Beck v. Atlantic Contracting Co.

157 F.R.D. 61, 1994 U.S. Dist. LEXIS 10708, 1994 WL 398267
CourtDistrict Court, D. Kansas
DecidedJune 30, 1994
DocketNo. 93-2480-JWL
StatusPublished
Cited by19 cases

This text of 157 F.R.D. 61 (Beck v. Atlantic Contracting Co.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beck v. Atlantic Contracting Co., 157 F.R.D. 61, 1994 U.S. Dist. LEXIS 10708, 1994 WL 398267 (D. Kan. 1994).

Opinion

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

This action involves claims by plaintiff against defendant for wrongful discharge, including a claim for loss of consortium. Plaintiff filed his action on November 23, 1993. Plaintiff contends that he effectuated valid service of the summons and complaint on defendant by means of certified mail as provided for in the Federal Rules of Civil Procedure and the Statutes of Kansas. Defendant has failed to answer or otherwise respond to defendant’s complaint.

This matter is currently before the court on plaintiffs motion for default judgment (Doc. # 8). In his motion, plaintiff contends that he effectuated valid service on defendant by certified mail and, consequently, defendant’s failure to answer or otherwise respond to his complaint entitles him to a default judgment from this court. Plaintiff seeks judgment in the amount of $49,407.00 in lost wages; $150,000.00 for emotional distress and mental anguish; $25,000.00 for loss of consortium; $5,000,000.00 for punitive damages; and his costs and reasonable attorney’s fees. A hearing was held on this matter March 4, 1994 and the court took the matter under advisement pending additional briefing on the issues of service and damages, which has now been received and reviewed by the court.

A Validity of Service of Process

The first question the court is faced with in plaintiffs motion is whether plaintiff properly effectuated service on defendant via certified mail. Defendant is a Virginia corporation engaged in the construction business which was doing business in the state of Kansas at the time of the acts giving rise to plaintiffs cause of action. In his motion, counsel for plaintiff avers that, when attempting to determine whom to serve on behalf of defendant, he discovered that defendant had no named resident agent for the state of Kansas. He did determine, however, that defendant’s resident agent in the state of Virginia was one Melvin J. Radin, Esq., whose address he obtained from the Virginia Corporations Division of the Secretary of State’s office.

On the date plaintiff filed this action, he served the summons and complaint given to him by the clerk of the court upon defendant by certified mail, return receipt requested, which certified mail was accompanied by instructions to the postal employee to show to whom the mail had been delivered, the date of delivery, and the address where delivered. Said summons and complaint were also accompanied by two copies of a notice and acknowledgement conforming substantially to form 18-A contained in the Appendix of Forms to the Federal Rules of Civil Procedure. The entire package was sent via certified mail to Melvin J. Radin, defendant’s registered agent in the state of Virginia, at the Norfolk, Virginia address for such agent on file with the Virginia Corporations Division of the Secretary of State’s office.

In early December, plaintiffs counsel received the domestic return receipt associated with the certified mail transmission, indicating that the summons and complaint had been received by “Mary Villenes.” Counsel for plaintiff avers that he subsequently dis[63]*63covered that Mary Villenes is an individual employed at Mr. Radin’s office as Mr. Ra-din’s secretary. He further avers that he was informed by a receptionist at that office that Ms. Villenes sometimes filled in at the front desk and was authorized to receive packages and official documents when doing so.

Federal Rule of Civil Procedure 4(e), in force at the time service was made,1 allowed process to be served outside the state in which the federal court sits “under the circumstances and in the manner prescribed in the statute or rule” of the state in which the district court sits. The Kansas long-arm statute, K.S.A. § 60—308(b)(1), provides that a person (including a corporation) that commits a tortious act within the state submits to in personam jurisdiction for causes of action arising out of the commission of that act. The cause of action alleged against the defendant in this case arose out of the commission of an alleged tortious act (the wrongful termination) within the state of Kansas.

K.S.A. § 60-308(e) allows service to be made on such a defendant outside the state by certified mail “addressed to the person to be served in accordance with K.S.A. § 60-304.” That same section provides that such service “shall be considered obtained ... upon the delivery of the certified mail envelope.” The “person to be served” in the case of a domestic or foreign corporation, as provided in K.S.A. § 60-304(e), is “an officer ... or a resident, managing or general agent” of the corporation. The same section provides that service by certified mail “on an officer, partner or agent shall be addressed to such person at the person’s usual place of business.”

K.S.A. § 60-308(e) authorizes service to be made by certified mail by the attorney for a party “pursuant to this subsection ... evidenced by return receipt signed by any person or by restricted delivery.” The certified mail must be addressed to “the person to be served in accordance with K.S.A. 60-304,” but there is no requirement that the mail be delivered to that person. The section does require that a return receipt must be requested “with instructions to the delivering postal employee to show to whom delivered, date of delivery and address where delivered.” There is no provision in the section, however, that would serve to invalidate the service if the postal employee fails to perform his or her duty with respect to noting the requested information on the return receipt. The section says that service is obtained upon delivery of the certified mail envelope. The other provisions in the section relate to proof of service. Defects in the proof of service do not invalidate the service, since, by plain language of the statute, service is complete on delivery of the certified mail, addressed as required by the rule, to anyone at the appropriate address.

In this case, the return receipt shows that the certified mail was correctly addressed to a person authorized under K.S.A. 60-304 to accept service, namely a “resident agent” of the corporation. Further, it shows that plaintiff requested “restricted delivery,” as provided by K.S.A. 60-308(e), but that restricted delivery was not made. Instead of being delivered directly to Mr. Radin, the registered agent, the certified mail was delivered to Ms. Villenes, an employee in Mr. Radin’s office.

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Cite This Page — Counsel Stack

Bluebook (online)
157 F.R.D. 61, 1994 U.S. Dist. LEXIS 10708, 1994 WL 398267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beck-v-atlantic-contracting-co-ksd-1994.