Kroger Co v. Door Control Services Inc

Filing 21

MEMORANDUM RULING, it is ORDERED that Kroger's 8 Motion to Remand is GRANTED and that this action be REMANDED to the 14th JDC, Parish of Calcasieu, State of Louisiana. IT IS FURTHER ORDERED that this Order shall be STAYED for 14days, pending any appeal to the District Judge. Signed by Magistrate Judge Kathleen Kay on 10/15/12. (crt,FinnSld, P)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

KROGER CO.

:

DOCKET NO. 12-CV-0956

VS.

:

JUDGE TRIMBLE

DOOR CONTROL SERVICES, INC.

:

MAGISTRATE JUDGE KAY

MEMORANDUM RULING

Before the court is a Motion to Remand [doc. 8] filed by plaintiff, Kroger and opposed by
defendant, Door Control Services, Inc. (DCS). For the reasons set forth below, plaintiff’s motion
is GRANTED.
Background
Kroger originally filed suit on February 3, 2012, in Louisiana’s Fourteenth Judicial
District Court for the Parish of Calcasieu. Doc. 1, att. 9. In the state court petition, Kroger
alleged breach of contract against DCS. In particular, it alleged that between the years 2001
through 2010 DCS failed to keep the doors it sold to Kroger in compliance with the American
Association of Automatic Door Manufacturers certification standards in violation of the terms of
their contract. Id.
DCS removed the suit to federal court on April 20, 2012. Doc. 1. In the notice of
removal, DCS suggests that removal is proper because this court has jurisdiction based on 28
U.S.C. § 1332. Specifically, DSC states, “there is complete diversity of citizenship between the
parties, and the damages plaintiff has placed in controversy are in excess of $75,000.” Id. at ¶2.
DCS further suggests that “[p]laintiff has never effected service or delivery of citation or
summons upon Your Remover, though, and the first notice of its existence to Your Remover was
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by undersigned on April 18, 2012.” Doc. 1, ¶13. It contends that the petition and citation were
sent to “an address for Your Remover that does not exist.” Id. at ¶16. DCS concludes that since
it filed its notice of removal on April 20, 2012, two days after it alleges it received notice of the
suit, removal is timely.
On May 18, 2012, Kroger filed the instant motion to remand. Doc. 8. Kroger does not
dispute that there is complete diversity between the parties and that the amount in controversy
exceeds $75,000. Instead, Kroger argues in its motion to remand that DCS’s notice of removal is
untimely. Kroger contends that DCS has failed to meet the procedural requirements of 28 U.S.C.
§ 1446(b) in that the notice of removal was filed beyond thirty (30) days of service of process.
Kroger asserts that it served DCS’s agent for service of process via the Louisiana Long Arm
Statute at the latest on March 8, 2012. Kroger asserts that it complied with all requirements of
the long arm statute and proper service was perfected upon DCS. Therefore, Kroger concludes
that the removal was untimely when DCS filed its notice on April 20, 2012, more than thirty (30)
days after service.
DCS opposes remand for several reasons. First, it argues that Kroger attempted service
for DCS at an address that is no longer in existence and that that Kroger had actual knowledge of
its correct address and should have made service on it there. Next, it asserts that Kroger’s
attempted service did not provide it with “actual notice” of the lawsuit and the “unclaimed” letter
does not constitute a “refusal” to accept service. Finally, it contends that Kroger failed to
comply with certain procedural requirements of the Louisiana Long Arm Statute.
Law and Analysis
Section 1441 of Title 28, United States Code, provides that “any civil action brought in a
State court of which the district courts of the United States have original jurisdiction, may be

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removed by the defendant or the defendants, to the district court of the United States for the
district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a).
If removal is based on diversity of citizenship, the action is removable only if there is complete
diversity and “none of the parties in interest properly joined and served as defendants is a citizen
of the State in which such action is brought.” 28 U.S.C. § 1441(b).
According to 28 U.S.C. 1446(b) the notice of removal “shall be filed within 30 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 …” The Supreme Court
clarified this language in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 34748 (1999), holding that a defendant's thirty-day removal period commences on formal service of
process, not merely on receipt of actual notice of the complaint through informal channels.
Although federal law requires the defendant to file a removal motion within thirty days of
service, the term “service of process” is defined by state law. Id. at 352-53. So, in order to
determine whether plaintiff complied with § 1446(b), we must look to see what constitutes
service of process under Louisiana law.
The Louisiana Long Arm Statute, LA.REV.STAT. 13:3204, provides:
a certified copy of the citation … and of the petition … shall be sent by counsel
for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant
by registered or certified mail, or actually delivered to the defendant by
commercial courier, when the person to be served is located outside of this state
or by an individual designated by the court in which the suit is filed, or by one
authorized by the law of the place where the service is made to serve the process
of any of its courts of general, limited, or small claims jurisdiction.
Kroger presented evidence that it served DCS, a Texas Corporation with its principal
place of business in Ben Wheeler, Texas via the Louisiana Long Arm Statute by mailing a
certified copy of the Citation and Petition to DCS’s agent for service of process on February 13,

