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Hoot v. Hoot

United States District Court, W.D. Missouri, Southern Division

April 29, 2019

KELLY LYNN HOOT, Petitioner/Third-Party Plaintiff,
v.
RONALD EDWARD HOOT, Respondent/Third-Party Plaintiff,
v.
AT&T PENSION BENEFIT PLAN, Third-Party Defendant.

          ORDER AND OPINION DENYING THIRD-PARTY PLAINTIFF RONALD HOOT'S MOTION TO REMAND

          BETH PHILLIPS, CHIEF JUDGE

         This 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 DENIED.

         I. BACKGROUND [1]

         This 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”).[2] (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.)

         On 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 comply.[3]

         On 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)).

         On 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.

         II. APPLICABLE LAW

         A case 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).[4] 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. § 1446.

         As 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).

         III. DISCUSSION

         Under 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.

         Missouri 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).[5] 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).

         In support of his motion to remand, Mr. Hoot attached a return of service which suggests the Plan was served on March 23, 2018. (Doc. ...


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