A federal judge has ordered that a personal injury suit against an Oklahoma company involving claims of a defective crane must be transferred back to state court, finding that the defendant’s removal of the case was untimely.
U.S. District Judge Joel Slomsky of the Eastern District of Pennsylvania granted plaintiff Eric Scalla’s motion to remand the case from federal court to the Philadelphia Court of Common Pleas.
The parties disagreed over the time process was served, and therefore, whether the removal of the case from state to federal court was timely.
The case stems from a March 2016 incident in which Scalla was working with a KWS F 33210 clevis cradle style grab hook, manufactured by defendant KWS Inc., to move excavation equipment.
According to Slomsky’s opinion, the equipment unexpectedly came unhooked and fell on Scalla’s foot. The injury required an amputation. Scalla alleged the incident was caused by a defective and dangerous condition involving the chain hook.
On Jan. 23, the complaint was served to KWS at its headquarters in Tulsa, Oklahoma. The company’s vice president of operations, Elizabeth Roberts, accepted service on that date.
“According to documents filed with the Office of the Secretary of State of Oklahoma, Roberts is also authorized to receive service of process on behalf of defendant KWS. Neither Roberts nor anyone else at KWS took any action to respond timely to the complaint after receiving it,” Slomsky said.
A return receipt showed that service was complete on the date that Scalla claimed, not five months later as the defendant argued. Still, KWS contested the point.
“The record does not support this argument. Plaintiff’s counsel has submitted an affidavit confirming that the Office of the Secretary of State of Oklahoma issued the documents he relies on,” Slomsky said. “Further, the documents themselves are signed and sealed. They show that from September 8, 2009, to May 31, 2018, Roberts was the registered agent of KWS to accept service of process. This time period covers January 23, 2018, the date that service of the complaint was made on Roberts. Defendant offers no evidence that another registered agent for service of process existed at the time the complaint was served.”
Slomsky added, “Defendant’s further argument that service was improper because the mailing was not addressed to Ms. Roberts is also unpersuasive.”
The judge concluded that because service was rendered on time, the defendant’s removal of the case to federal court was untimely.
“Given that Roberts was an authorized agent to accept service of process, defendant’s time for removal began on January 23, 2018, when it was served with the complaint. Defendant argues that the time for removal began to run on March 27, 2018, the date on which it first received notice of this lawsuit through an email from plaintiff’s counsel attaching the praecipe to enter default judgment. But as discussed above, on January 23, 2018, KWS was properly served with the complaint, and the 30-day time period for removal began to run on this day,” Slomsky said.
The judge did, however, reject Scalla’s request for fees and costs associated with the remand to state court.
“In this case, there was an objectively reasonable basis for seeking removal even though it was untimely and a remand is warranted,” Slomsky said. ”First, there was diversity of citizenship between the parties in this case. Second, though its contentions were unpersuasive, defendant asserted that it received notice of this case for the first time on March 27, 2018, when plaintiff’s counsel sent an email to KWS notifying them that the company was in default for failure to respond to the complaint. There is no reason to believe that defendant’s position is not asserted in good faith.”
Daniel Hessel of Golkow Hessel represents Scalla.
“The defendant’s registered agent and vice president of operations testified that she had a practice of not opening mail unless she recognized the sender, even if the mail was certified and from a law firm,” Hessel said. “We argued that this head-in-the-sand practice of ignoring certified mail did not excuse the failure to remove a lawsuit in a timely fashion. We are pleased Judge Slomsky agreed with us on this issue, and all others, in his thoughtful opinion.”
Michael Falk of Reed Smith, who represents KWS, said, “We disagree with the decision factually and legally, and we are evaluating avenues of appeal.”