Cessna Finance Corporation v. VYWB, LLC et al, No. 6:2013cv01311 - Document 18 (D. Kan. 2013)
Court Description: MEMORANDUM AND ORDER denying 11 Motion to Remand to State Court. Signed by U.S. District Senior Judge Sam A. Crow on 11/13/2013. (mb)
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Cessna Finance Corporation v. VYWB, LLC et al Doc. 18 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS CESSNA FI NANCE CORPORATI ON, Plaint iff vs. Case No. 13- 1311- SAC VYWB, LLC and PARMJI T S. PARMAR, Defendant s. MEMORANDUM AND ORDER The plaint iff Cessna Finance Corporat ion ( “ Cessna” ) filed a t wocount pet it ion in t he Dist rict Court of Sedgwick Count y, Kansas, t o recover am ount s due from t he defendant VYWB, LLC on t wo not es and am ount s due from t he defendant Parm j it S. Parm ar ( “ Parm ar” ) on t wo guarant ies. The defendant Parm ar filed a not ice of rem oval on August 22, 2013, in which he assert s t hat not unt il July 23, 2013 did he receive not ice of t he st at e court act ion or receive not ice of t he st at e court sum m ons and pet it ion. ( Dk. 1, ¶¶ 13 and 14) . I n his at t ached affidavit , Parm ar avers t hat while Cessna’s ret urn on service shows delivery t o his residence on June 25, 2013, he was not at his residence on t his day nor was anyone t here who was aut horized t o act as his agent . ( Dk. 1- 4, ¶¶ 3 and 6) . Parm ar furt her avers t hat he first learned on July 23, 2013, of t he Unit ed Parcel Service ( “ UPS” ) package left at his residence in his absence and im m ediat ely direct ed t hat t he package be opened. I d. at ¶ 7. At which t im e, he was m ade aware of Cessna’s Dockets.Justia.com docum ent s m aking legal claim s against him . I d. at ¶ 8. Thus, Parm ar assert s his not ice of rem oval was filed wit hin t he 30 day- period required in 28 U.S.C. § 1446( b) . ( Dk. 1, ¶ 18) . The plaint iff Cessna m oves t o have t he act ion rem anded arguing t hat Parm ar’s not ice was unt im ely filed m ore t han 30 days “ aft er t he init ial pleading was received t hrough service of process.” ( Dk. 12, p. 1) . Cessna’s counsel’s legal secret ary avers she caused a copy of Cessna’s filed sum m ons and pet it ion “ t o be given t o t he Unit ed Parcel Service for Ground Service delivery” and “ request ed em ail not ificat ions and delivery confirm at ion wit h adult signat ure required.” ( Dk. 12, p. 7, Ex. A) . Cessna’s counsel signed t he “ Ret urn on Service” and at t ached t he UPS elect ronic receipt showing t he pet it ion and sum m ons were delivered t o Parm ar’s residence at “ 19 Colt s Gait Ln, Colt s Neck, New Jersey” and an adult , “ PAFMAR” signed for it . ( Dk. 1- 2, pp. 3- 6) . Thus, Cessna’s at t orney cert ified t hat he had served t he “ Pet it ion and Sum m ons upon Parm it S. Parm er, individually, and as a m em ber of VYWB, LLC, by Unit ed Parcel Service Ground Delivery on June 25, 2013.” ( Dk. 1- 2, pp. 3) . As not ed, § 1446( b) requires t he not ice of rem oval t o “ be filed wit hin 30 days aft er t he receipt by t he defendant , t hrough service or ot herwise, of a copy of t he init ial pleading . . ., or wit hin 30 days aft er t he service of sum m ons upon t he defendant if such init ial pleading has t hen been filed in court . . ., whichever period is short er.” The Suprem e Court has 2 const rued § 1446( b) as requiring form al service and not “ m ere receipt .” Murphy Bros., I nc. v. Michet t i Pipe St ringing, I nc., 526 U.S. 344, 347- 48 ( 1999) . Not ably, t he Court looked t o st at e law on t he quest ion of “ form al service,” but it rem arked t hat § 1446( b) was int ended t o cure som e disparat e st at e pract ices and “ [ t ] o ensure t hat t he defendant would have access t o t he com plaint before com m encem ent of t he rem oval period.” I d. at 351, 353. Having lim it ed j urisdict ion, federal court s em ploy a presum pt ion “ against rem oval j urisdict ion.” Laughlin v. Km art Corp., 50 F.3d 871, 873 ( 10t h Cir.) , cert . denied, 516 U.S. 863 ( 1995) . The part y seeking rem oval is given t he burden t o show t he propriet y of rem oval and t he exist ence of rem oval j urisdict ion. Ort iz v. Biscanin, 