Klima Well Service, Inc. v. Hurley et al, No. 6:2014cv01250 - Document 22 (D. Kan. 2014)
Court Description: MEMORANDUM AND ORDER denying 16 Motion to Remand to State Court. Signed by U.S. District Senior Judge Sam A. Crow on 12/2/14. (msb)
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Klima Well Service, Inc. v. Hurley et al Doc. 22 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS KLI MA WELL SERVI CE, I NC., Plaint iff, vs. Case No. 14- 1250- SAC HARRY HURLEY, et al, Defendant s. MEMORANDUM AND ORDER This case, rem oved from st at e court , com es before t he Court on Plaint iff’s m ot ion t o rem and. Plaint iff cont ends t hat Defendant Miles Hirson 1 failed t o t im ely j oin in or consent t o t he rem oval, rendering t he rem oval defect ive. The relevant fact s are undisput ed. On July 11, 2014, Plaint iff filed it s pet it ion against defendant s Scot t Scam m ell ( “ Scam m ell” ) , Harry Hurley ( “ Hurley” ) , and Miles Hirson ( “ Hirson” ) in t he Dist rict Court of Kingm an Count y, Kansas ( “ St at e Court Act ion” ) . The pet it ion alleged t hat all defendant s were dom iciled out side t he st at e of Kansas and had failed t o pay t he operat ing expenses incurred from t he working int erest s each held in oil and gas leases locat ed in Kingm an Count y, Kansas. 1 Plaint iff’s m ot ion alleges t hat Defendant Scot t Scam m el I I I failed t o com ply wit h t he rem oval st at ut e, but t he m ot ion elsewhere alleges, as does t he m em orandum , t hat Defendant Hirson has failed t o j oin. Dockets.Justia.com Defendant Scam m ell was served on July 16, 2014, and Defendant Hurley was served by cert ified m ail on July 17, 2014, but Defendant Hirson did not receive personal service of process. Plaint iff published not ice in a paper of general circulat ion in Kingm an Count y, Kansas for t hree consecut ive weeks - on August 7t h, 14t h, and 21st of 2014. The part ies agree t hat Hinson was served by publicat ion on August 21, 2014. On August 8, 2014, defendant Scam m ell filed a Not ice of Rem oval pursuant t o 28 U.S.C. §§ 1332 and 1446. Defendant Hurley consent ed t o and j oined t he rem oval on August 14, 2014, but Defendant Hinson has not consent ed t o or j oined t he rem oval. Plaint iff cont ends t hat Defendant Hinson had 30 days aft er service on t he first - served defendant t o j oin in t he rem oval, and t hat his failure t o do so warrant s rem and. 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, 116 S.Ct . 174, 133 L.Ed.2d 114 ( 1995) . The part y seeking rem oval has 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, 56 S.Ct . 780, 80 L.Ed. 1135 ( 1936) ; Baby C v. Price, 138 Fed.Appx. 81, 83–84 ( 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, 190 F.Supp.2d at 1241. 2 Where, as here, rem oval is based on diversit y j urisdict ion, 29 USC § 1446 applies. That st at ut e provides: When a civil act ion is rem oved solely under sect ion 1441( a) , all defendant s who have been properly j oined and served m ust j oin in or consent t o t he rem oval of t he act ion. 28 U.S.C. § 1446( b) ( 2) ( a) . This case was removed solely under § 1441( a) ( providing for rem oval of cases in which t he dist rict court s of t he Unit ed St at es have original j urisdict ion) . Com pare § 1444 ( perm it t ing t he U.S. or it s agencies t o rem ove cert ain cases wit hout consent from all defendant s and wit hout showing diversit y or federal quest ion j urisdict ion) . Accordingly, § 1446 applies. This st at ut e has been int erpret ed t o m ean t hat t hose defendant s who have been properly j oined and served at t he t im e t he act ion is rem oved m ust j oin in or consent t o t he rem oval. I n Decem ber of 2011, Sect ion 1446 was am ended as part of t he Federal Court s Jurisdict ion and Venue Clarificat ion Act of 2011 ( “ JVCA” ) . Pub.L. No. 112–63, § 103( b) , 125 St at . 