be awarded pursuant to Rule 4(d)(2):
The costs to be imposed on a defendant under para-
graph (2) for failure to comply with a request to
waive service of a summons shall include the costs
subsequently incurred in effecting service . . .
together with the costs, including a reasonable attor-
ney’s fee, of any motion required to collect the costs
of service.
The defendants do not contest Darulis’ assertion that they
did not respond to his waiver requests, nor do they suggest
Darulis’ requests did not satisfy the requirements of Rule
4(d)(2) or that they had good cause for failing to respond.
Rather, they argue — and the district court held — that
because they are the prevailing party, they are entitled to costs
pursuant to Rule 54(d)(1), including any costs they would oth-
erwise have to pay Darulis pursuant to Rule 4(d)(2). See FED.
R. CIV. P. 54(d)(1) (“Except when express provision therefor
is made either in a statute of the United States or in these
rules, costs other than attorneys’ fees shall be allowed as of
course to the prevailing party unless the court otherwise
directs . . . .”).
[6] We disagree with the district court’s interpretation of
the interplay between Rules 4(d)(2) and 54(d)(1). Rule 4(d)(2)
is a free-standing cost provision, whereas Rule 54(d)(1) spe-
cifically states that it applies except when another federal rule
3504 DARULIS v. GARATE
expressly governs. Furthermore, the purpose of Rule 4(d) is
“to eliminate the costs of service of a summons on many par-
ties and to foster cooperation among adversaries and coun-
sel.” FED. R. CIV. P. 4(d) Advisory Committee note on 1993
amendments. To underscore this policy, Rule 4(d)(2) imposes
a duty to avoid unnecessary costs of service. See FED. R. CIV.
P. 4(d)(2) (“An individual, corporation, or association that is
subject to service . . . and that receives notice of an action . . .
has a duty to avoid unnecessary costs of serving the sum-
mons.”). This policy can be promoted regardless of which
party eventually prevails on the merits, and indeed, it would
be undermined if a defendant who creates unnecessary costs
can gamble that he or she will be able to sidestep Rule 4(d)(2)
via Rule 54(d)(1). Cf. Troxell v. Fedders of N. Am., Inc., 160
F.3d 381, 383 (7th Cir. 1998) (“[A] defendant . . . that wants
to stand on formalities, for whatever reason, is entitled to do
so, as long as it is willing to pay for the privilege.”).
In addition, the Advisory Committee has remarked:
A defendant failing to comply with a request for a
waiver shall be given an opportunity to show good
cause for the failure, but sufficient cause should be
rare. It is not good cause for failure to waive service
that the claim is unjust or that the court lacks juris-
diction.
FED. R. CIV. P. 4(d)(2) Advisory Committee note on 1993
amendment (emphasis added). This strongly suggests the
Committee did not intend to curtail application of Rule
4(d)(2) where a defendant was subject to an ultimately unsuc-
cessful claim.
[7] In light of the express language of Rules 4(d)(2) and
54(d)(1), as well as the indications of the Advisory Commit-
tee’s intent, we hold the district court abused its discretion in
denying Darulis an award of costs for service of process. Rule
DARULIS v. GARATE 3505
4(d)(2) provides for an award of such costs regardless of
which party can recover other costs pursuant to Rule 54(d)(1).
The district court’s judgment of dismissal is AFFIRMED;
the district court’s denial of costs pursuant to Rule 4(d)(2) is
REVERSED AND REMANDED for an award of costs. Costs
on appeal are awarded to Darulis.