Opinion
CIVIL ACTION No. 03-2612-CM
January 26, 2004
MEMORANDUM AND ORDER
This matter comes before the court on plaintiff's Motion to Remand (Doc. 4) this case to state court. Plaintiff originally filed this case in the District Court of Wyandotte County, Kansas, and defendant removed the action to the United States District Court, District of Kansas. Defendant has not filed a response, which was due December 26, 2003.
I. Legal Standards
A. Federal Removal Statute 28 U.S.C. § 1446(b) requires:
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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
"'The failure to comply with these express statutory requirements for removal can fairly be said to render the removal 'defective' and justify a remand.'" Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1077 (10th Cir. 1999) (quoting Snapper, Inc. v. Redan, 171 F.3d 1249, 1253 (11th Cir. 1999)); see also First Nat'l. Bank Trust Co. in Great Bend v. Nicholas, 768 F. Supp. 788, 790 (D. Kan. 1991) ("Failure to timely file a notice for removal is a defect requiring remand to the state court." (citing Knudsen v. Samuels, 715 F. Supp. 1505, 1507 (D. Kan. 1989))).
B. Service Pursuant to K.S.A. § 40-218
K.S.A. § 40-218 provides:
Every insurance company, or fraternal benefit society, on applying for authority to transact business in this state, and as a condition precedent to obtaining such authority, shall file in the insurance department its written consent, irrevocable, that any action or garnishment proceeding may be commenced against such company or fraternal benefit society in the proper court of any county in this state in which the cause of action shall arise or in which the plaintiff may reside by the service of process on the commissioner of insurance of this state, and stipulating and agreeing that such service shall be taken and held in all courts to be as valid and binding as if due service had been made upon the president or chief officer of such corporation.
(emphasis added). Section 40-218, therefore, allows a party to effectuate service upon an insurance company operating in the State of Kansas by proper service of process on the Kansas Insurance Commissioner. McClelland v. Mich. Sur. Co., 190 Kan. 761, 764, 378 P.2d 72, 75 (1963); Deines v. Vermeer Mfg. Co., 752 F. Supp. 989, 1000 (D. Kan. 1990). Moreover, this court has specifically held that the 30-day removal period for purposes of § 1446 begins on the day that a party serves process on the Kansas Insurance Commissioner, in accordance with § 40-218. Ortiz v. Biscanin, 190 F. Supp.2d 1237, 1243 (D. Kan. 2002).
II. Analysis
Defendant filed a Letter of Attorney to Acknowledge Service of Process with the Insurance Department of the State of Kansas, which pursuant to § 40-218 allowed service upon defendant to be effectuated through service on the Kansas Insurance Commission. On October 31, 2003, the Kansas Department of Insurance issued a Commissioner's Proof of Insurance, indicating receipt of plaintiff's "Summons, Petition First Amended Petition" and stating that: "Service was made upon Lumbermen's Mutual Casualty Co. on October 31, 2003, pursuant to K.S.A. § 40-218, by depositing the aforementioned documents in the United States Mail" and addressed to defendant in Illinois. The 30-day period in which defendant had to file for removal pursuant to § 1446, therefore, began on October 31, 2003. See Ortiz, 190 F. Supp.2d at 1243 (holding that the time period for removal begins upon service to the Kansas Insurance Commissioner, rather than the date on which an insurance company receives notice of service).
Defendant filed its notice of removal on plaintiff on December 3, 2003. In accordance with Federal Rule of Civil Procedure 6, the period began to toll on November 1, 2003, and would have terminated on December 1, 2003, because November 30 was a Saturday. In light of the fact that defendant filed its notice for removal beyond the allowed 30-day period provided by § 1446 and has not filed a response to plaintiff's motion, the court must conclude that defendant's removal was defective and that the case must be remanded to state court.
IT IS THERFORE ORDERED that plaintiff's Motion to Remand (Doc. 4) is granted. The above-captioned case is hereby remanded back to the District Court of Wyandotte County, Kansas.