Meyer v. Jeffrey Fink & Metro. Grp. Prop. & Cas. Ins. Co., Case No. 5:14-CV-4074-JTM-GLR
| Decision Date | 29 October 2014 |
| Docket Number | Case No. 5:14-CV-4074-JTM-GLR |
| Parties | WESSEL H. MEYER, Individually and as Administrator of the Estate of Maritius A. Meyer, and MARTHA MEYER, Plaintiffs, v. JEFFREY FINK and METROPOLITAN GROUP PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants. |
| Court | U.S. District Court — District of Kansas |
Plaintiff Wessel H. Meyer, individually and as administrator of the estate of Maritius A. Meyer, and plaintiff Martha Meyer (collectively "plaintiffs") seek to enforce an Order of Garnishment, issued by the District Court of Riley County, Kansas, against defendant Metropolitan Group Property and Casualty Insurance Company ("defendant").1 This matter is currently before the court on plaintiffs' Motion to Remand the action to state court. For the reasons stated below, plaintiffs' motion is granted.
This case arises out of a fatal automobile accident. On November 16, 2008, Myles Runyon ("Runyon") was operating a 1999 GMC pickup truck westbound on Interstate 70 near mile marker 318. Nominal defendant Jeffrey Fink ("Fink") and plaintiffs' son, Maritius Meyer ("Maritius") were passengers in Runyon's truck. At some point, Runyon lost control of the truck, which subsequently left the highway and overturned. Maritius sustained substantial and fatal injuries and died the next morning.
Plaintiffs initially made a claim against Runyon, alleging that it was his negligence, as the driver of the vehicle, that led to Maritius' death. Dkt. 5, at 2. They submitted a claim to defendant, Runyon's auto insurer, for wrongful death. Dkt. 9, at 2. After its own investigation of the accident, defendant entered into a settlement with plaintiffs, agreeing to pay $250,000, the maximum per person payout of Runyon's insurance policy. Dkt. 9, at 2-3. In exchange for this payment, plaintiffs signed a "Full and Final Release of All Claims and Idemnitifcation Covenant." Dkt. 5, at 2. The settlement specifically preserved plaintiffs' right to maintain a claim against Fink. Dkt. 9, at 3.
On November 12, 2013, plaintiffs filed a wrongful death and survival action against Fink in the District Court of Riley County, Kansas. Dkt 1-1. Plaintiffs allege that, while Runyon was driving, Fink took control of the vehicle by shifting the truck out of "drive" and into "park," ultimately causing the fatal accident. Dkt. 1-1, at 12. During the course of litigation, plaintiffs and Fink entered into a settlement whereby plaintiffs agreed to satisfy any judgment they received against Fink by filing a garnishment against defendant. Dkt. 5, at 2-3.2 On December27, 2013, the Riley County Court entered judgment in favor of plaintiffs in the amount of $428,356.48 and issued the Order of Garnishment at issue in the present matter. Dkt. 9, at 4.
Plaintiffs served defendant with the garnishment order on July 7, 2014. Dkt. 12, at 3. On August 8, 2014, defendant filed a Notice of Removal in the United States District Court for the District of Kansas. Dkt. 1. Plaintiffs filed the pending Motion to Remand on September 4, 2014, on the grounds that defendant's removal was untimely. Dkt 10. Defendant contests the motion, arguing that its removal could not be untimely because it was never actually served with the Order of Garnishment. Dkt. 13.
" Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552 (2005) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). "Except as otherwise provided . . . any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant . . . to the district court . . . ." 28 U.S.C. § 1441(a). The procedures for removal are governed by 28 U.S.C. § 1446, which provides, in part:
28 U.S.C. § 1446 (emphasis added).
A court is required to remand "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). "In addition to lack of subject matter jurisdiction, defects in the removal procedure are grounds for remand." McDonald v. BAM, Inc., 2013 U.S. Dist. LEXIS 29176, at *2 (D. Kan. Mar. 5, 2013) (citing 28 U.S.C. § 1447(c)); see also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996), Henderson v. Holmes, 920 F. Supp. 1184, 1186 (D. Kan. 1996). "Procedural defects include a deficient or untimely notice of removal . . . ." McDonald, 2013 U.S. Dist. LEXIS 29176, at *2 (citing SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578, 580 (10th Cir. 1997)). "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of notice of removal under 1446(a)." 28 U.S.C. § 1447(c). "Removal statutes are to be strictly construed, and all doubts are to be resolved against removal." Soule v. LMZ, LLC, 2013 U.S. Dist. LEXIS 48470, at *4-5 (D. Kan. Apr. 2, 2013) (quoting Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982)).
Plaintiffs seek remand on the grounds that defendant's removal was untimely, filed two days after the statutory deadline set forth in 28 U.S.C. § 1446(b), on August 8, 2014. Defendant does not contest that it filed for removal on August 8, 2014. Rather, it argues that the thirty-day period had not yet begun to run when it filed for removal because plaintiffs failed to effect proper service. The court disagrees.
In general, service may be made upon a foreign corporation by doing any of the following:
K.S.A. § 60-304(e). Service may also be made by return receipt delivery on an officer, partner, or agent of the foreign corporation and must be addressed to that person at his or her usual place of business. Id. In instances where one of the parties is an insurance company or association, the general Kansas rules also allow service of summons or other process to be made "by serving the commissioner of insurance in the same manner as provided for service on foreign insurance companies or associations." K.S.A. § 60-304(g).
K.S.A. § 60-732(b). The record shows that plaintiffs served defendant with the Order of Garnishment via return receipt delivery on July 7, 2014, pursuant to K.S.A. §§ 60-304(e) and 60-732(b). Dkt. 12, at 3.3 Accordingly, defendant had thirty days, until August 6, 2014, to seek removal to this court. 28 U.S.C. § 1446(b). Defendant did not seek removal until August 8,2014. Dkt. 1. Given this procedural defect, remand is warranted. See McDonald, 2013 U.S. Dist. LEXIS 29176, at *2.
Defendant counters, however, that plaintiffs' service of process should have been made pursuant to the provisions of the Kansas Insurance Code, K.S.A. § 40-218, which reads as follows:
Actions and garnishment proceedings against insurance companies; process, venue; procedure; fee; record of commissioner. Every insurance company . . . on applying for authority to transact business in this state, and as a condition precedent to obtaining such authority, shall file in the insurance department its written consent, irrevocable, that any action or garnishment proceeding may be commenced against such company . . . in the proper court of any county in this state in which the cause of action shall arise or in which the plaintiff may reside by the service of process on the commissioner of insurance of this state, and stipulating and agreeing that such service shall be taken and held in all courts to be as valid and binding as if due service had been made upon the president or chief officer of such corporation.
K.S.A. § 40-218 (emphasis added). Defendant argues that this language requires plaintiffs to have served the commissioner of insurance with the garnishment order, not defendant itself. The court disagrees.
First and foremost, a plain reading of the statute makes clear that service upon the commissioner of insurance is merely an alternative to those methods listed in K.S.A. § 60-304(e). While § 40-218 absolutely requires an insurance company, as a condition precedent to doing business in the state of Kansas, to register its written, irrevocable consent allowing the commissioner to serve as its registered agent, it does not stipulate that service upon the commissioner is the only means by which an insurance...
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