Opinion
Case No. 02-2032-JWL
March 18, 2002
MEMORANDUM AND ORDER
Plaintiff filed this negligence action in state court arising out of an automobile accident. Thereafter, defendants removed the case to this court. This matter is presently before the court on plaintiff's motion to remand (doc. #4). For the reasons set forth below, plaintiff's motion to remand is granted.
Background
Plaintiff, a citizen of Illinois, filed suit in the District Court of Wyandotte County, Kansas arising out of an automobile accident occurring in Kansas City, Kansas. Defendant Harry J. Freeman is a citizen of Kansas and defendant Enterprise is a Missouri corporation. As plaintiff alleged in his state court petition that the amount in controversy exceeded $75,000.00, defendants removed the case to this court on the basis of diversity jurisdiction. See 28 U.S.C. § 1441 (a). Discussion
In support of his motion to remand, plaintiff relies on 28 U.S.C. § 1441 (b) which permits removal of diversity cases "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." According to plaintiff, because defendant Harry J. Freeman is a citizen of Kansas (the state in which the action was brought), removal is prohibited by § 1441(b) and the case must be remanded to state court. See Feichko v. Denver Rio Grande Western Railroad Co., 213 F.3d 586, 588 n. 3 (10th Cir. 2000) (recognizing rule).
In response, defendants acknowledge the rule set forth in § 1441(b) but contend that defendant Harry J. Freeman was not "properly served" as required by § 1441(b). According to defendants, service with respect to defendant Freeman was ineffective for two reasons — because the person effecting service (a legal assistant) was not authorized by law to do so and because the return receipt does not indicate the address of the place where the letter was delivered. As explained below, both contentions lack merit.
In passing, defendants also contend that service on Mr. Freeman was not effective because the return of service was not filed with the state court clerk until February 4, 2002 — more than 10 days after the delivery of the summons. See K.S.A. § 60-312(d) (return of service shall be made promptly and in any event within 10 days after the service is effected). This argument, too, lacks merit as it elevates form over substance — something that Kansas courts have declined to do. See Cook v. Freeman, 16 Kan. App. 2d 555, 559-60 (1992) (specifically rejecting argument that failure to make a timely return of service renders otherwise valid service void or voidable; "a technical defect in the return of service, which does not impair the substantial rights of a defendant, should not defeat that service").
The return on service of summons indicates that plaintiff's attorney's legal assistant served the summons by mailing a copy of the summons and petition via certified mail return receipt requested to Harry Freeman's residence. Defendants contend that the legal assistant was not authorized to do so as only "the sheriff, party, or party's attorney" are permitted to serve process via certified mail and only those persons can execute the return on service. See K.S.A. § 60-303(c)(2) (4). A close reading of K.S.A. § 60-303(c)(2), however, reveals that it requires only that "the sheriff, party, or party's attorney shall cause a copy of the process and petition or other documents to be placed in a sealed enveloped addressed to the person to be served." Contrary to defendants' argument, then, the statute does not indicate that the party's attorney must personally place the documents in an envelope and then deliver the envelope to the U.S. Postal Service. By having his legal assistant perform this task, the attorney "caused" the service of process within the meaning of § 60-303(c)(2). Moreover, while § 60-303(c)(4) states that "the sheriff, party, or party's attorney shall execute a return on service," it is axiomatic that a lawyer may delegate this type of task to a lay person who then performs the task as an agent of the lawyer. See In re Flack, 33 P.3d 1281, 1286-87 (Kan. 2001) (discussing KRPC 5.3 and recognizing that attorneys often delegate certain tasks to nonlawyers); In re Wilkinson, 251 Kan. 546, 548-52 (1992); State v. Barrett, 207 Kan. 178, 184 (1971) (work done by secretaries and other lay persons is done as agents of the lawyer employing them).
Defendants also contend that the return receipt does not indicate the address where the letter was delivered. See K.S.A. § 60-303(c)(1) (return receipt must show, inter alia, address where delivered). Specifically, defendants point out that the return receipt contains the question "Is delivery address different from [address found in] Item 1?" This question was left unanswered. Thus, although Item 1 on the return receipt listed Harry Freeman's home address, it is unclear from the return receipt whether the certified letter was delivered to Mr. Freeman's home address or elsewhere. While such an omission might be significant if the certified letter was delivered to and accepted by someone other than defendant Freeman, the return receipt indicates that defendant Freeman personally accepted and signed for the letter. Because a copy of the summons and complaint were delivered to the defendant personally, service was proper. See K.S.A. § 60-304(a).
In sum, then, defendants have failed to show that defendant Freeman was not properly served. Thus, removal was improper under 28 U.S.C. § 1441 (b) and the court is required to remand the case to state court. See 28 U.S.C. § 1447 (c); International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 87 (1991) ("Since the district court had no original jurisdiction over this case, a finding that removal was improper deprives that court of subject matter jurisdiction and obliges a remand under the terms of § 1447(c)." (internal citation omitted) (superseded by statute on other grounds)). Before doing so, the court addresses one final issue — plaintiff's request for an award of attorneys' fees and costs associated with defendants' improper removal. See 28 U.S.C. § 1447 (c) ("An order remanding may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal."). Specifically, plaintiff requests an award in the amount of $2,216.07 for expenses and fees associated with obtaining the remand order. As the amount requested is properly supported by affidavits (affidavits to which defendants have not objected or responded) and appears reasonable to the court, the court awards plaintiff the amount requested. See Excell, Inc. v. Sterling Boiler Mechanical, Inc., 106 F.3d 318, 322 (10th Cir. 1997) (in deciding whether to award costs under § 1447(c), the key factor is the propriety of defendant's removal and the district court does not have to find that the state court action has been removed in bad faith as a prerequisite to awarding attorney fees and costs); see also Green v. All Star Moving Storage, Inc., No. 99-4106-DES, 2000 WL 422339, at *2 (D. Kan. Mar. 31, 2000) (awarding plaintiff $1300 for reasonable attorneys fees and costs under § 1447(c) where defendant should not have sought removal).
