United States Court of Appeals
Fifth Circuit
F I L E D
In the October 5, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-61057
Summary Calendar
_______________
CITY OF CLARKSDALE,
ACTING BY AND THROUGH THE CLARKSDALE PUBLIC UTILITIES COMMISSION,
Plaintiff-Appellant,
VERSUS
BELLSOUTH TELECOMMUNICATIONS, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
______________________________
Before DAVIS, SMITH, and DENNIS, After denying the city’s motion for reconsider-
Circuit Judges. ation, the district court certified the issue of
timeliness of removal for interlocutory appeal.
JERRY E. SMITH, Circuit Judge:
The timeliness of removal turns on when, if
The City of Clarksdale, acting by and at all, service was effected on BellSouth.1 We
through the Clarksdale Public Utilities Com-
mission, appeals the denial of a motion to
remand to state court for failure by defendant 1
The city, as appellant, frames the sole issue on
BellSouth Telecommunications, Inc. (“Bell- interlocutory appeal as follows:
South”), to file its notice of removal timely.
(continued...)
conclude that service of process was not ney’s fees.
effected when the city’s process server left the
citation and other papers at the office of Bell- BellSouth is incorporated in Georgia and
South’s authorized agent for service, but on a does business in Mississippi. Prentice-Hall
day when the authorized agent’s office was Corporation (“Prentice-Hall”) acts as Bell-
closed. The result is that even if service was South’s Mississippi registered agent for ser-
effected on the date when the authorized vice of process.
agent’s office reopened for business, Bell-
South’s removal was timely, and if service was On Wednesday December 24, 2003, the
never effected, BellSouth voluntarily appeared city’s process server, Sally Green, sought to
in federal court by answering after removal. serve process on BellSouth through Prentice-
We therefore affirm the district court’s denial Hall. She entered the multi-tenant building
of the city’s motion to remand to state court, where Prentice-Hall keeps an office. On the
and we remand to the district court for further front door of the building, a sign stated that
proceedings. Prentice-Hall’s offices were closed for the
Christmas Holidays on Wednesday through
I. Friday, December 24-26, 2003, and the record
A. is undisputed that it was closed on December
In 1954, the city entered into a contractual 24 and did not reopen until Monday De-
agreement with BellSouth’s predecessor in cember 29.
interest. After years of dispute between the
two corporations over the obligations arising Inside the building, Green stated her pur-
from the agreement, the city sued in state pose to an unidentified man who pointed out
court on December 23, 2003, seeking declara- an office, the door to which was open, and in-
tory and injunctive relief, damages, and attor- dicated the inbox where papers could be de-
posited for Prentice-Hall. Green placed the
summons and complaint in this inbox. Both
1 documents show the date of filing with the
(...continued)
Whether, under Rule 4 of the Mississippi Rules
court (December 23) but not the date Green
of Civil Procedure, a summons and complaint attempted service (December 24). Five days
is deemed to be served on the date upon which later, Green filed the return of service with the
the summons and complaint are delivered to the state Chancery Court, stating that service of
office of a corporate registered agent for pro- process had been accomplished on December
cess and deposited in a box for that purpose in 24 by personal service on Prentice-Hall.
accordance with the custom and practice of the
registered agent for process or is the date of ser- On January 28, 2004, BellSouth filed an an-
vice deemed to be a subsequent date upon swer and notice of removal.2 The precise date
which an employee of the corporate registered
agent for process physically picks up the sum-
2
mons and complaint deposited in the box and BellSouth’s notice of removal bases federal
processes it for its principal? jurisdiction based on diversity of citizenship. 28
U.S.C. § 1332(a) (1993 & Supp. 2005). The
The issue, then, as framed by the appellant, is one amount in controversy exceeds the statutory mini-
of the timing, rather than the sufficiency, of service mum of $75,000, because the damages alone would
of process. (continued...)
2
on which service was legally accomplished is 29. Neither party offers evidence establishing
relevant, because if it is December 24, then in whose inbox Green placed the service doc-
BellSouth’s attempted removal on January 28 uments or explaining how service was received
was untimely as outside the thirty-day limit. without the appointed employees’ ever laying
hands on it. Nonetheless, the district court
B. reasoned that Prentice-Hall received service of
BellSouth claims to have filed the notice of process because employees were present in the
removal within the thirty-day window for re- office on December 29.
