Vandeventer v. Guimond

• Citation: 494 F.Supp.2d 1255
• Decision Date: 10 July 2007
• Docket Number: No. 07-4018-JAR.,07-4018-JAR.
• Parties: John VANDEVENTER, as personal representative of the Estates of Elisse Vandeventer and Marissa Vandeventer, John Vandeventer, individually, and Shellee Vandeventer, individually, Plaintiffs, v. Dale GUIMOND, and Board of County Commissioners of Coffey County, Kansas, Defendants.
• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

494 F.Supp.2d 1255

John VANDEVENTER, as personal representative of the Estates of Elisse Vandeventer and Marissa Vandeventer, John Vandeventer, individually, and Shellee Vandeventer, individually, Plaintiffs, v. Dale GUIMOND, and Board of County Commissioners of Coffey County, Kansas, Defendants.

No. 07-4018-JAR.

United States District Court, D. Kansas.

July 10, 2007.

James L. Wisler, Wisler Law Offices, Lawrence, KS, Jeffrey C. Jones, Krutch Lindell Bingham Jones & Petrie PS, Seattle, WA, for Plaintiffs.

James P. Nordstrom, Steven R. Fabert, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER GRANTING MOTION TO REMAND

ROBINSON, District Judge.

This case was originally filed by plaintiffs in Franklin County, Kansas District Court and was removed by defendant Board of County Commissioners of Coffey County, Kansas ("the Board") to this Court on February 5, 2007. Currently, the following motions are pending before the Court: (1) Plaintiffs' Motion to Remand (Doc. 9); (2) Defendant Guimond's Objection to Order of Magistrate Judge (Doc. 24); (3) Defendant Guimond's Motion to Dismiss (Doc. 28); (4) Defendant Board of County Commissioners of Coffey County Kansas's Motion to Dismiss (Doc. 29); (5) Defendants' Motion to Certify Questions of Law (Doc. 30); (6) Plaintiffs' Motion to Stay Case Pending Court's Decision on Plaintiffs' Motion for Remand (Doc. 32); (7) Motion for Extension of Time to File Response as to Motion to Dismiss; (8) Plaintiffs' Motion for Extension of Time to Respond to Guimond and Coffey County Defendants' Motions to Dismiss and for Consolidated Discovery Conference with Related Federal Case (Doc. 40); and (9) Defendants' Unopposed Motion for Extension of Time to File Reply as to Motion to Dismiss (Doc. 46). As described more fully below, the Court grants plaintiffs' motion to remand. Accordingly, the remaining motions are denied as moot.

I. Background

This wrongful death and survival action was filed by the father and stepmother of two young girls who were killed in a plane crash on November 23, 2003, off the coast of Oregon. Plaintiffs allege that the plane crash was caused by a defective vacuum pump that should have been removed and replaced. Defendant Dale Guimond was alleged to have negligently inspected the aircraft and certified that it was airworthy, as an employee of Coffey County Airport.

This case has a tortured history that the Court will endeavor to detail. Plaintiffs originally filed this case in Franklin County, Kansas District Court against Burkdoll Construction L.L.C., Clint Burkdoll, and Dale Guimond on November 23; 2005. Summons were issued to all three defendants and the Burkdoll defendants were both served on January 26, 2006.¹ At some point, counsel for plaintiffs contacted counsel for Guimond to determine the proper entity that employed Guimond, believing that airport authorities are separate entities in Kansas. Guimond's counsel declined to clarify for plaintiffs' counsel the appropriate party to name in the Amended Petition as Guimond's employer. The original petition includes the following allegations against Guimond:

On June 11, 2002, subsequent to the installation by Dodson of the subject vacuum pump, Defendant Dale M. Guimond, an FAA certified air frame and power plant mechanic, was hired or otherwise retained by Defendants Burkdoll to perform, and did perform, an annual maintenance and inspection on N10BX pursuant to Federal Aviation Regulations.... [and] represented in the aircraft log that he had inspected said aircraft, and that that [sic] it was airworthy and approved for return to service. In conducting said annual inspection and maintenance, Defendant Guimond negligently failed to take any action relating to said vacuum pump including, but not limited to, inspecting or replacing said vacuum pump, nor did ne note in the aircraft logs nor advise the aircraft owner of the apparent inability to determine the age, hours, or condition of the vacuum pump and the lack of documentation thereof. At all times during said annual maintenance and inspection Defendant Guimond had available to him the aircraft logs which revealed that the vacuum pump which was installed by Dodson was described only as "serviceable," without any indication as to the number of hours which had been accumulated on said part. Based upon Defendant Guimond's background, training and experience, Guimond knew or should have known that this was an indication that the part was likely installed in a used condition, and that the age and number of hours of the part could not be determined. Further, at the time of the inspection, Dale Guimond knew or should have known that the aircraft should not be flown if the age, condition, and time in service of the vacuum pump could not be determined. Guimond further knew or should have known at the time of inspection that due to the condition and lack of documentation of the vacuum pump, the subject aircraft was not airworthy at the time of the inspection and dangerous to fly.²