758, 760–61 ( Dec. 7, 2011) . The am ended version of § 1446 is st at ed above. Prior t he JVCA, 28 U.S.C. § 1446( a) , provided in pert inent part : ( a) A defendant or defendant s desiring t o rem ove any civil act ion or crim inal prosecut ion from a St at e court shall file in t he dist rict court of t he Unit ed St at es for t he dist rict and division wit hin which such act ion is pending a verified pet it ion cont aining a short and plain st at em ent of t he fact s which ent it le him or t hem t o rem oval t oget her wit h a copy of all process, pleadings and order served upon him or t hem in such act ion. 3 Court s int erpret ed t hat subsect ion as requiring all defendant s t o j oin in t he rem oval pet it ion. Cohen v. Hoard, 696 F.Supp. 564 ( D. Kan. 1988) ( cit ing cases) . That requirem ent was com m only referred t o as t he unanim it y rule. McShares, I nc. v. Barry, 979 F.Supp. 1338, 1342 ( D.Kan. 1997) . But an except ion t o t hat unanim it y rule provided t hat “ nom inal, unknown, unserved or fraudulent ly j oined defendant s” did not need t o j oin or consent t o rem oval. McShares, 979 F.Supp. at 1342. Now unanim it y is no longer required, as t he plain language of t he st at ut e requires j oinder or consent for rem oval by only t hose defendant s who have been properly j oined and served. Thus a defendant who has not been served wit h process as of t he dat e of rem oval is not required t o j oin. See Pullm an Co. v. Jenkins, 305 U.S. 534, 540- 41, 59 S.Ct . 347, 83 L.E d. 334 ( 1939) . I n Pullm an, t he Suprem e Court explained t he reason for t his rule: Where t here is a non- separable cont roversy wit h respect t o several non- resident defendant s, one of t hem m ay rem ove t he cause, alt hough t he ot her defendant s have not been served wit h process and have not appeared. ( Cit at ions om it t ed.) . I n such a case t here is diversit y of cit izenship, and t he reason for t he rule is st at ed t o be t hat t he defendant not served m ay never be served, or m ay be served aft er t he t im e has expired for t he defendant who has been served t o apply for a rem oval, and unless t he lat t er can m ake an effect ive applicat ion alone, his right t o rem oval m ay be lost . Hunt v. Pearce, 8 Cir., 284 F. page 324. Pullm an Co., 305 U.S. at 540- 541. Accordingly, t he Tent h Circuit has held t hat a defendant 's consent t o rem oval was not necessary where he had not been served at t he t im e 4 anot her defendant filed it s not ice of rem oval. See Sheldon v. Khanal, 502 Fed.Appx. 765 ( 10t h Cir. 2012) ( unpublished) . I n Sheldon, as here, t he plaint iff argued t hat t he case should be rem anded t o st at e court because one of t he defendant s had not j oined t he not ice of rem oval. See 502 Fed.Appx. at 769–71. The Judge disagreed, rej ect ing t he argum ent as “ cont rary t o t he clear st at ut ory language requiring only served defendant s t o consent t o rem oval.” Sheldon, 502 Fed.Appx. at 770. The case found t hat t he defendant ’s consent t o rem oval was not necessary where he had not been served at t he t im e t he ot her defendant filed t he not ice of rem oval. Dist rict court s wit hin t he Tent h Circuit have done likewise. See e.g. At kins v. Heavy Pet roleum Part ners, LLC, 2014 WL 4657105, 5 ( D. Kan. 2014) ( holding t hat t hree defendant s who had not been served w hen t he rem oving defendant s filed t he not ice of rem oval did not need t o consent t o t he rem oval because t he clear st at ut ory language of 28 U.S.C. § 1446( b) ( 2) ( A) requires only served defendant s t o consent t o rem oval) ; May v. Board of Count y Com 'rs for Cibola Count y, 945 F.Supp.2d 1277, 1298 ( D.N.M. 2013) ( denying m ot ion t o rem and, “ [ b] ecause neit her t he st at ut e nor t he Tent h Circuit require[ s] such act ion, t he Defendant s