Wallace v. Microsoft Corp.

• Citation: 563 F.Supp.2d 1197
• Decision Date: 27 June 2008
• Docket Number: No. 07-2379-JTM.,07-2379-JTM.
• Parties: Peter M. WALLACE, Plaintiff, v. MICROSOFT CORPORATION, Defendants.
• Court: U.S. District Court — District of Kansas

563 F.Supp.2d 1197

Peter M. WALLACE, Plaintiff, v. MICROSOFT CORPORATION, Defendants.

No. 07-2379-JTM.

United States District Court, D. Kansas.

June 27, 2008.

COPYRIGHT MATERIAL OMITTED

A.J. Kotich, G.H. Griffeth, Topeka, KS, Douglas A. Hager, Valley Falls, KS, for Plaintiff.

Courtney Anne Hasselberg, Michael L. Blumenthal, Seyferth Blumenthal & Harris LLC, Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

This is an action by Peter Wallace against his former employer, Microsoft Corporation. Wallace alleges that he was injured in January of 2004, when he fell on a public sidewalk while walking to a company meeting in Chicago, Illinois. After some period off work, Wallace alleges that he returned with medical restrictions which Microsoft refused to accommodate, placed him on leave without pay status, and finally terminated his employment in May of 2005. Wallace raises claims for retaliatory discharge, breach of employment contract, outrage, and several statutory claims.

Wallace began this action against Microsoft in the District Court of Johnson County on May 18, 2007. Microsoft removed the action to this court on August 15, 2005. There are two motions before the court. First, Wallace has moved to remand the case, arguing that the removal was untimely. Second, Microsoft has moved to dismiss certain elements of Wallace's Petition.

For purposes of resolving the motions before the court, no substantial factual controversy exists as to the timing of the pleadings in 2007. As noted earlier, Wallace filed his Petition against Microsoft in the District Court of Johnson County on May 18, 2007. On May 23, the state court docket notes: "REQUEST AND SERVICE INSTRUCTION FORM, SUMONS AND PETITION ISSUED TO THE PROCESS SERVER AT THE FRONT COUNTER." (Def.Exh.B). Later, counsel for Wallace filed a return of service indicating personal service on the resident agent Corporation Service Company on June 28, 2007. However, Wallace served only the Petition, not a copy of the summons. (Dft.Exh.l). Microsoft acknowledged service of the Petition on June 28, 2007.

On or about July 10, 2007, Microsoft's counsel contacted Wallace's counsel requesting an extension of time to file responsive pleadings. Counsel for Wallace agreed to the extension. Microsoft asked for another extension on August 13, 2007.

On August 15, 2007, Microsoft served its Notice of Removal upon Plaintiff, raising for the first time the issue of service. Microsoft states that its earlier requests for extension were purely pro forma requests while the parties discussed settlement of the action, and that at no time did counsel waive any required service of process. (Def.Exh.2).

On August 29, 2007, Wallace again served Microsoft's designated resident agent with a copy of the petition and summons from the Johnson County District Court. On September 13, 2007, Wallace served Microsoft's resident service agent with a copy of the petition and summons under the current federal caption.

Thirty days from June 28, 2007, (not counting the day of service), is July 28, 2007.

Motion to Remand

The plaintiff contends that removal here is untimely, because it occurred more than a month after the June 28 service of the state court Petition, which represented "substantial compliance" with Kansas laws governing service of process. The plaintiff contends that the thirty-day time limit for removal began from that date, and seeks to distinguish decisions such as that of this court in Liebau v. Columbia Casualty Company, 176 F.Supp.2d 1236 (2001). See also Jenkins v. MTGLQ Investors, 218 Fed.Appx. 719, 724 (10th Cir.2007).

Under 28 U.S.C. § 1446(b),

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). There, the Court held that "the defendant's period for removal will be no less than 30 days from service, and in some categories, it will be more than 30 days from service, depending on when the complaint is received." Id., 526 U.S. at 354, 119 S.Ct. at 1328.