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2012. Doc. 8, att. 5. Counsel for Kroger mailed the Citation and Petition to the registered agent,
Don Gilchrist, at Rt. 1 Box 643, Ben Wheeler, TX. 75754, the address provided by the Texas
Secretary of State. Doc. 8, att. 3. According to the United States Postal Service tracking
information, notice was left at DCS on February 18, 2012. 1 Doc. 8, att. 6. On March 8, 2012
the United States Postal Service designated the item “unclaimed” and returned it to the sender,
counsel for Kroger, on March 15, 2012. Id.
DCS asserts that in approximately 1998, although the physical location of its facility did
not move, the United States Postal Service changed its address from “Rt. 1 Box 643” to “321 VZ
County Road 4500.” Doc. 12, p. 7. DCS concedes, however, that it did not and still has not
changed the address of its registered agent with the Texas Secretary of State. Doc. 12, p. 7.
DCS contends that Kroger had actual knowledge of its correct physical address due to other
ongoing litigation between the parties and should have served it at its new address. DCS argues
in brief that Kroger knew precisely where it could be served but instead, “chose to forward
service to an address known to be incorrect and waited until [it] believed the removal delays had
passed” to provide DCS with a copy of the lawsuit. Doc. 12, p. 15.
The court is not persuaded by this argument. The court finds that Kroger did all that was
required of it under Louisiana law to perfect service upon an out of state defendant. Kroger
relied on the public record provided by the Texas Secretary of State to issue service on DCS’s
registered agent as required by law. As noted by Kroger, if it would have served DCS at its new
address rather than that which was officially provided to the Texas Secretary of State, it could be
subjecting itself to an exception of improper service by DCS. We agree and conclude that the
evidence shows Kroger properly followed the procedure set forth in LA.REV.STAT. 13:3204 for
1

Counsel for Kroger notes that on the front of the envelope it appears that the United States Postal Service left
additional notices on the dates of February 23 and March 3, 2012. Doc. 8, att. 5, p. 3. This, however is not included
in the tracking information provided by the United States Postal Service.

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service of process on an out of state defendant. Additionally, we find no evidence of forum
manipulation or any reason to suspect any impious intent on the part of Kroger as suggested by
DCS in its memorandum.
Relying on the case of Tripp v. Pollard, 1992 WL 236937 (E.D. La. Sept. 1, 1992), DCS
next contends that the fact that the certified letter went “unclaimed” does not constitute a
“refusal” to accept service. It argues that under Tripp a defendant must receive actual notice of
the suit in order to effectuate service. It submits an affidavit of Don Gilcrist, the owner of DCS
who states that DCS was unaware of any attempts by the United States Postal Service to serve it
with the certified letter containing the subject lawsuit and he knows of no reason why service
was not perfected. Doc. 12, att. 1. DCS urges the court to follow the reasoning in Tripp and find
that since it did not receive actual notice of the suit by way of Kroger’s long arm service, the
service was ineffective.
In Tripp, plaintiff attempted to serve the defendant Pollard by (1) private process server,
(2) sending a certified copy of the summons and complaint to defendant’s parents home in
Florida, (3) leaving a copy of the summons and complaint at defendant’s alleged home in
Louisiana, (4) sending a certified copy of the summons and complaint to defendant’s home in
Florida, and (5) serving a copy of the summons and complaint on the Louisiana Secretary of
State. Id. at *1. The court found that service was accomplished “when plaintiff sent by certified
mail a certified copy of the complaint and summons to defendant’s residence in … Florida.” Id.
The court noted that under the facts of this particular case, the defendant could not “contest that
he has had actual notice of this suit for at least several months.”2 The court went on, “[t]his
action does not present a situation where defendant … had no notice of the pending litigation
2

Pollard was represented by the same counsel as a co-defendant that had been an active participant in the lawsuit
and in connection with a motion filed by the co-defendant Pollard executed an affidavit contesting the location of his
residence.