190 F. Supp. 2d 1237, 1241 ( D. Kan. 2002) ; see McNut t v. General Mot ors Accept ance Corp., 298 U.S. 178, 189 ( 1936) ; Baby C v. Price, 138 Fed. Appx. 81, 83- 84, 2005 WL 1377812 at * 2 ( 10t h Cir. 2005) . Federal court s st rict ly const rue rem oval st at ut es and resolve all doubt s in favor of rem and. See Ort iz v. Biscanin, 190 F. Supp. 2d at 1241. The failure t o file a not ice of rem oval wit hin t he st at ut ory requirem ent of t hirt y days renders t he rem oval defect ive and result s in rem anding t he case t o t he st at e court . Huffm an v. Saul Holdings Lt d. Part nership, 194 F.3d 1072, 1077 ( 10t h Cir. 1999) ; First Nat . Bank & Trust Co. in Great Bend v. Nicholas, 768 F. Supp. 788, 790 ( D. Kan. 1991) . Thus, it rest s wit h t he defendant t o dem onst rat e t hat his not ice of rem oval 3 was filed wit hin t he st at ut ory t hirt y- day period. As sum m arized above in t he opening paragraph, t he defendant Parm ar assert s and avers t hat he was not aware of and did not receive not ice of t he sum m ons and pet it ion unt il July 23, 2103, and t hat he filed his not ice of rem oval wit hin 30 days t hereaft er. The plaint iff Cessna ‘s m ot ion for rem and does not cont est t he fact s st at ed in Parm ar’s not ice of rem oval. Nam ely, Cessna does not challenge Parm ar’s averm ent s t hat neit her he nor any aut horized agent signed for t he UPS delivery on June 25, 2013. Cessna leaves uncont rovert ed Parm ar’s averm ent t hat he was not aware of Cessna’s lawsuit before July 23, 2103, when t he UPS package was opened and it s cont ent s were ident ified t o him . I nst ead, Cessna’s posit ion is t hat service under K.S.A. 60- 303( c) is “ deem ed perfect ed upon delivery of t he m ail, addressed t o t he person t o be served, regardless of whet her t he defendant act ually signs for t he package or personally accept s deliver.” ( Dk. 12, p. 5) ( it alics and bolding delet ed) . Thus, Cessna’s m ot ion t o rem and is based exclusively on t he proposit ion t hat Kansas law regards t he service by ret urn receipt delivery com plet e upon t he arrival of t he sum m ons and com plaint at Parm ar’s residence wit hout regard for whet her t he sum m ons and com plaint were received by t he addressee or an aut horized agent . Cessna seeks rem and arguing t hat neit her Parm ar nor his aut horized agent need t o receive t he ret urn receipt delivery t o t rigger t he 30- day rem oval. 4 The defendant Parm ar count ers t hat service under K.S.A. § 60303( c) requires delivery of t he sum m ons and pet it ion t o Mr. Parm ar and t hat t he elect ronic ret urn receipt fails t o ident ify a specific person having received t he delivery on June 25, 2013. The defendant avers t hat neit her he nor an aut horized agent received t he delivery at his residence on June 25, 2013, and t hat no person nam ed “ Parm ar” was at his residence on t hat day. ( Dk. 14- 2) . Against his affidavit , t he defendant Parm ar challenges t he elect ronic ret urn receipt as insufficient proof of valid service, because t he receipt fails t o specify t he ident it y of t he person receiving delivery. The defendant Parm ar also cont ends t hat service of process by ret urn receipt delivery m ust be “ t o t he part y addressed.” K.S.A. § 60- 303( c) ( 1) . The aut horit ies cit ed by t he plaint iff for delivery effect ive upon arrival at t he residence are dist inguishable based on t he st at ut ory t erm s and on t he fact s involved. The court ’s analysis begins wit h t he act ual t erm s of t he applicable Kansas st at ut es. Because plaint iff was serving t he defendant Parm ar at his residence in New Jersey, t he first st at ut e t o consider is K.S.A. 2012 Supp. § 60- 308( a) ( 2) ( B) , which provides in relevant part : The service of process m ust be m ade: . . . ( B) by a part y or t he part y’s at t orney pursuant t o subsect ion ( c) of K.S.A. 60- 303, and am endm ent s t heret o. No order of a court is required. The server m ust file an affidavit or declarat ion pursuant t o K.S.A. 53- 601, and am endm ent s t heret o, or any ot her com pet ent proof, st at ing t he t im e, m anner and place of service. The