Val Energy, Inc. v. Ring Energy, Inc.
Filing
10
MEMORANDUM AND ORDER granting 4 Motion to Remand to State Court. This case shall be remanded to the District Court of Gray County, Kansas. Signed by District Judge Richard D. Rogers on 10/31/14. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VAL ENERGY, INC.,
a Kansas Corporation,
Plaintiff,
v.
Case No. 14-1327-RDR
RING ENERGY, INC.,
a Nevada Corporation,
Defendant.
MEMORANDUM AND ORDER
This matter is presently before the court upon plaintiff=s
motion to remand.
remanded
pursuant
Plaintiff contends that this case should be
to
28
U.S.C.
'
1447(c)
due
to
defendant=s
failure to timely remove the case from state court.
Having
carefully reviewed the arguments of the parties, the court is
now prepared to rule.
I.
Val Energy, Inc., a Kansas corporation, filed this case in
the District Court of Gray County, Kansas, on July 25, 2014,
seeking to recover $180,558.31 from Ring Energy, Inc., a Nevada
corporation, for the drilling of two oil wells in Gray County.
Ring
Energy
was
served
with
the
summons
and
a
copy
of
the
verified petition by certified mail upon its resident agent,
Capitol Corporate Services, Inc., on August 19, 2004.
Energy filed a notice of removal on October 8, 2014.
1
Ring
Val Energy argues that the petition for removal was not
timely filed because it was filed over thirty days after Ring
Energy was served with a copy of the state court petition.
Ring
Energy contends that its notice of removal was timely filed
because it was filed within thirty days after it received notice
of the filing of Val Energy=s state court petition.
Ring Energy
points out that its registered agent forwarded the petition to
it, but it did not learn of the summons and verified petition
until September 8, 2014.
In making this argument, Ring Energy
relies upon certain cases where courts have determined that the
time for filing a notice of removal starts when the defendant
actually
receives
the
state
upon a Astatutory agent.@
court
petition
following
service
In response, Val Energy points out
that service in this case was made upon a Aregistered agent,@ not
a Astatutory agent.@
Thus, Val Energy suggests that the removal
petition was untimely because the time period for filing the
removal
petition
was
triggered
by
the
service
upon
Capitol
Corporate Services, Inc.
II.
A civil action filed in state court is only removable if
the action could have originally been brought in federal court.
28 U.S.C. ' 1441(a).
Federal removal jurisdiction is statutory
in nature and is to be strictly construed.
2
First Nat=l Bank &
AThere is
Trust v. Nicholas, 768 F.Supp. 788, 790 (D.Kan. 1991).
a presumption against removal jurisdiction,@ and the burden is on
the
removing
party
to
show
the
propriety
of
the
removal.
Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995).
28
U.S.C. ' 1446(b) requires that the notice of removal be filed
within
30
days
after
the
defendant=s
receipt
of
the
initial
petition.
The failure to file a notice of removal within the
statutory
requirement
of
thirty
days
renders
the
removal
defective and results in remanding the case to the state court.
Huffman v. Saul Holdings Ltd. Partnership, 194 F.3d 1072, 1077
(10th Cir. 1999).
As
a
general
rule,
the
thrity-day
period
for
filing
a
notice of removal begins when notice of the lawsuit is received
by
a
person
defendant.
who
however,
statutory
See
have
is
Huffman,
held
agent,
authorized
that
the
194
F.3d
when
time
to
the
period
accept
at
process
1077.
service
does
is
not
Most
start
Fire
Ins.
Co.,
105
Fed.Appx.
476,
the
courts,
effected
defendant has received a copy of the complaint.
Hartford
for
until
on
a
the
See Gordon v.
480-81
(4th
Cir.
2004); Renaissance Marketing, Inc. V. Monitronics Intern., Inc.,
606
F.Supp.2d
201,
206
(D.P.R.
2009);
Tucci
v.
Hartford
Financial Services Group, Inc., 600 F.Supp.2d 630, 634 (D.N.J.
2009); White v. Lively, 304 F.Supp.2d 829, 831 (W.D.Va. 2004);
3
Lilly v. CSX Transp., Inc., 186 F.Supp.2d 672, 675 (S.D.W.Va.
2002);
Hibernia
Community
Development
Corp.,
Inc.
v.
U.S.E.
Community Services Group, Inc., 166 F.Supp.2d 511, 513 (E.D.La.
2001); Wilbert v. Unum Life Ins. Co., 981 F.Supp. 61, 63 (D.R.I.
1997); Medina v. WalBMart Stores, Inc., 945 F.Supp. 519, 520
(W.D.N.Y.1996).
At least two courts, including a decision by
Judge Murguia of this district, have held otherwise.
Ross v.
Scottsdale Ins. Co., 2010 WL 4810211 (E.D.Mo. Nov.19, 2010);
Ortiz v. Biscanin, 190 F.Supp.2d 1237 (D.Kan.2002).
for
the
exception
has
been
explained
as
The reason
follows:
AStatutory
agents, unlike agents in fact, have both limited purpose and
limited power.
medium
for
In fact, they are not true agents but merely a
transmitting
the
relevant
papers.@
Tucci,
600
F.Supp.2d at 633 (internal quotations and citations omitted).
In
its
response,
Ring
Energy
has
at
times
referred
to
Capitol Corporate Services, Inc. as its Aregistered agent@ and at
times as a Astatutory agent.@
Val
Energy,
that
Capitol
The court finds, as suggested by
Corporate
Services
is
a
agent@ for Ring Energy, not a Astatutory agent.@
Aregistered
In Kansas,
foreign corporations conducting business in Kansas must appoint
resident
agents
for
service
of
process.
K.S.A.
17-6202(a).
This statutory requirement, however, does not make the resulting
receiver of process a Astatutory agent.@
4
Rather, the corporation
has
the
power
to
designate
its
own
agent
and,
thus,
has
a
greater deal of control than it has over a statutory agent.
True
statutory
designated
to
agents
receive
under state law.
are
government
service
of
process
officials
or
other
who
are
documents
These agents are not agents in fact, but as
pointed out earlier, are merely mediums for the transmission of
important papers.
The
court
need
not
determine
whether
service
upon
a
statutory agent starts the thirty-day period under ' 1446(b)
because
service
designated
by
here
the
was
upon
defendant.
a
registered
As
such,
the
agent,
an
agent
thirty-day
time
period began to run when Capitol Corporate Services received the
petition and summons.
Thus, Ring Energy did not timely seek
removal since its notice of removal was filed over thirty days
after receipt of the petition and summons.
The court shall
remand this case to state court due to Ring Energy=s failure to
timely file its petition for removal.
IT IS THEREFORE ORDERED that plaintiff=s motion to remand
(Doc. # 4) be hereby granted.
This case shall be remanded to
the District Court of Gray County, Kansas.
IT IS SO ORDERED.
Dated this 31st day of October, 2014, at Topeka, Kansas.
5
s/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge
.
6
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