need not , t o advance t he purpose of t he unanim it y, account for every Defendant in t he not ice of rem oval if t he Defendant has not yet been served.” ) Cases decided prior t o t he st at ut ory revision are t o t he sam e effect . See e.g., Brady v. Lovelace Healt h Plan, 504 F.Supp.2d 1170 at 1173 5 ( D.N.M. 2007) ( finding “ a defendant who has not yet been served wit h process is not required t o j oin” ) ; Cram er v. Devera Managem ent Corp., 2004 WL 1179375, 2 ( D.Kan. 2004) ( finding it “ well set t led … t hat a defendant who has not been served need not j oin in or consent t o rem oval.” ) This except ion for unserved defendant s rest s on t he “ bedrock principle” t hat “ [ a] n individual or ent it y nam ed as a defendant is not obliged t o engage in lit igat ion unless not ified of t he act ion, and brought under a court 's aut horit y, by form al process.” Murphy Bros., I nc. v. Michet t i Pipe St ringing, I nc., 526 U.S. 344, 347, 119 S.Ct . 1322, 143 L.Ed.2d 448 ( 1999) . Cram er, 2004 WL at 2 ( denying m ot ion t o rem and because consent of unserved defendant was not required) . Plaint iff erroneously relies on McShares, which, based on t he st at ut ory language in effect at t hat t im e, held t hat a rem oving defendant m ust file t he not ice of rem oval wit hin t hirt y days of service on t he first - served defendant . 979 F.Supp. at 1343- 44. That st at ut e has since been am ended t o replace t he first - served rule wit h t he last - served rule, perm it t ing “ [ e] ach defendant [ t o] have 30 days aft er receipt by or service on t hat defendant of t he init ial pleading or sum m ons of t he init ial pleading or sum m ons … t o file t he not ice of rem oval.” 28 U.S.C. § 1446( b) ( 2) ( B) . More im port ant ly, in McShares, unlike here, all defendant s had been served before t he not ice of rem oval was filed. See 979 F.Supp. 1338, 1344, n. 4. ( D.Kan. 1997) . Plaint iffs do not cont end and provide no support for an argum ent t hat once properly served, Hinson had t o consent t o t he rem oval aft er t he fact . No cases support ing t hat proposit ion have been found in t his j urisdict ion, 6 and t he argum ent appears cont rary t o cases in ot her j urisdict ions. The federal st at ut es cont em plat e t hat in rem oved cases “ in which any one or m ore of t he defendant s has not been served wit h process…” service m ay be com plet ed aft er rem oval and t he unserved defendant ret ains a right t o rem and t he case. 28 USC § 1448. That right does not affect , however, t he plaint iff’s right t o rem and. See Lewis v. Rego Co., 757 F.2d 66, 69 ( 3d Cir. 1985) ( “ t he rem oval st at ut e cont em plat es t hat once a case has been properly rem oved t he subsequent service of addit ional defendant s who do not specifically consent t o rem oval does not require or perm it rem and on a plaint iff's m ot ion” ) ; Paragon Tank Truck Equipm ent , LLC v. Parish Truck Sales, I nc., 2014 WL 2739155, 1- 2 ( W.D.Wis. 2014) ; Diversey, I nc. v. Maxwell, 798 F.Supp.2d 1004, 1005–06 ( E.D.Wis. 2011) ( unserved defendant does not need t o consent aft er being served and ret ains t he right t o “ vet o t he rem oval” by m oving t o rem and once he is served wit h process and m akes an appearance in t he case) ; Sm it h v. FCM- MTC Medical, LLC, 2011 WL 320978, 1 ( E.D.Va. 2011) ( finding unserved defendant s need not j oin t he not ice of rem oval - aft er rem oval, service m ay be com plet ed on defendant s who had not been served in t he st at e proceeding, but t heir st at ut ory right t o m ove t o rem and t he case confers no right s upon a plaint iff.) 7 I T I S THEREFORE ORDERED t hat Plaint iff’s m ot ion t o rem and is denied. Dat ed t his 2nd day of Decem ber, 2014, at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 8
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