court m ay consider t he affidavit , declarat ion or any ot her com pet ent proof in det erm ining whet her service has been properly m ade. 5 The plaint iff Cessna assert s it relied on t he service of process available in K.S.A. 2012 Supp. § 60- 303( c) , and it s ret urn receipt delivery provisions which read: ( c) Service by ret urn receipt delivery. ( 1) Service of process m ay be m ade by ret urn receipt delivery, which is effect ed by cert ified m ail, priorit y m ail, com m ercial courier service, overnight delivery service or ot her reliable personal delivery service t o t h e pa r t y a ddr e sse d, in each inst ance evidenced by a writ t en or elect ronic receipt showing t o whom delivered, t he dat e of delivery, t he address where delivered and t he person or ent it y effect ing delivery. ( 2) The sheriff, part y or part y's at t orney m ust give t o t he person or ent it y effect ing delivery a copy of t he process and pet it ion or ot her docum ent in a sealed envelope, wit h post age or ot her delivery fees prepaid, addressed t o t h e pe r son t o be se r ve d in a ccor da n ce w it h K.S.A. 6 0 - 3 0 4 , and am endm ent s t heret o. ( 3) Service of process is obt ained under K.S.A. 60- 203, and am endm ent s t heret o, upon t he delivery of t he sealed envelope. ( 4) Aft er service and ret urn of t he ret urn receipt , t he sheriff, part y or part y's at t orney m ust execut e and file a ret urn of service. The ret urn of service m ust st at e t he nat ure of t he process, t o whom delivered, t he dat e of delivery, t he address where delivered and t he person or ent it y effect ing delivery. I t m ust include a copy of t he ret urn receipt evidencing delivery. ( 5) I f t he sealed envelope is ret urned wit h an endorsem ent showing refusal t o accept delivery, t he sheriff, part y or t he part y's at t orney m ay send a copy of t he process and pet it ion or ot her docum ent by first - class m ail, post age prepaid, addressed t o t he part y t o be served, or m ay elect ot her m et hods of service. I f m ailed, service is considered t o be obt ained t hree days aft er t he m ailing. Mailing m ust be evidenced by a cert ificat e filed wit h t he clerk. I f t he unopened envelope sent by first - class m ail is ret urned as undelivered for any reason, service is not obt ained and t he sheriff, part y or part y's at t orney m ust file an am ended cert ificat e wit h t he clerk indicat ing nondelivery. Mere failure t o claim t he sealed envelope sent by ret urn receipt delivery is not refusal of service wit hin t he m eaning of t his subsect ion. ( bolding added) . Because K.S.A. 2012 Supp. § 60- 303( c) ( 2) specifies t hat t he sealed envelope m ust be “ addressed t o t he person t o be served in 6 accordance wit h K.S.A. 60- 304,” t he court also m ust consider t his st at ut e t hat provides in relevant part : As used in t his sect ion, “ serving” m eans m aking service by any of t he m et hods described in K.S.A. 60- 303, and am endm ent s t heret o, unless a specific m et hod of m aking service is prescribed in t his sect ion. Except for service by publicat ion under K.S.A. 60- 307, and am endm ent s t heret o, service of process under t his art icle m ust be m ade as follows: I ndividual. On an individual ot her t han a m inor or a disabled person, by se r vin g t h e in dividu a l or by se r vin g a n a ge n t a u t h or ize d by appoint m ent or by law t o receive service of process. I f t he agent is one designat ed by st at ut e t o receive service, such furt her not ice as t he st at ut e requires m ust be given. Service by ret urn receipt delivery m ust be addressed t o an individual at t he individual's dwelling or usual place of abode and t o an aut horized agent at t he agent 's usual or designat ed address. I f t he sheriff, part y or part y's at t orney files a ret urn of service st at ing t hat t he ret urn receipt delivery t o t he individual at t he individual's dwelling or usual place of abode was refused or unclaim ed and t hat a business address is known for t he individual, t he sheriff, part y or part y's at t orney m ay com plet e service by ret urn receipt