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Klima Well Service, Inc. v. Hurley

United States District Court, D. Kansas

December 2, 2014

KLIMA WELL SERVICE, INC., Plaintiff,
v.
HARRY HURLEY, et al., Defendants.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This case, removed from state court, comes before the Court on Plaintiff's motion to remand. Plaintiff contends that Defendant Miles Hirson[1] failed to timely join in or consent to the removal, rendering the removal defective.

The relevant facts are undisputed. On July 11, 2014, Plaintiff filed its petition against defendants Scott Scammell ("Scammell"), Harry Hurley ("Hurley"), and Miles Hirson ("Hirson") in the District Court of Kingman County, Kansas ("State Court Action"). The petition alleged that all defendants were domiciled outside the state of Kansas and had failed to pay the operating expenses incurred from the working interests each held in oil and gas leases located in Kingman County, Kansas.

Defendant Scammell was served on July 16, 2014, and Defendant Hurley was served by certified mail on July 17, 2014, but Defendant Hirson did not receive personal service of process. Plaintiff published notice in a paper of general circulation in Kingman County, Kansas for three consecutive weeks - on August 7th, 14th, and 21st of 2014. The parties agree that Hinson was served by publication on August 21, 2014.

On August 8, 2014, defendant Scammell filed a Notice of Removal pursuant to 28 U.S.C. §§ 1332 and 1446. Defendant Hurley consented to and joined the removal on August 14, 2014, but Defendant Hinson has not consented to or joined the removal. Plaintiff contends that Defendant Hinson had 30 days after service on the first-served defendant to join in the removal, and that his failure to do so warrants remand.

Having limited jurisdiction, federal courts employ a presumption "against removal jurisdiction." Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert. denied, 516 U.S. 863, 116 S.Ct. 174, 133 L.Ed.2d 114 (1995). The party seeking removal has the burden to show the propriety of removal and the existence of removal jurisdiction. Ortiz v. Biscanin, 190 F.Supp.2d 1237, 1241 (D.Kan. 2002); see McNutt v. General Motors Acceptance 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 (10th Cir. 2005). Federal courts strictly construe removal statutes and resolve all doubts in favor of remand. See Ortiz, 190 F.Supp.2d at 1241.

Where, as here, removal is based on diversity jurisdiction, 29 USC § 1446 applies. That statute provides:

When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.

28 U.S.C. § 1446(b)(2)(a). This case was removed solely under § 1441(a) (providing for removal of cases in which the district courts of the United States have original jurisdiction). Compare § 1444 (permitting the U.S. or its agencies to remove certain cases without consent from all defendants and without showing diversity or federal question jurisdiction). Accordingly, § 1446 applies. This statute has been interpreted to mean that those defendants who have been properly joined and served at the time the action is removed must join in or consent to the removal.

In December of 2011, Section 1446 was amended as part of the Federal Courts Jurisdiction and Venue Clarification Act of 2011 ("JVCA"). Pub.L. No. 112-63, § 103(b), 125 Stat. 758, 760-61 (Dec. 7, 2011). The amended version of § 1446 is stated above.

Prior the JVCA, 28 U.S.C. § 1446(a), provided in pertinent part:

(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and order served upon him or them in such action.

Courts interpreted that subsection as requiring all defendants to join in the removal petition. Cohen v. Hoard, 696 F.Supp. 564 (D. Kan. 1988) (citing cases). That requirement was commonly referred to as the unanimity rule. McShares, Inc. v. Barry, 979 F.Supp. 1338, 1342 (D.Kan. 1997). But an exception to that unanimity rule provided that "nominal, unknown, unserved or fraudulently joined defendants" did not need to join or consent to removal. McShares, 979 F.Supp. at 1342.

Now unanimity is no longer required, as the plain language of the statute requires joinder or consent for removal by only those defendants who have been properly joined and served. Thus a defendant who has not been served with process as of the date of removal is not required to join. See Pullman Co. v. Jenkins, 305 U.S. 534, 540-41, 59 S.Ct. 347, ...


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