The plaintiff argues that Liebau is not binding here because of a change in the law. In Liebau, the court noted that service had been obtained under K.S.A. 40-218, and that "Kansas law requires strict compliance with statutory service require; ments before service may be considered valid," 176 F.Supp.2d at 1241, citing Board of Com'rs of Butler County v. Black, Sivalls & Bryson, 169 Kan. 225, 227, 217 P.2d 1070, 1072 (1950). Kansas now only requires substantial compliance with service of process requirements. Myers v. Board of County Com'rs of Jackson County, 280 Kan. 869, 877, 127 P.3d 319 (2006).

Plaintiff also argues that the 30-day period should also be considered to have commenced with the service of the Petition under the language of removal statute, 28 U.S.C. § 1446(b), as well as the decision of the Supreme Court in Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 348, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999).

The court finds that the present action was timely removed. The general acceptance of substantial compliance has not altered the basic rule requiring service of summons as prerequisite for exercise of jurisdiction over a defendant. Thus, in Myers, the Kansas Supreme Court explicitly cited with approval the earlier ruling in Chee Craw Teachers Ass'n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979) as an "example of how substantial compliance applies to the serving of a summons." Myers, 280 Kan. at 876, 127 P.3d at 324. Plaintiff has cited to no authority finding that the time period for removal commences even in the absence service of a summons.

In contrast, Kansas law has emphasized the importance of such service. Thus, in Coo/i; v. Cook, 32 Kan.App.2d 214, 222, 83 P.3d 1243 (2003), rev. denied, 277 Kan. 923 (2004), the court held that there was no substantial compliance where there was an absence of service of the summons. The absence of the summons, the court held, was "not merely irregular or defective but was a nullity." 32 Kan.App.2d at 222, 83 P.3d at 1248. The court stressed further that the fact that the defendant "had actual knowledge of the suit and did not suffer prejudice does not mean that there was substantial compliance with K.S.A. 60-204". Id.

On this issue, there is no divergence between state and federal law. Whether under state or federal law, it is the service of summons that authorizes the court's jurisdiction over the defendant. The Supreme Court has held that "a named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, `through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 348, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). This court reached a similar conclusion in Ortiz v. Biscanin, 190 F.Supp.2d 1237, 1243 (D.Kan.2002), noting that Murphy rejected the view "that receipt of the complaint alone, prior to service, suffices to begin the thirty-day period."

In his reply, plaintiff attempts to distinguish both Cook, by stressing that the court there reiterated the rule merely required substantial compliance with service of process, and Murphy, but emphasizing language from the Supreme Court that the time for removal is triggered "not by mere receipt of the complaint unattended by any formal service," in combination with the fact that in that case the plaintiff did not even attempt to follow formal procedures for services.

These attempts at distinguishing the cited cases are unpersuasive. With respect to Murphy, the "formal service" emphasized by plaintiff, clearly refers in context to some formal service of the summons:

Accordingly, we hold that a named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, "through service or otherwise," after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.

526 U.S. at 347-8, 119 S.Ct. 1322.

Similarly, the court does not find that Cook supports plaintiffs argument. Along with the general observation by the Court of Appeals in that case that the standard is one of "substantial compliance" with the requirements for service, is the specific observation that the failure of the service of the summons was not substantial compliance because of the essential nature of the summons—its absence was "not merely irregular or defective but was a nullity." 32 Kan.App.2d at 222, 83 P.3d at 1248.

Next, Plaintiff also cites Baumeister v. New Mexico Comm. for the Blind, 409 F.Supp.2d 1351 (D.N.M.2006). However, Baumeister did not deal with the timing for removal under § 1446, but with the separate question of whether a defendant could obtain dismissal of a an action which was timely removed but lacked valid service of process. The ruling does not displace the holdings such as Liebau and Ortiz that the clock for removal does not commence in the absence of a valid summons.

Finally, Wallace suggests that his action against Microsoft should nonetheless be deemed to have begun on June 28, 2007, pursuant to K.S.A. 60-203(b). This statute provides;

If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced at the applicable time under subsection (a) if valid service is obtained or first publication is made within 90 days after that...