moval, see 28 U.S.C. § 1446(b) (1994), be-
cause it alleges that service of process oc- Some evidence was submitted to the district
curred on December 29. Supporting this alle- court that Green had acted in accordance with
gation, the service documents BellSouth re- “the custom and practice of Prentice-Hall to
ceived from Prentice-Hall are stamped with accept service of process of papers placed in a
that date. Additionally, BellSouth reasons that basket located in Prentice-Hall’s office for that
Prentice-Hall could not have received service purpose.” Prentice-Hall denies the existence
when it was closed for the holiday; therefore, of such custom and practice. The district
after the holiday started, the first possible day court disallowed further discovery on the
for Prentice-Hall to receive service was De- issue, finding it irrelevant to the issue of on
cember 29, when employees returned to the what date the corporation accepted service. In
office. denying the city’s motion to remand, the court
held that because a corporation can act only
The district court made no findings of fact through its human employees, service of pro-
regarding who accepted service, and the re- cess could have occurred only on December
cord shows confusion on this matter. The em- 29, when employees of Prentice-Hall returned
ployee designated to receive service for Bell- to the office. Therefore, BellSouth argues that
South testified by affidavit that his inbox was its notice of removal was timely.3
empty on both December 24 and December
3
We have jurisdiction over this appeal of an in-
2
(...continued) terlocutory order under 28 U.S.C. § 1292(b)
exceed $90,000. BellSouth is incorporated in (1993), which reads in pertinent part:
Georgia and has its principal place of business in
Georgia. The City of Clarksdale and the Clarks- When a district judge, in making in a civil
dale Public Utilities Commission are citizens of action an order not otherwise appealable . . .
Mississippi for diversity purposes. Moor v. shall be of the opinion that such order involves
County of Alameda, 411 U.S. 693, 717 (1973) a controlling question of law as to which there
(“[It is] recognized that a political subdivision of a is substantial ground for difference of opinion
State, unless it is simply ‘the arm or alter ego of and that an immediate appeal from the order
the State’ is a citizen of the State for diversity pur- may materially advance the ultimate termin-
poses.”); PYCA Indus., Inc. v. Harrison County ation of the litigation, he shall so state in writ-
Waste Water Mgmt. Dist., 81 F.3d 1412, 1416 ing in such order. The Court of Appeals . . .
(5th Cir. 1996) (citing Tradigrain, Inc. v. Miss. may thereupon, in its discretion, permit an ap-
State Port Auth., 701 F.2d 1131, 1132 (5th Cir. peal to be taken from such an order, if applica-
1983)) (recognizing that state agencies, which are tion is made to it within ten days . . . .
independent of the state, are citizens of the state). (continued...)
3
II. Inc., 526 U.S. 344, 347-48 (1999), holding
A. that a defendant’s thirty-day removal period
1. commences on formal service of process, not
We review de novo the denial of a motion merely on receipt of actual notice of the com-
to remand to state court.4 Title 28 U.S.C. plaint through informal channels.
§ 1446 governs the procedure for removal
from state to federal court and requires the de- Although federal law requires the defendant
fendant in a civil action to file a notice of re- to file a removal motion within thirty days of
moval within thirty days “after the receipt by service, the term “service of process” is de-
the defendant, through service or otherwise, of fined by state law.6 So, to determine whether
a copy of the initial pleading setting forth the the city complied with § 1446(b), we must
claim for relief upon which such action or pro- look to see what constitutes service of process
ceeding is based . . . .”5 28 U.S.C. § 1446(b). on a foreign corporation under Mississippi
The Supreme Court clarified this language in law.
Murphy Bros., Inc. v. Michetti Pipe Stringing,
2.
Mississippi law prescribes how a plaintiff is
3
(...continued) to serve process on a defendant corporation.
The district court so stated, and the city timely filed
a motion for leave to take an interlocutory appeal
on the timeliness issue. 6
See Murphy Bros., 526 U.S. at 352-53 (ex-
amining the procedures in various states for in-
A panel of this court granted that motion. itiating suit and the effect the differences among
Specifically, the orders that this court has certified states will have on federal removal statute). For a
for interlocutory appeal are the order entered Sep- federal district court to have jurisdiction over a
tember 15, 2004, denying the city’s motion to re- case removed from state court, the state court must
mand, and the order entered October 6, 2004, de- first have jurisdiction. Lambert Run Coal Co. v.
nying the city’s motion for reconsideration. As this Baltimore & Ohio R.R., 258 U.S. 377, 382 (1922)
court stated in its order of November 22, 2004, (“If the state court lacks jurisdiction of the subject-
granting the city’s motion for leave to appeal, both matter or of the parties, the federal court acquires
of the district court’s orders now under review none . . . .”). For this reason, we look to state law
center on the question whether BellSouth’s removal to verify that service of process effectively brought
was timely. the defendant within the state court’s jurisdiction.