For the foregoing reasons, plaintiff's motion to remand is granted. IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion to remand (doc. #4) is granted and defendants shall pay plaintiff $2,216.07 for reasonable expenses and fees associated with obtaining the remand order. The case is remanded to the District Court of Wyandotte County, Kansas. A certified copy of this order of remand shall be mailed by the clerk to the clerk of the state court. IT IS SO ORDERED.
PLAINTIFF'S AMENDED MOTION FOR LEAVE TO FILE A FIRST AMENDED PETITION AND TO AMEND PROCESS
Comes now plaintiff in the above-styled action by and through his attorney of record and respectfully moves the court once more for leave to amend his petition and make other pleading amendments, pursuant to FRCP 4(l) and FRCP 15(c). In support of this motion, plaintiff states:1. This is a personal injury action arising out of a rear end automobile collision at the Bonner Springs Turnpike exit.
2. Plaintiff seeks leave to file a first amended petition, a copy of which is attached hereto as Exhibit A, for the purpose of amending the name of the corporate defendant from Enterprise Rent-A-Car to Enterprise Leasing of Kansas, a Kansas Corporation.
3. FRCP 15 mandates that leave to amend shall be freely given when justice so requires.
4. Generally, amendments to pleadings are favored in law and should be allowed liberally in the furtherance of justice to the end that every case may be presented on its real facts and determined on its merits. Motions for leave to amend pleadings are addressed to sound judicial discretion, which is not to be exercised arbitrarily or used to defeat the ends of justice. Union P.R. Co. v. Wyler, 158 U.S. 285, 39 L.ed. 983.
5. The accident report in the above-referenced collision mistakenly described the owner of the defendant Freeman's car as Enterprise Rent-A-Car as opposed to Enterprise Leasing of Kansas. That error was not corrected in pre-suit discussions with defendants representative but defendant Enterprise Leasing of Kansas knew or should have known that but for that mistake the action would have been brought against it. In fact Enterprise Rent-A-Car raised the issue of identity in its original motion for removal asserting that plaintiff intended to sue the Kansas corporation of Enterprise Leasing in its lawsuit. Plaintiff believes there is an identity of interests between the two corporations. Defendant has received such notice of the institution of this action within the applicable statute of limitations that it will not be prejudiced in maintaining its defense.
6. Plaintiff would further move for permission to amend process under FED.R.CIV.P. 4(l) to show service upon defendant Enterprise Leasing of Kansas, a Kansas corporation, c/o The Corporation Company, Inc. at 515 S. Kansas Avenue, Topeka, Kansas 66603 from service upon Enterprise Rent-A-Car at 515 S. Kansas Avenue, Topeka, Kansas 66603.
WHEREFORE, plaintiff prays that the above-pleaded relief be ordered and entered of record and that he be granted leave to file the attached first amended petition and to amend process.
FIRST AMENDED PETITION
Comes now plaintiff and for his petition against defendants, and each of them, state:1. Plaintiff is and at all times material to this action a citizen and resident of Saint Charles, Illinois.
2. Defendant Freeman is and at all times material to this action a citizen and resident of Kansas and defendant Enterprise Leasing of Kansas is a Kansas corporation engaged in renting vehicles to the public and is authorized to do business in Kansas.
3. On November 11, 1999, plaintiff Timothy Freeman was lawfully operating a 1999 Ford Taurus automobile ("Taurus") eastbound on I-70 in Bonner Springs, Wyandotte County, Kansas; and stopped at a Kansas Turnpike Authority tollbooth when a 1999 Ford Taurus ("Ford Taurus") operated by defendant Harry J, Freeman, suddenly and without warning struck the rear of plaintiff's Taurus.
4. At all times material to this action defendant Enterprise was the owner of the Taurus vehicle operated by defendant Freeman who was their agent or to whom they negligently entrusted the vehicle.
5. The crash was caused by defendant Harry J. Freeman's negligence and carelessness including; driving the Ford Taurus at an unreasonable speed under the conditions and hazards then existing; driving the Ford Taurus at an unsafe and inappropriate speed when special hazards existed; failure to keep the Ford Taurus under proper control; failure to keep a proper lookout; and failure to warn plaintiff of the impending danger.
6. As a direct and proximate result of the crash plaintiff was seriously and permanently injured and disabled, and has been damaged.
7. Plaintiff is and at all times material to this action was married to Susan Freeman; as a direct and proximate result of plaintiff's injuries and the loss or impairment of plaintiff's ability to perform services in the household and discharge his domestic duties, and the loss or impairment of plaintiff's companionship, aid, assistance, comfort and society, Susan Freeman has been damaged.
WHEREFORE, plaintiff prays judgment against defendant, for money damages in excess of $75,000.00; costs; and such other and further relief as the court deems fair, just and equitable.