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when the certified letter was sent; rather, it is clear that he had notice for some time” and the
court stated that there were “strong indications that [defendant] has been actively avoiding
service.” Id. at *4.
The Tripp court clearly rejected defendant’s argument that because the certified mail was
returned unclaimed, service pursuant to the Louisiana Long Arm Statute was invalid. The court
stated, “[a] defendant cannot defeat service pursuant to LA.REV.STAT. 13:3204(A) by simply
refusing to accept the certified letter.” Id. at *3.
Although the Tripp court discussed an “actual notice” element in its holding, Judge Sear
wrote, “I believe that ‘actual notice’ particularly under the facts of this case, should not be read
to create an additional implied statutory requirement that a defendant personally receive or
acknowledge the mailed service in all cases.” Id.
The text of LA.REV.STAT. 13:3204 does not indicate whether the defendant must actually
receive service in order to be effective, however Louisiana case law is clear that:
all that is necessary to constitute service upon a non-resident under the long-arm
statute is that counsel for the plaintiff send a certified copy of the citation and of
the petition in the suit to the defendant by registered or certified mail, or actually
deliver it in person. There is no requirement under § 3204 for a signed return
receipt.
HTS, Inc., v. Seahawk Oil & Gas, Inc., 889 So.2d 442, 444 (La.App. 3 Cir.2004) quoting
McFarland v. Dippel, 756 So.2d 618, 622 (La.App. 1 Cir.2000).

Cases decided subsequent to the decision in Tripp confirm that Tripp did not add a new
requirement of “actual notice” to the law governing long arm service. See Hamilton v. AlvaradoCruz, 2009 WL 2175995 * 3 (M.D. La. July 21, 2009) (“service by mail does not require proof
that the process was actually delivered to the party served”); Dupree v. Torin Jacks, Inc., 2009
WL 366332 *2 (W.D. La. Feb. 12, 2009) (the court found that service was proper even though
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no signed return receipt was in the record because the record did contain an affidavit from
plaintiff’s counsel documenting service of citation and petition by certified mail); Stogner v
Neilsen & Hiebert Sys., Inc., 2008 WL 4587304 *3 (E.D. La. Oct. 15, 2008) (there is no actual
delivery requirement for service by mail).
Considering the above cases, the court finds that the Tripp case is inapplicable to the facts
before it and rejects DCS’s argument that actual notice of the lawsuit is required for service
under the Louisiana Long Arm Statute.
Finally, DCS argues that Kroger has failed to comply with the procedure set out in the
Louisiana Long Arm Statute by failing to file the affidavit of mailing as required by
LA.REV.STAT. 13:3205. According to 13:3205, no default judgment or contradictory hearing can
be held until 30 days after the filing of the affidavit of mailing. Since Kroger did not file the
affidavit until it attached it as an exhibit to its motion to remand, DCS argues that plaintiff has
failed to comply with the requirements of 13:3205 and the motion to remand should be
dismissed.
In response, Kroger argues that LA.REV.STAT. 13:3205 only comes in to effect if the
plaintiff is seeking a default judgment or hearing on a contradictory motion or other summary
proceeding against the defendant. It argues that the affidavit is not required to be filed to
effectuate proper service. Furthermore, Kroger asserts that even if the affidavit is required to be
filed, it was filed more than 30 days prior to this court’s hearing on the Motion to Remand.
In order for service to be perfected, plaintiff need only comply with 13:3204. Section
3205 is triggered if and when plaintiff attempts to obtain a default judgment, have a hearing on a
contradictory motion, rule to show cause, or other summary proceeding. Dupree v. Torin Jacks,
Inc., 2009 WL 366332 (W.D. La. Feb. 12, 2009). The statute, titled “[d]efault judgment;

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hearings; proof of service of process,” states:
No default judgment can be rendered against the defendant and no hearing may be
held on a contradictory motion, rule to show cause, or other summary proceeding,
except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing
in the record of the affidavit …
LA.REV.STAT. 13:3205
The court finds that 13:3205 is not applicable to the validity of service of process and
therefore has no bearing on the issue of whether or not DCS timely removed within 30 days of
service. The evidence in the record indicates that Kroger properly served DCS’s agent for
service of process via the Louisiana Long Arm Statute at the latest on March 8, 2012. Therefore,
DCS’s notice of removal filed on April 20, 2012, more than thirty (30) days after service is
untimely.
Conclusion
For the foregoing reasons, it is ORDERED that Kroger’s Motion to Remand [doc. 8] is
GRANTED and that this action be REMANDED to the Fourteenth Judicial District, Parish of
Calcasieu, State of Louisiana.
IT IS FURTHER ORDERED that this Order shall be STAYED for a period of fourteen
days, pending any appeal to the District Judge. If an appeal is taken to the District Judge, the
Order shall remain stayed until the appeal is decided. If no timely appeal is filed, the Clerk shall
refer the action forthwith.
THUS DONE this 15th day of October, 2012.

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