See Woodham v. Northwestern Steel & Wire Co.,
4
City of New Orleans v. Mun. Admin. Servs., 390 F.2d 27 (5th Cir. 1968) (“In determining the
Inc., 376 F.3d 501, 503-04 (5th Cir. 2004) (citing validity vel non of service of process on a foreign
Miller v. Diamond Shamrock Co., 275 F.3d 414, corporation, the court must, in each instance,
417 (5th Cir. 2001)). consider the particular facts of the case sub
5 judice and apply to these facts the law of the
Additionally, § 1446 permits service of the
summons, without the complaint, when the com- forum state.”); USATorres v. Marina
plaint has been filed with the court. Rule 4(a)(2) of Mercante Nicaraguenses, 768 F.2d 1285,
the Mississippi Rules of Civil Procedure, however, 1286 n.1 (11th Cir. 1985) (“A federal court
requires service of both the summons and com- may consider the sufficiency of process after
plaint, rendering this second provision inapplicable removal and does so by looking to the state
here. law governing process.”).
4
MISS. CODE ANN. § 13-3-49 (2002).7 “If the corporation. Id.10
defendant in any suit or legal proceeding be a
corporation, process may be served on the These statutes authorize service on any
president or other head of the corporation, up- agent of a corporation, and an agent includes
on the cashier, secretary, treasurer, clerk, or the registered agent, which itself may be a cor-
agent of the corporation, or upon any one of poration. Therefore, the statute authorizes
the directors of such corporation.” Id. (em- service on a registered-agent corporation it-
phasis added). The state statute defines “agent self—not a human employee thereof. It ap-
of the corporation” for service of process as pears that the statutes have drawn a distinction
the registered agent of the foreign corpora- between corporations, in general, and regis-
tion.8 Foreign corporations authorized to tered-agent corporations.
transact business in Mississippi are required to
maintain, within the state, a registered office Title 13 of the Mississippi Code also stipu-
and a registered agent.9 MISS. CODE ANN. lates that the rules of process contained therein
§ 79-4-15.07 (2001). A registered agent is de- are subordinate to the Mississippi Rules of
fined as an individual, a not-for-profit, or a
10
BellSouth asserts that the purpose of a regis-
7
Title 13 of the Mississippi Code contains no tered agent is to ensure that foreign corporations
definition of “corporation.” See MISS. CODE ANN. obtain actual notice of cases pending against them
Title 13 (2002 & Supp. 2004). Title 79, by con- in the state. This is one purpose of the statutes.
trast, defines “corporation” seven times in various See First Jackson Secs. Corp. v. B.F. Goodrich
contexts, drawing distinctions between forms of Co., 176 So. 2d 272, 275-76 (Miss. 1965) (reading
corporations such as “domestic” and “foreign” cor- the statutes requiring a domestic corporation to ap-
porations. See, e.g., MISS. CODE ANN. § 79-4- point a registered agent as seeking to ensure the
1.40 (Supp. 2004) (defining “corporation” and corporation an opportunity to respond to pending
“domestic corporation” as “a corporation for prof- litigation).
it, which is not a foreign corporation . . .”). Be-
cause Title 13 does not contain this sort of dif- In the context of foreign corporations, these
ferentiation, we understand the word “corporation” statutes, which are common throughout the United
in Title 13 to include all forms of corporations but States, are designed to ensure that citizens can col-
the same word in Title 79 to refer only to the lect debts from, and enforce contracts with, the
specifically delineated form. Therefore, Title 13’s foreign corporation. Stavang v. Am. Potash &
prescription on service where the defendant is a Chem. Corp., 227 F. Supp. 786, 787 (S.D. Miss.
corporation applies equally to domestic, foreign, 1964) (citing 18 FLETCHER ON CORPORATIONS
and registered-agent corporations. 343, 344); 18 FLETCHER CYCLOPEDIA OF PRIVATE
CORPORATIONS § 8697 (2004). “The manifest in-
8 justice which would ensue if a foreign corporation,
The same is true for domestic corporations:
“A corporation’s registered agent is the corpora- permitted by a state to do business therein, and to
tion’s agent for service of process . . . required or bring suits in its courts, could not be sued in those
permitted by law to be served on the corporation.” courts, has induced the states to provide by statue
MISS. CODE ANN. § 79-4-5.04(a) (2001) that a foreign corporation doing business in the
state shall appoint an agent residing therein, upon
9
The requirement also applies to domestic cor- whom process may be served in actions arising out
porations. See MISS. CODE ANN. § 79-4- of such business or upon contracts made in the
5.01(2001). state.” Id.