delivery, addressed t o t he individual at t he individual's business address. ( bolding added) . A plain reading of t hese provisions offers t he following. For service on individuals out side of Kansas, § 308 aut horizes t he service available under § 303( c) defined as t he ret urn receipt delivery of process effect ed by one of t he list ed services “ t o t he part y addressed.” Paragraph one of § 303( c) also requires t he serving part y t o provide a writ t en or elect ronic receipt evidencing cert ain det ails about t he service. Paragraph t wo specifies t hat t he process is t o be packaged in a sealed envelope “ addressed t o t he person t o be served in accordance wit h K.S.A. 60- 304.” Knowing what m et hod of service is allowed and what it generally const it ut es from § 7 60- 303, one t hen goes t o K.S.A. § 60- 304 t o confirm t he person on whom t he service m ust be m ade and t he locat ion for t hat service. See Rem m ers v. Brot herhood of Maint enance of Way Em ployees, 2012 WL 2449887 at * 2 ( D. Kan. 2012) ( “ K.S.A. § 60- 304 governs on whom service m ust be m ade.” ) . Sect ion 60- 304( a) specifies t he following. For an individual, service of process m ust be on t he individual part y or on t he part y’s aut horized agent . Service by ret urn receipt delivery “ m ust be addressed t o an individual at t he individual’s dw elling.” K.S.A. § 60- 304. Finally, if t he delivery sent t o t he dwelling “ was refused or unclaim ed,” t hen delivery m ay be m ade t o t he “ individual’s business address.” The plain t erm s of § 60- 303( c) and § 60- 304( a) do not define ret urn receipt delivery t o include a delivery t o t he properly addressed residence when t hat delivery was not t o t he addressee or t o t he addressee’s aut horized agent . There is no language in t hese provisions t hat defines service as being com plet e upon leaving a copy and of t he sum m ons and pet it ion at t he addressed residence wit hout regard for it s delivery t o t he addressee. 1 I nst ead, bot h provisions m ake unquest ionably plain t hat service 1 The plaint iff’s posit ion is akin t o what would be “ residence service” which is addressed at § 60- 303( d) . The plaint iff, however, em phat ically denies t hat it relied on t his provision in m aking service here. Dk. 12, p. 4. Frankly, t his begs t he quest ion of t he logic in t he plaint iff’s int erpret at ion of t hese provisions. What would be t he valid reason for t he Kansas legislat ure writ ing § 60- 303( c) t o allow residence service while om it t ing t he addit ional prot ect ions afforded by t he requirem ent s of § 60- 303( d) ( 1) ( B) for residence service? 8 is not com plet e unt il delivered, and t he delivery m ust be t o t he addressed part y, in t his case, t he individual part y at his dwelling. Case law applying t hese st at ut es support s t his plain reading. “ [ S] ect ion 60- 303( c) ( 1) . . . requires personal delivery service t o t he part y addressed.” Brooks v. 10t h Circuit Court of Appeals, 2010 WL 3878658 at * 2 ( D. Kan. 2010) ( st at ut ory requirem ent s of service are not m et when t he delivery is received by an individual ot her t han t he part y t o which t he delivery is addressed) . “ To effect uat e service by cert ified m ail in Kansas, plaint iff m ust deliver a copy of t he sum m ons and com plaint t o defendant .” Davis v. Shawnee Mission Medical Cent er, I nc., 2008 WL 4758591 at * 9 ( D. Kan. 2008) , aff’d, 353 Fed. Appx. 95 ( 10t h Cir. 2009) . This holds t rue in t he st at e court s t oo. I n t he recent case of Fisher v. DeCarvalho, 45 Kan. App. 2d 1133, 260 P.3d 1224 ( 2011) , rev. grant ed, - - - Kan. - - - ( May 21, 2012) , t he Kansas Court of Appeals applied § 60- 303( c) and § 60- 304 working from t he prem ise t hat personal delivery t o a part y was required. The plaint iff Fisher had m ailed t he sum m ons and pet it ion t o t he defendant DeCarvalho’s business office by cert ified m ail wit hout a request for rest rict ed delivery and wit hout first at t em pt ing service at t he defendant ’s dwelling. The Kansas Court of Appeals held: As t he dist rict court not ed, not hing in t he