Monday, March 28, 2005

Darulis v. Garate (9th Cir. - March 22, 2003)

It's pretty darn rare to see Judges Wallace and Bybee join an opinion that finds in favor of a pro se litigant, and rarer still to see Judge Wallace write such an opinion. Just for fun, I did a Westlaw search to see how many I could find. I found tons where Judge Wallace wrote a majority opinion against a pro se litigant. And I found several where Judge Wallace dissented when the majority found in favor of the pro se litigant. But I coudn't find a single one where he found in favor of the pro se. I'm sure they're out there. Somewhere. I just couldn't find them. Even after reading lots and lots of cases.

Which suggests, inter alia, that this is not exactly the panel you'd want if you're representing yourself on appeal. That said, Judge Wallace does indeed find in favor of the pro se litigant here. Sure, Judge Wallace dismisses his lawsuit on the merits. But he simultaneously finds that the district court should nonetheless have awarded Darilus $90 in costs since the defendants refused to waive service of process under Rule 4(d).

So a stunning win for Darilus.

Judge Wallace is, of course, correct with respect to the $90. Plaintiffs are still entitled to their costs under Rule 4(d) if defendants refuse to waive service of process, even if the plaintiff ends up losing the lawsuit. Rule 4 imposes a duty on defendants to minimize expense and waive formal service if a proper request is made, as was done here. Even in a lawsuit without merit. When you don't comply with that obligation, you must pay. As Judge Wallace rightly finds here.