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Meyer v. Fink

United States District Court, D. Kansas

October 29, 2014

WESSEL H. MEYER, Individually and as Administrator of the Estate of Maritius A. Meyer, and MARTHA MEYER, Plaintiffs,
v.
JEFFREY FINK and METROPOLITAN GROUP PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief District Judge.

Plaintiff Wessel H. Meyer, individually and as administrator of the estate of Maritius A. Meyer, and plaintiff Martha Meyer (collectively "plaintiffs") seek to enforce an Order of Garnishment, issued by the District Court of Riley County, Kansas, against defendant Metropolitan Group Property and Casualty Insurance Company ("defendant").[1] This matter is currently before the court on plaintiffs' Motion to Remand the action to state court. For the reasons stated below, plaintiffs' motion is granted.

I. Factual and Procedural Background

This case arises out of a fatal automobile accident. On November 16, 2008, Myles Runyon ("Runyon") was operating a 1999 GMC pickup truck westbound on Interstate 70 near mile marker 318. Nominal defendant Jeffrey Fink ("Fink") and plaintiffs' son, Maritius Meyer ("Maritius") were passengers in Runyon's truck. At some point, Runyon lost control of the truck, which subsequently left the highway and overturned. Maritius sustained substantial and fatal injuries and died the next morning.

Plaintiffs initially made a claim against Runyon, alleging that it was his negligence, as the driver of the vehicle, that led to Maritius' death. Dkt. 5, at 2. They submitted a claim to defendant, Runyon's auto insurer, for wrongful death. Dkt. 9, at 2. After its own investigation of the accident, defendant entered into a settlement with plaintiffs, agreeing to pay $250, 000, the maximum per person payout of Runyon's insurance policy. Dkt. 9, at 2-3. In exchange for this payment, plaintiffs signed a "Full and Final Release of All Claims and Idemnitifcation Covenant." Dkt. 5, at 2. The settlement specifically preserved plaintiffs' right to maintain a claim against Fink. Dkt. 9, at 3.

On November 12, 2013, plaintiffs filed a wrongful death and survival action against Fink in the District Court of Riley County, Kansas. Dkt 1-1. Plaintiffs allege that, while Runyon was driving, Fink took control of the vehicle by shifting the truck out of "drive" and into "park, " ultimately causing the fatal accident. Dkt. 1-1, at 12. During the course of litigation, plaintiffs and Fink entered into a settlement whereby plaintiffs agreed to satisfy any judgment they received against Fink by filing a garnishment against defendant. Dkt. 5, at 2-3.[2] On December 27, 2013, the Riley County Court entered judgment in favor of plaintiffs in the amount of $428, 356.48 and issued the Order of Garnishment at issue in the present matter. Dkt. 9, at 4.

Plaintiffs served defendant with the garnishment order on July 7, 2014. Dkt. 12, at 3. On August 8, 2014, defendant filed a Notice of Removal in the United States District Court for the District of Kansas. Dkt. 1. Plaintiffs filed the pending Motion to Remand on September 4, 2014, on the grounds that defendant's removal was untimely. Dkt 10. Defendant contests the motion, arguing that its removal could not be untimely because it was never actually served with the Order of Garnishment. Dkt. 13.

II. Legal Standard

"The district courts of the United States... are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.'" Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552 (2005) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). "Except as otherwise provided... any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant... to the district court...." 28 U.S.C. § 1441(a). The procedures for removal are governed by 28 U.S.C. § 1446, which provides, in part:

(a) A defendant or defendants desiring to remove any civil action... shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure....
(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....

28 U.S.C. § 1446 (emphasis added).

A court is required to remand "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). "In addition to lack of subject matter jurisdiction, defects in the removal procedure are grounds for remand." McDonald v. BAM, Inc., 2013 U.S. Dist. LEXIS 29176, at *2 (D. Kan. Mar. 5, 2013) (citing 28 U.S.C. § 1447(c)); see also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996), Henderson v. Holmes, 920 F.Supp. 1184, 1186 (D. Kan. 1996). "Procedural defects include a deficient or untimely notice of removal...." McDonald, 2013 U.S. Dist. LEXIS 29176, at *2 (citing SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578, 580 (10th Cir. 1997)). "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of notice of removal under 1446(a)." 28 U.S.C. § 1447(c). "Removal statutes ...


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