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Schwab v. Kobach

United States District Court, D. Kansas

August 28, 2019

RAYMOND R. SCHWAB AND AMELIA D. SCHWAB, Plaintiffs,
v.
KRIS KOBACH, et al., Defendants.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         This matter[1] comes before the court on defendants Anthony and Michelle Allison's Motion to Quash (Doc. 105) under Fed.R.Civ.P. 12(b)(4) and (5). For reasons explained below, the court denies defendants' motion.

         I. Background

         Defendants move to quash four Proofs of Service-Docs. 72, 74, 92, and 93-filed by plaintiffs Raymond and Amelia Schwab. Two of the Proofs of Service-Docs. 72 and 74- represent that on January 11, 2019, a person named Alma Ann E. Jones[2] attempted to serve summonses on defendants. But, the Proofs of Service also represent that, after “multiple attempts” to effect personal service, Ms. Jones left the summonses “on the front door” of the home where she had tried to serve defendants. Doc. 72 at 1; Doc. 74 at 1. Then, plaintiffs filed two Proofs of Service showing that Ms. Jones had mailed summonses to defendants. Plaintiffs attached the return receipts, both purportedly bearing Michelle Allison's signature, to the Proofs of Service they had filed. One return receipt shows Anthony Allison's name and address. Doc. 92 at 2. And the other shows Michelle Allison's name and address. Doc. 93 at 2.

         II. Legal Standard

         Federal Rule of Civil Procedure 4(e) provides that a party may accomplish service on an individual by: (1) delivery to the individual personally, (2) delivery at the individual's dwelling or usual place of abode, (3) delivery on the individual's authorized agent, or (4) following Kansas state laws governing service. See Fed. R. Civ. P. 4(e). Kansas law allows for service by return receipt delivery “to an individual at the individual's dwelling or usual place of abode.” Kan. Stat. Ann. § 60-303(c)(1), 304(a). More specifically, this Kansas statute provides:

The sheriff of the county in which the action is filed must serve any process by any method authorized by this section, or as otherwise provided by law, unless a party, either personally or through an attorney, notifies the clerk that the party elects to undertake responsibility for service.
The sheriff, party or party's attorney must give to the person or entity effecting delivery a copy of the process and petition or other document in a sealed envelope, with postage or other delivery fees prepaid, addressed to the person to be served in accordance with K.S.A. 60-304, and amendments thereto. . . . Service of process is obtained under K.S.A. 60-203, and amendments thereto, upon the delivery of the sealed envelope . . . . After service and return of the return receipt, the sheriff, party or party's attorney must execute and file a return of service. The return of service must state the nature of the process, to whom delivered, the date of delivery, the address where delivered and the person or entity effecting delivery. It must include a copy of the return receipt evidencing delivery.

Id. at § 60-303(b), (c)(2)-(4).

         Kansas law permits a party to discharge its service of process obligation by showing “substantial compliance.” Kan. Stat. Ann. § 60-204 provides:

Substantial compliance with any method of serving process effects valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court that might affect the party or the party's status or property.

         Kan. Stat. Ann. § 60-204. The Kansas Supreme Court has defined “substantial compliance” as “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.” Fisher v. DeCarvalho, 314 P.3d 214, 219 (Kan. 2013) (citation and internal quotation marks omitted). And, the Kansas Supreme Court “read[s] the statutory language [of Kan. Stat. Ann. § 60-204] as suggesting that the legislature believed that the paramount objective of any method of service of process is that ‘the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected.'” Id. at 220 (quoting Kan. Stat. Ann. § 60-204).

         III. Analysis

         Defendants' motion contends that plaintiffs have failed to comply with Kan. Stat. Ann. § 60-303 because, they assert, that statute only permits the sheriff, the party, or the party's attorney to serve summonses using return receipt delivery. Here, someone named Alma Ann E. Jones attempted to serve defendants. But, defendants argue, she is not one of the individuals authorized by statute to serve process. Defendants contend “a random individual mailed something to Defendants and executed the return.” Doc. 106 at 3. “No representation was made as to whether such mailings even included the summonses, ” their argument continues. Id. ...


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