Roy v. Chili's of Kansas, Inc. et al

Filing 26

MEMORANDUM AND ORDER granting 14 defendant Chili's Motion to Dismiss for Failure to State a Claim. Signed by District Judge J. Thomas Marten on 5/25/2011. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GEORGIA ROY ,
Plaintiff,

vs.

Case No. 10-2565-JTM

CHILI’S OF KANSAS, INC., AND FAULTLESS
LAUNDRY COMPANY ,
Defendants.

MEMORANDUM AND ORDER

Plaintiff Georgia Roy alleges that on January 12, 2008, she slipped and fell while dining at
an On the Border Mexican Grill and Cantina, located at 5200 W. 119th Street in Leawood, Kansas.
(Dkt. 1, at ¶ 11). The accident occurred, she contends, because of the unsafe condition of the carpet
in the restaurant. (Id. at ¶ 13). In her Complaint, filed on October 18, 2010, she brought claims
against both defendant, Chili's of Kansas, Inc., which she alleges was the owner and operator of the
restaurant, and against Faultless Laundry, which provided services to the restaurant and installed the
carpet. (Id. at ¶ 9, 14-15).
Roy originally filed a Petition with the Circuit Court of Jackson County, Missouri, on January
4, 2010. Chili’s objected to the action, arguing that the Missouri court lacked personal jurisdiction.
The court dismissed her claims without prejudice for lack of personal jurisdiction on April 20, 2010.
The Complaint in the present action was served upon John White, current General Manager

of On The Border Mexican Grill & Cantina located at 5200 W. 119th Street, Leawood, Kansas, on
January 17, 2011. However, at that time the restaurant was not owned by Chili's, and White was not
an employee of Chili's.
Chili’s specifically denied in its Answer, filed on February 1, 2011, the plaintiff’s contention
that it had a current business address at 5200 W. 119th Street. (Dkt. 1, at ¶ 2; Dkt. 9 at ¶ 3). From
the time of the accident until the present, it has maintained a Registered Agent located in Topeka,
Kansas, and this information is easily ascertainable through the Kansas Secretary of State's website.
In addition, it further specifically stated in the Answer:
In further defense, Defendant Chili’s states that Plaintiff’s purported service of
process is invalid and there is an insufficiency of service of process as it relates to
Defendant Chili’s. Defendant Chili’s of Kansas, Inc., no longer operates the On The
Border Mexican Grill & Cantina located at 5200 W. 119th Street in Leawood,
Kansas. Further, Defendant Chili’s of Kansas, Inc., due to the ownership of the On
The Border Mexican Grill & Cantina in Leawood, Kansas, no longer employees any
individual working at that location. Plaintiff’s purported service or process on the
manager at the On The Border Mexican Grill & Cantina in Leawood, Kansas, on
January 18, 2011, is invalid as service upon a non-agent of Defendant Chili’s of
Kansas, Inc.
(Id. at ¶ 4)
Chili’s has moved to dismiss the negligence claim as time-barred, arguing that the two-year
statute of limitations contained in K.S.A. § 60-513(a)(4) expired on January 12,2010, and that the
plaintiff has failed to obtain proper service within 120 days of the Complaint, as provided by
Fed.R.Civ.Pr. 4(m). Under Rule 4(m), Roy was required to obtain proper service by February 15,
2011.
Rule 4(m) provides:
If a defendant is not served within 120 days after the Complaint is filed, the Court —
on motion or on its own after notice to the Plaintiff — must dismiss the action
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without prejudice against that Defendant or order that service be made within a
specified time. But if the Plaintiff shows good cause for the failure, the Court must
extend the time for service for an appropriate period. This subdivision (m) does not
apply to the service in a foreign country under Rule 4(f) or 4(j)(1).
Chili’s contends that the action should be dismissed, since Roy has not served any valid copy
of the Complaint either within two years of the original accident (K.S.A. 60-531(a)(4), governing
actions for “injury to the rights of another”) or within six months of the dismissal of the Missouri
action (under the Kansas savings statute, K.S.A. 60-518).
Roy does not argue that the original service was valid, but argues that the court should
exercise its discretion to extend the time for service under Rule 4(m). She argues that “good cause”
exists, in that she served the same restaurant manager she served in the Missori action, and that by
some means a copy of the Complaint passed to Chili’s, as reflected in the Answer that it duly filed.
In its Reply, Chili’s does not address whether good cause might exist for an extension under
Rule 4(m), but contends that, since plaintiff’s claim is not a federal question, such extension cannot
occur because the claim is barred under the operation of the state statute of limitations. Under Walker
v. Armaco Steel, 446 U.S. 740, 752 (1978), the court must apply “state service requirements which
are an integral part of the state statute of limitations,” to the extent there is no direct conflict with
federal law. According to Chili’s, Rule 4(m) cannot extend the time for service, because any such
service would be time-barred under Kansas law. In particular, it argues that under K.S.A. 60-203(a),
an action is deemed commenced at the time of the original complaint only if proper service is
achieved within 90 days. Since that time has already passed, the action would commence only upon
the alternative, and untimely, service of process.
Under § 60-203(a):