record indicat es t hat Fisher sat isfied any of t hese prerequisit es before she at t em pt ed t o serve DeCarvalho at his business address. Fisher m akes no claim t hat she first at t em pt ed t o serve DeCarvalho by ret urn receipt delivery at his dwelling house or usual place of abode. Furt herm ore, t he record does not reflect a ret urn on service indicat ing t hat delivery at DeCarvalho's 9 dwelling house or usual place of abode was refused or unclaim ed. Finally, Fisher's at t em pt t o serve DeCarvalho by cert ified m ail at his business address w a s n ot se n t by r e st r ict e d de live r y, w h ich w ou ld h a ve e n su r e d de live r y w a s m a de t o t h e pr ope r pa r t y. DeCarvalho also argues t hat Fisher failed t o com ply wit h t he procedure out lined in K.S.A. 60–304( a) because she fa ile d t o e n sur e t h a t e it h e r h e or h is a u t h or ize d a ge n t r e ce ive d se r vice . DeCarvalho is correct in t his assert ion, as t he ret urn receipt st at es t hat an unknown t hird person nam ed Phyllis Bieker received t he pet it ion on Decem ber 2, 2009. As t he dist rict court not ed, t he ret urn receipt did not designat e Bieker as DeCarvalho's agent and t he record does not indicat e t hat Bieker was aut horized t o accept service on DeCarvalho's behalf. Thus, Fisher did not properly serve process on DeCarvalho when she at t em pt ed t o serve him at his business address via cert ified m ail, as she did not com ply wit h t he procedure out lined in K.S.A. 60– 304( a) . 45 Kan. App. 2d at 1140- 41 ( bolding added) . The Fisher decision does not accom m odat e Cessna’s posit ion t hat it is enough t o prove an unknown t hird person has received t he pet it ion and sum m ons. See also Wat son v. Narine, 2006 WL 90098 at * 1 ( Kan. App. 2006) ( Out - of- st at e “ personal delivery service t o t he part y addressed” was insufficient , in part , because t he record failed t o show t hat t he person signing t he receipt was an aut horized agent ) . Cessna’s argum ent s t o t he cont rary are not persuasive. First , it offers a st rained and overbroad reading of § 60- 303( c) ( 3) , which st at es: “ Service of process is obt ained under K.S.A. 60- 203, and am endm ent s t heret o, upon t he delivery of t he sealed envelope.” Presum ably, Cessna is reading “ delivery” t o m ean no m ore t han t he physical act of bringing t he pet it ion and sum m ons t o t he residence. And in doing so, Cessna necessarily reads out any requirem ent t hat t he delivery be “ t o t he addressed part y.” Cessna’s reading of “ delivery” ignores t he plain t erm s of § 60- 303( c) ( 1) t hat 10 defines ret urn receipt delivery as t he com posit e act of effect ing delivery “ t o t he part y addressed.” There is no apparent logic or purpose served in having allowing “ delivery” m ean anyt hing less t han what t he st at ut e ot herwise requires for delivery. I f t hat were t he proper m eaning of “ delivery,” t hen what keeps it from also sweeping out t he ot her principal requirem ent from § 60- 303( c) , t hat is, a reliable delivery service. I n order for all part s of t he Kansas st at ut es t o ret ain t heir force and effect , t he court int erpret s “ delivery” in § 303( c) ( 3) , as m eaning t he act of delivery com plet ed in com pliance wit h Kansas law, including t he requirem ent of t he delivery being “ t o t he part y addressed,” § 303( c) ( 1) . 2 For it s posit ion, Cessna offers several legal cit at ions t hat are dist inguishable or dat ed, and t he court will address t hem sum m arily following t he order by which Cessna cit ed t hem . As it s first and m ost argued aut horit y, Cessna cit es Beck v. At lant ic Cont ract ing Co., I nc., 157 F.R.D. 61, 63 ( D. Kan. 1994) , which int erpret s a version of K.S.A. 60- 308( e) t hat is no 2 Cessna raises in it s reply brief what it t erm s “ a policy m at t er” in m aking a plaint iff who fully com plies wit h t he law at t he m ercy of t he post al em ployee. As Fisher point s out , a plaint iff in Cessna’s posit ion could have t he added prot ect ion of using rest rict ed delivery. I n t he end, t he risk of hum an error will always rem ain where hum an effort is involved. Since “ [ s] ervice of process, under longst anding t radit ion in our syst em of j ust ice, is fundam ent al t o any procedural im posit ion on a nam ed defendant ,” a court t ypically refrains from exercising power over a part y who has not been served. Murphy Bros. 526 U.S. at 350. Having select ed and ret ained t he personal delivery service, Cessna offers no plausible policy argum ent for why t he risk should not fall on it when t he service com m it s an error. 