On June 22, 2006, plaintiffs' motion to amend the petition was granted and the Amended Petition added the following defendants: (1) Coffey County; (2) Coffey County Airport; (3) Coffey County Airport District and/or (4) Coffey County Airport Authority (collectively "the County defendants"). The substance of the original petition was not otherwise substantially amended. Service was effected on Coffey County by certified mail delivery to the Coffey County Clerk on July 5, 2006. On August 7, 2006, Guimond and the Coffey County defendants filed a motion to dismiss. The motion was based on the following arguments: (1) the Kansas Tort Claims Act's ("KTCA") immunity provisions bar any claims against these defendants; and (2) all claims are barred by the statute of limitations because service of process had not been achieved. Specifically, they argued that there had never been an attempt to serve Guimond,³ and that the Coffey County defendants were inappropriate parties to the suit under K.S.A. § 19-105, requiring suit against a "subordinate agency of a Kansas County [to be] brought against the Board of County Commissioners of that county." On August 28, 2006, plaintiffs attempted to serve Guimond in Waterloo, Iowa, where he appeared for a deposition in related litigation. The County defendants and Guimond objected to the validity of that service under K.S.A. § 12-105b in a supplemental motion to dismiss. On September 19, 2006, a special process server was appointed by the court and on the same day she personally served Guimond, which was objected to as untimely.

On October 10, 2006, plaintiffs filed a motion for leave to file a second amended petition, removing the County defendants listed in the First Amended Petition and adding the Board of County Commissioners of Coffey County, Kansas. On November 3, 2006, a return of summons was filed stating that Guimond was served the Amended Petition on October 27, 2006.

The hearing on the motion to dismiss was before the Honorable James J. Smith on December 12, 2006. Also on that day, the Burkdoll defendants were voluntarily dismissed from the case by plaintiffs. At the hearing, the court declined to rule on the motion to dismiss on statute of limitations grounds, based on the service arguments. Instead, the court granted the motion to file a second amended petition to change the name of the County defendants and noted that more discovery was needed on the issue of service on Guimond. The Court denied the motion to the extent defendants sought immunity under the KTCA. The parties were to draft a Journal Entry memorializing Judge Smith's ruling, but it was never filed. On January 16, 2007, the Second Amended Petition was filed, naming the Board as a defendant. This petition was served on the Board by certified mail to the Coffey County Clerk on January 17, 2007. On January 18, 2007, a Third Amended Petition was filed, correcting a scrivener's error in the Second Amended Petition.

Counsel for the parties each filed an affidavit with their briefs, discussing the decision to ultimately remove this case to federal court on February 5, 2007. Counsel agree that during a December 7, 2006 telephone conversation, plaintiffs' local counsel, James Wisler, represented to Steven Fabert, counsel for the County and Guimond, that he was concerned that once the Burkdoll defendants were dismissed, the Board would have grounds for a successful motion to change venue to the Coffey County District Court. Wisler represented that he would rather have the case removed to federal court than to have it moved to Coffey County after Judge Smith ruled on the pending motions, including the motion to dismiss. Wisler proposed to Fabert that if he would agree not to transfer venue to Coffey County, Wisler would not remove the case before Judge Smith could rule on the motion to dismiss at the December 12 hearing.⁴ Wisler maintains that this offer remained open only until the date of the motions hearing and that because Fabert never advised him otherwise, the hearing proceeded. Wisler affirms that his client no longer had an incentive for removal after Judge Smith ruled, and complains that the Notice of Removal was filed with no prior consultation.

Fabert attests that he did not consult with Wisler before filing the notice of removal because Wisler had expressed his preference for federal court during that conversation, and Fabert believed removal would be welcomed by plaintiffs. Fabert maintains that this impression of plaintiffs' position on the issue was a "significant consideration" in deciding to file the notice of removal. Because Fabert was aware that the time period for filing a notice of removal based on diversity had passed,⁵ he wrote a letter to the Attorney General and to the United States Attorney, on behalf of Guimond, invoking his rights under the Westfall Act.⁶ This letter states in part:

Please consider this letter to be a ...