Opinion
Case No. 02-2032-JWL
March 27, 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.