11 longer t he law in Kansas. 3 Specifically, Beck applied “ t he plain language of K.S.A. 60- 308( e) , which provides t hat service ‘m ay be by cert ified m ail, evidenced by ret urn receipt signed by any person’” as dict at ing t he “ result ” t hat delivery by cert ified m ail t o som eone ot her t han t he addressed part y does not invalidat e service. 157 F.R.D. at 63 n.2. The conclusion in Beck is against rest rict ing delivery t o t he part y, and t he court relied on t he “ any person” language in § 308( e) and on a decision by t he Ohio Court of Appeals int erpret ing a sim ilar st at ut e. I d. at n.3. Not only does Cessna fail t o cit e any sim ilar t erm regarding “ any person” in t he current Kansas st at ut es being applied here, but it also does not discuss how t he Beck decision can be squared wit h t he m ore recent Kansas Court of Appeals decision in Fisher. Moreover, t he holding in Beck is inapplicable, as it involved service on a business by leaving t he sum m ons and pet it ion wit h t he person in charge of a business office pursuant t o K.S.A. 60- 304( e) . See Port er v. Wells Fargo Bank, N.A., 45 Kan. App. 2d 931, 936- 37, 257 P.3d 788 ( 2011) ( dist inguishes Beck in part on t his ground also) . There is not hing in t he individual service provision of K.S.A. 60- 304 t hat speaks of “ leaving” t he 3 I n 2000, t he Kansas Legislat ure changed “ Service of any out - of- st at e process m ay be by cert ified m ail, evidenced by ret urn receipt signed by any person or by rest rict ed delivery” t o “ Service of any out - of- st at e process by ret urn receipt delivery shall include service effect ed by cert ified m ail, priorit y m ail, com m ercial courier service, overnight delivery service, or ot her reliable personal delivery service t o t he part y addressed, in each inst ance evidenced by a writ t en or elect ronic receipt showing t o whom delivered, dat e of delivery, address where delivered, and person or ent it y effect ing delivery.” 2000 Kan. Sess. Laws Ch. 175, § 3. 12 sum m ons and pet it ion at t he residence. As for t he cit ed decision of Fulcher v. Cit y of Wichit a, 445 F. Supp. 2d 1271, 1274- 75 ( D. Kan. 2006) , it t oo is dist inguishable, for it addresses service upon a governm ent al body, K.S.A. 60- 304( d) , which expressly allows service upon m ore t han t he properly addressed official. The court has read and considered t he com m ent ary cit ed by Cessna which includes t he st at em ent t hat § 60- 303( c) “ does not expressly require t hat t he process m ust be delivered t o a person.” 4 Kan. Law and Pract ice ( 5t h ed.) § 60- 303 p. 395 ( 2012) . The court const rues t his paragraph in t he com m ent ary as speaking largely t o what t he st at ut e requires as evidence for proving t he validit y of service and as crit iquing t he st at ut e’s failure t o require a recipient ’s signat ure. The com m ent ary opens t he paragraph wit h t he above quot ed st at em ent and links it t o t he st at ut e’s om ission of any proof requirem ent for a recipient ’s signat ure. 4 Our issue here is not wit h evident iary proof of service, as Cessna apparent ly concedes t hat t he defendant ’s evidence est ablishes t hat neit her he nor an aut horized agent received t he sum m ons and pet it ion on June 25, 2013, when t he package arrived at t he defendant ’s residence. I nst ead, t he issue as fram ed by Cessna is whet her service by ret urn receipt delivery is obt ained under 4 The analysis offered in t hat paragraph is not applicable here, and t o t he ext ent t hat one want s t o argue it s applicabilit y, t he court is not drawn t o it s logic. A receipt showing “ no one” as t he recipient would not appear t o sat isfy t he requirem ent for a “ receipt showing t o whom delivered,” because “ whom ” reasonably refers t o som eone, as in a person who exist ed. 13 K.S.A. § 60- 303( c) , K.S.A. 60- 304( a) and 28 U.S.C. § 1446( b) when t he package arrives at t he addressed part y’s residence but is not delivered t o or received by t he addressed part y or t hat part y’s aut horized agent . For all t he reasons st at ed above, t he court ’s ruling on t his issue is t hat t he ret urn receipt delivery here did not t rigger t he 30- day period in § 1446( b) on June 25, 2013, as argued by Cessna. I n t he alt ernat ive, if t he court had accept ed Cessna’s proposed reading and applicat ion of K.S.A. § 60- 303( c) on t hese uncont rovert ed fact s, t hen t he court st ill would have denied t he m ot ion t o rem and on t he following ground. Cessna’s reading essent ially would allow § 60- 303( c) t o m ake service com plet e in t he absence of act ual delivery t o t he defendant or aut horized agent . I n t hat case, t he court would be inclined t o apply § 1446( b) consist ent wit h holding and analysis st at ed here: I t [ Pilot Trading Co. v. Hart ford I ns. Group, 946 F. Supp. 834 ( D. Nev. 1996) ] not ed alt hough case law was som ewhat conflict ing, court s have m ore recent ly held t hat even where such a m ailbox rule is provided by st at e st at ut e, act ual receipt of t he com plaint and sum m ons is required for purposes of calculat ing t he federal period of rem oval. I d. at 837838. The Pilot court furt her reasoned t hat such an out com e was appropriat e in light of t he not ice rat ionale behind service, t he legislat ive hist ory of § 1446( b) , and concerns about allowing st at e procedural law t o cont rol federal rem oval j urisdict ion. I d. at 838–39. . . . . The weight of t he case law suggest s t hat it is act ual receipt by t he defendant t hat cont rols for purposes of § 1446( b) , regardless of when a st at e deem s service com plet e. The Court agrees t hat a sensible int erpret at ion of § 1446( b) requires t hat t he rem oval period be t riggered only upon receipt of t he pleadings by t he defendant or an agent designat ed by defendant . That sect ion was designed t o provide adequat e t im e for defendant s t o exercise t heir right s t o rem oval. See S.Rep. No. 712, at * 2 ( not ing need t o am end t he rem oval st at ut e 14 because t he “ exist ing 20–day period for filing a pet it ion ... is t oo short t o perm it t he rem oval of m any act ions” ) . To hold t hat t he rem oval period was t riggered not by receipt of t he pet it ion and sum m ons by CSC but rat her by t he m ailing of t hose docum ent s by t he Com m issioner would underm ine t hat goal, as it would subj ect defendant s t o varying periods of rem oval based on t he lengt h of t im e it t ook for docum ent s t o t ravel from t he Com m issioner t o t he part y being served. Such an out com e would clearly cont ravene m uch of t he reasoning in Murphy Bros. as well as t he int ent behind § 1446( b) . Condit ioning t he beginning of t he period for rem oval on act ual receipt of t he pleadings by t he defendant or defendant 's agent ensures t hat federal goals of not ice and consist ency are not sacrificed t o st at e rules of procedure. Denny v. I llinois Nat ional I nsurance Co., 2010 WL 5141656 at * 4- * 5 ( N.D. Okla. 2010) . The court is persuaded by t his approach of not com m encing t he rem oval t im e period in § 1446( b) unt il t he defendant or agent act ually receives t he sum m ons and com plaint . This is consist ent wit h what t he Suprem e Court in Murphy Bros said about t he legislat ive purpose behind § 1446( b) , “ [ t ] o ensure t hat t he defendant would have access t o t he com plaint before t he com m encem ent of t he rem oval period.” Cessna is not ent it led t o t he relief request ed in it s m ot ion. I T I S THEREFORE ORDERED t hat t he plaint iff’s m ot ion t o rem and ( Dk. 11) is denied. Dat ed t his 13t h day of Novem ber, 2013, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 15
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