United States District Court, W.D. Missouri, Southern Division
ORDER AND OPINION DENYING THIRD-PARTY PLAINTIFF
RONALD HOOT'S MOTION TO REMAND
PHILLIPS, CHIEF JUDGE
lawsuit, originally filed in state court, was removed to
federal court by Third-Party Defendant AT&T Pension
Benefit Plan (the “Plan”) on the basis of federal
question jurisdiction. Third-Party Plaintiff Ronald Hoot
(“Mr. Hoot”) then filed a Motion to Remand, (Doc.
8), which argues the Plan failed to remove this case within
30 days of being served. The Court finds that the Plan timely
removed this case, and the motion is therefore
lawsuit originated in the Circuit Court of Christian County,
Missouri as a dissolution of marriage proceeding between Mr.
Hoot and Third-Party Plaintiff Kelly Hoot (“Ms.
Hoot”) (collectively, the “Hoots”). (Doc.
1-1, pp. 2-3.) As part of that proceeding, the state court
entered a 2004 Qualified Domestic Relations Order
(“QDRO”). (Id.) The QDRO directed how
pension benefits under an employee welfare benefit plan would
be distributed between the Hoots. (Id.) As of
December 2003, the benefits at issue were valued at $25,
092.00. (Id., p. 2.)
February 23, 2018, and with leave of the state court, Mr.
Hoot filed an Amended Motion to Modify Amended Judgment of
Dissolution of Marriage-Qualified Domestic Relations Order.
(Doc. 1-1, pp. 20-21.) The motion joined the Plan as a party,
and alleged that “all parties, and the [state] Court,
agreed that Petitioner, then Mrs. Hoot, was awarded the plan
value as of December 2003, in the amount of $25,
092.00.” (Id., p. 21.) The motion further
alleged that the Plan “has neglected and refused to
carry out the [state] court's QDRO as executed, ”
and moved for an order compelling the Plan to comply with the
QDRO. (Id.) Mr. Hoot also sought an award of his
attorneys' fees for the Plan's failure to
February 14, 2019, the Plan removed the case to this Court on
the basis of federal question jurisdiction. (Doc. 1, pp.
3-6); 28 U.S.C. §§ 1331, 1441. Although Mr.
Hoot's motion does not expressly state a federal claim,
the Notice of Removal argues that removal is proper because
“ERISA completely preempts state law claims that
concern the administration of a benefit plan governed by
ERISA or seek recovery of benefits under an ERISA-governed
Plan.” (Doc. 1, p. 4 (citing cases)).
March 6, 2019, Mr. Hoot filed the pending motion to remand.
(Doc. 8.) The motion does not argue a lack of federal
question jurisdiction. Instead, Mr. Hoot argues the Plan was
served on March 23, 2018, but failed to timely remove the
case within 30 days of that service. See 28 U.S.C.
§ 1446(b). In response, the Plan argues that the
individual served was not authorized to accept service on its
behalf. The Plan further contends it first received notice of
the claims asserted herein on January 15, 2019, and thus
timely removed the case on February 14, 2019. The
parties' arguments are addressed below.
filed in state court that arises under a federal statute may
be removed to federal court. 28 U.S.C. § 1331; Baker
v. Martin Marietta Materials, Inc., 745 F.3d 919, 923
(8th Cir. 2014). Specifically, 28 U.S.C. § 1441
provides that “any civil action brought in a State
court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant”
to federal district court. 28 U.S.C. § 1441(a). To
properly effectuate removal, the defendant must timely file a
notice of removal with the federal district court. 28 U.S.C.
applicable here, the notice of removal “may be filed
within 30 days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3). The 30-day
period for removal is “triggered by simultaneous
service of the summons and complaint, or receipt of the
complaint, ‘through service or otherwise,' after
and apart from service of the summons, but not by mere
receipt of the complaint unattended by any formal
service.” Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 348 (1999). A case should
be remanded back to state court if the defendant fails to
timely file a notice of removal. Cox Contracting v.
Sickle Cell Anemia Found. Inc., 627 Fed. App'x 582,
583 (8th Cir. 2016) (holding that “the district court
properly remanded the case because the notice of removal was
untimely”); Wexberg v. RBS Citizens Bank,
N.A., 2016 WL 687845, at * 2 (E.D. Mo. Feb. 19, 2016)
(“The section 1446(b) time limit, while not
jurisdictional, is mandatory, and a timely motion to remand
for failure to observe the thirty-day limit will be
granted.”) (citations and quotations omitted).
this framework, the dispositive issue is whether the Plan was
properly served on March 23, 2018. If it was, then the
Plan's Notice of Removal filed on February 14, 2019, was
untimely and remand is required.
law provides that service may be made “by delivering a
copy of the summons and petition to an officer, partner, or
managing or general agent, or by leaving the copies at any
business office of the defendant with the person having
charge thereof or by delivering copies to its registered
agent or to any other agent authorized by appointment or
required by law to receive service of process.” Mo.
Sup. Ct. R. 54.13(b)(3) (providing for service on a
corporation, partnership, or unincorporated association);
54.14(b). A signed return of service is prima facie
evidence of service, but this may be rebutted by clear and
convincing evidence. Century Fin. Servs. Grp., Ltd. v.
First Bank, 996 S.W.2d 92, 93 (Mo.Ct.App. 1999); see
also Nationwide Ins. Co. of Am. v. Knight, 2017 WL
2889487, at * 2 (E.D. Mo. July 6, 2017).
support of his motion to remand, Mr. Hoot attached a return
of service which suggests the Plan was served on March 23,
2018. (Doc. ...