United States District Court, D. Kansas
RAYMOND R. SCHWAB AND AMELIA D. SCHWAB, Plaintiffs,
KRIS KOBACH, et al., Defendants.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
matter 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.
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 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.
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
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).
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.
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).
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. ...