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A civil action is commenced at the time of: (1) Filing a petition with the clerk of the
court, if service of process is obtained or the first publication is made for service by
publication within 90 days after the petition is filed, except that the court may extend
that time an additional 30 days upon a showing of good cause by the plaintiff; or (2)
service of process or first publication, if service of process or first publication is not
made within the time specified by provision (1).
This court has rejected as “without merit” the argument that Rule 4(m) preempts Kansas
limitations law as to claims arising under state law. In Seguros Popular C. x A. v. Raytheon Aircraft,
No 05-1002-JTM, 2005 WL 2099705, *1 (D. Kan. Aug. 30, 2005), the court concluded:
Although Rule 4(m) alleviates some of the effects of shorter state extensions for
limitations periods, it does so only in cases presenting federal claims. The authority
cited by defendant in Henderson v. United States, 517 U.S. 654, 116 S.Ct. 1638, 134
L.Ed.2d 880 (1996), dealt with such a federal claim, and the Supreme Court
expressly noted that in actions based on state law, Rule 4(m) would not alter the
existing principle that “a plaintiff must serve process before the statute of limitations
has run, if state law so requires for a similar state-court suit.” Henderson, 517 U.S.
at 657.
Accordingly, notwithstanding Rule 4(m), application of K.S.A. 60-203(a) means Roy’s action
will commence, for statute of limitations purposes, only on the date of the proposed future service,
and such a commencement would be untimely.
One additional issue may be considered. Neither party addresses the potential application of
K.S.A. 60-203(b), which provides an alternative basis for finding an action commenced with the
original complaint in some cases of defective service. Specifically, the statute provides:
If service of process or first publication purports to have been made but is later
adjudicated to have been invalid due to any irregularity in form or procedure or any
defect in making service, the action shall nevertheless be deemed to have been
commenced at the applicable time under subsection (a) if valid service is obtained
or first publication is made within 90 days after the adjudication, except that the court
may extend that time an additional 30 days upon a showing of good cause by the
plaintiff.
See Grimmett v. Burke, 21 Kan.App.2d 638, 647, 906 P.2d 156, 164 (Kan.Ct.App.1995) (holding
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that statute’s requirement that service “purports to have been made” requires showing “that a
defendant was given actual notice of having been sued”). See also Hughes v. Martin, 729 P.2d 1200,
1204 (Kan.1986) (stating that subsection (b) was a response to decisions finding actions time-barred
based on defective service, even where defendants had actual knowledge of the action, and plaintiffs
relied on the lack of timely objection).
The Kansas Court of Appeals extensively addressed the principles underlying the statute in
Grimmett, 21 Kan.App.2d at 647, 960 P.2d at 163-164:
There are two ways to construe the statute, one is extremely liberal and the
other appears to be a commonsense approach. A very liberal construction gives the
plaintiff a second chance at service. It would establish that a plaintiff always gets a
second chance under 60-203(b) when his or her original service has been determined
invalid. This would be true no matter how inept or how lacking in good faith the
original service may have been. In the extreme, a liberal approach of this nature
would simply ignore the first service and extend the process far beyond applicable
time frames. This approach would allow a party to simply leave a summons for John
Doe at a bar, at a church, at Arrowhead Stadium, at the courthouse, or any other place
and still insist that by doing so the party had “purported” to serve a defendant. Such
a liberal construction is ludicrous; we do not believe it was intended and will not
adopt that approach. The purpose of 60-203(b) is to give a second chance at service
to a party whose original service was declared invalid despite the fact that it gave the
defendant notice of suit.
We hold that before it can be said that service has “purported to have been
made,” it must be shown that a defendant was given actual notice of having been
sued. We also conclude that the following factors should exist: (1) The original
service must have “appeared” to be valid and the returns by the sheriff's office or
other process servers must indicate that the service was valid. (2) The record should
show that the plaintiff believed in good faith that his or her service was valid and
relied on that validity to his or her detriment. (3) The plaintiff had no reason to
believe the defendant was contesting service until after the statute of limitations had
run, but had no opportunity to take steps to correct the defective service.
(Emphasis in original).
The Kansas Supreme Court has approved and adopted the Grimmett factors. See

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Pieren-Abbott v. Kan. Dep't of Revenue, 279 Kan. 83, 106 P.3d 492, 504 (2005). In addition, “[t]he
Grimmett factors are cumulative. All must be present before the time extension of K.S.A. 60–203(b)
is available.” Taylor ex rel Gibbens. v. Medicalodges, Inc., Slip op., No. 102,539, 2010 WL
3324408, 236 P.3d 573 Kan.App.2d Aug. 20, 2010). See, generally, Huebner v. Rosen, 81
F.3d.Appx. 276, 282 (10th Cir. 2003) (statute not available as plaintiff failed to show actual notice
and also failed to satisfy additional Grimmett factors).; Davis v. Shawnee Mission Med. Ctr., 2008
WL 4758591 (D. Kan. Oct. 27, 2008) (plaintiff satsified none of the three factors), aff’d, Davis v.
Liese, 353 Fed.Appx. 95 (10th Cir. 2009); Jenkins v. City of Topeka, 958 F.Supp. 556, 561 (D. Kan.
1997) (“none of the factors set forth in Grimmett are satisfied in this case), rev’d on other gds., 136
F.3d 1274 (10th Cir. 1998).
As a result, K.S.A. 60-203(b) provides no alternative means for deeming any extension of
service timely, and dismissal is the appropriate result.
IT IS ACCORDINGLY ORDERED this 25th day of May, 2011, that the defendant’s Motion
to Dismiss (Dkt. 14) is hereby granted.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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