Opinion
Case No. 02-4146-SAC.
July 8, 2004
MEMORANDUM AND ORDER
This breach of contract case, originally filed in state court, was removed to this court by UCB Films, Inc. ("UCB") on the basis of diversity jurisdiction. The case comes before the court on the counterclaim defendant's motion to dismiss it from the case for insufficient service of process.
In support of its motion to dismiss, the counterclaim defendant alleges that it is not "doing business" in Kansas, as defined in § 17-7303, thus UCB's attempt to serve it by substitute service on the Kansas Secretary of State is ineffective. In response, UCB contends that the counterclaim defendant was "transacting business" in Kansas for purposes of KSA § 60-304(f) such that service on the Secretary of State was effective. In the alternative, UCB contends that if service was not effective pursuant to KSA § 60-304(f) by service upon the Secretary of State, it became effective pursuant to KSA § 60-308(e) when the Secretary of State subsequently delivered the summons and complaint to the counterclaim defendant. Lastly, UCB alleges that the proper remedy for improper service, if any, is not to dismiss, but to allow it an opportunity to cure.
After the motion to dismiss was briefed, UCB requested and the court granted it leave to file supplemental authority. In its supplemental brief, UCB correctly notes that an attorney for the counterclaim defendant entered his appearance in this case before filing any responsive pleading or motion to dismiss, and without raising the defense of insufficient service of process. UCB contends that this entry of appearance has the same effect as service. The court examines this issue first.
The record confirms that counsel for the counterclaim defendant filed a standard entry of appearance on March 2, 2004, without joining any other motions and without stating any defenses therein. Dk. 69. The counterclaim defendant first raised the possibility of insufficient service of process as a defense one week later in its response to a motion for default judgment, filed March 9, 2004. Dk. 72. The instant motion to dismiss followed on April 12, 2004. Dk. 79. UCB argues that the counterclaim defendant's formal entry of appearance satisfied the service requirement, bringing it within the personal jurisdiction of the district court prior to any objection to service.
Kansas law governs the question of effectuation of service raised in this case. See, e.g., Walker v. Armco Steel Corp., 446 U.S. 740, 751-53 (1980); see also Fed.R.Civ.P. 4(e). Under Kan. Stat. Ann. § 60-203(c), "[t]he filing of an entry of appearance shall have the same effect as service." UCB contends that the statute means what it says.
Case law fully supports UCB's position. The Tenth Circuit has confirmed, under Kansas law, that ". . . because filing an entry of appearance effects service under § 60-203(c), once counsel formally took such action on defendants' behalf prior to any responsive pleading, defendants could not thereafter contest the sufficiency of service by answer or motion." Jenkins v. City of Topeka, 136 F.3d 1274, 1275-76 (10th Cir. 1998), reversing 958 F. Supp. 556 (D. Kan. 1997) (which denied § 60-203(c) its "literal reading"). See Burdett v. Harrah's Kansas Casino Corp., 311 F. Supp.2d 1166 (D. Kan. 2004) (overruling motion to dismiss for insufficiency of process where defendant voluntarily entered its appearance then waived any defense as to insufficiency of service by not including the defense in its motion to dismiss); Raytheon Aircraft Credit Corp. v. Starship Enterprises, Inc., 1998 WL 166582, *2 (D. Kan. 1998) (holding entry of appearance effected valid service of process upon the defendant pursuant to § 60-203(c)); Fink v. Swisshelm, 182 F.R.D. 630, 631-632 (D. Kan. 1998) (finding sufficient service based on defendant's entry of appearance by filing a notice of removal); Burnett v. Perry Mfg., Inc., 151 F.R.D. 398, 401 n. 1 (D. Kan. 1993) (stating entry of appearance, under K.S.A. 60-203(c), has the same effect as service.); Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964, 978 (1994); Dotson v. State Highway Comm'n, 198 Kan. 671, 426 P.2d 138, 143 (1967) (holding written entry of appearance submits defendant to jurisdiction of court and is equivalent to service of process). See also Pennoyer v. Neff, 95 U.S. 714, 725 (1877) (court may acquire personal jurisdiction through service of process or voluntary entry of appearance).
Although this court has previously held that entry of appearance by defendant's attorney did not have same effect as service, Wheaton v. Ahrens, 983 F. Supp. 970 (D. Kan. 1997), that ruling would be different today, given the intervening reversal of Jenkins by the Tenth Circuit. See Wheaton, 983 F. Supp. at 976 (noting Jenkins was "currently on appeal," and stating: "For purposes of Ahrens' motion, the court assumes without deciding that [ Jenkins] is correct. Consequently, Ahrens' attorney's entry of appearance does not have the same effect as service.")
The counterclaim defendant contends that the entry of appearance did not "waive the defense of insufficiency of process." But the issue in this case relates to effectuation of sufficient service, not waiver of insufficient service. "Effectuation of service is a precondition to suit, while waiver of insufficient service is the forfeiture of defense to that service." Jenkins, 136 F.3d at 1275. Jenkins rejected a similar claim, stating:
. . . once counsel formally took such action on defendants' behalf prior to any responsive pleading, defendants could not thereafter contest the sufficiency of service by answer or motion — but this had nothing to do with defense preservation/waiver under Rule 12. A defense cannot be preserved or waived unless it exists, and, with service already accomplished under § 60-203(c), there was no insufficient-service defense to "preserve" when defendants responded to the complaint.
Accordingly, we hold that service of process was properly effected pursuant to § 60-203(c) . . . when counsel entered his appearance on defendants' behalf.Jenkins, 136 F.3d at 1276.
The counterclaim defendant additionally attempts to distinguish Jenkins both legally and factually, but the court finds the distinctions immaterial. It additionally contends that application of Jenkins would raise practical problems for counsel, who would be placed in the untenable position of having to let a default judgment be taken against their client, or enter an appearance at risk of forfeiting a valid defense. These are not, however, the only options available to counsel.
The entry of appearance on March 2, 2004, had the same effect as service. Accordingly, it is unnecessary to address the other issues raised in support of the motion to dismiss.
IT IS THEREFORE ORDERED that the counterclaim defendant's motion to dismiss for insufficient service of process (Dk. 79) is denied.