5
Civil Procedure. MISS. CODE ANN. § 13-3-1 ceived service. The court determined that
(2002). Though several rules address service service was insufficient, so there was no per-
of various types, service of process is entirely sonal jurisdiction over the defendant corpora-
controlled by rule 4.11 tion.13
Rule 4(d) is entitled “Summons and Com- The Mississippi Supreme Court reiterated
plaint: Person to be Served.” The rule permits this understanding in First Jackson,14 in which
service on a foreign or domestic corporation the issue was which employees may accept
by “delivering a copy of the summons and of service of process, not whether a human being
the complaint to an officer, a managing or gen- need accept service. There, a secretary re-
eral agent, or to any other agent authorized . . ceived service for a domestic corporation but
. by law to receive service of process.” MISS. failed to deliver the papers to the appropriate
R. CIV. P. 4(d)(4). As stated above, the Mis- persons. The plaintiff argued that service on
sissippi Code defines the agents authorized to any employee of the corporation is service on
receive process as including registered an agent of the corporation and is therefore
agents.12 sufficient. First Jackson, 176 So. 2d at
274-75.
3.
BellSouth contends that under rule 4, ser-
vice on Prentice-Hall, as registered agent, 13
Anderson Mercantile examines Section 3932,
must be made by handing the process papers Code of 1906 (Section 2939 Hemingway’s Code),
directly to a person at Prentice-Hall’s offices which “provides for the manner and effect of the
who is authorized to accept service. As we service of process on corporations.” Anderson
will explain, we find it unnecessary to decide Mercantile, 90 So. at 12. This is the antecedent
that specific question. We determine, instead, statute to Mississippi Code Annotated § 13-3-49
that under the facts of this case, service was “Service when a defendant is a corporation.”
effected on BellSouth through Prentice-Hall Although Anderson Mercantile does not specify
no earlier than December 29, when Prentice- whether the defendant corporation is a domestic or
foreign corporation, it is relevant to the current
Hall’s offices reopened for business after the
analysis, because we understand the statute being
holiday. discussed to apply equally to all types of corpora-
tions. See supra note 5.
The opinion in Anderson Mercantile Co. v.
Cudahy Packing Co., 90 So. 11 (Miss. 1921), 14
In Anderson Mercantile and First Jackson,
is helpful. There, an individual received ser- the wording of the statute prescribing service on a
vice for the corporation (apparently, though corporation is exactly the same: “If the defendant
the case does not provide detailed facts). The in any suit or legal proceeding be a corporation,
return of service indicated personal delivery on process may be served on the president or other
the corporation, without identifying who re- head of the corporation, upon the cashier, secre-
tary, treasurer, clerk, or agent of the corporation,
or upon any one of the directors of such corpora-
11 tion.” Anderson Mercantile, 90 So. at 12; First
See comment to MISS. R. CIV. P. 5, MISSIS-
SIPPI RULES OF COURT 12 (West 2004). Jackson, 176 So. 2d at 275. The registered agent
provisions, examined in First Jackson, did not exist
12
MISS. CODE ANN. §§ 79-4-5.04(a), 79-4- in 1921 when Anderson Mercantile was decided.
15.10(a).
6
The court disagreed, finding that not all em- Id. at 968.
ployees are agents of the corporation. The
court arrived at this conclusion by examining The city argues, in response, that Tech
dictionary definitions of “agent” instead of any Hills is inapposite, because here the agent au-
statutory definitions. Id. at 275-76, 278. The thorized to receive service is itself a corpora-
court declared that “where the defendant is a tion that, unlike a natural person, does “not
corporation the process must be delivered or hav[e] a physical corpus with the ability to
served on an official or proper person on reach out and hold a tendered document.” In-
behalf thereof.” Id. at 276. stead, the city reasons that Prentice-Hall has
the “custom and practice, when no one was
In Public Employees’ Retirement System v. present in the Prentice[-]Hall office and the in-
Dillon, 538 So. 2d 327 (Miss. 1989), the court ner office of Prentice[-]Hall was physically
cited the provisions of Mississippi Rule of Civ- open, of accepting the service of legal docu-
il Procedure 4(d)(4) as allowing service on a ments served in a designated basket.”
corporation by, inter alia, delivery on an
appointed agent. The court pointed out that We disagree. As BellSouth replies, there
rule 4(d)(5) permits service on a corporation was no one present on December 24 at Pren-
by first class mail. This undercuts BellSouth’s tice-Hall’s office who was vested with appar-
contention that service on a corporate regis- ent authority to accept papers. The result is
tered agent must always be directly on a natu- that in the intervening five days, there was no
ral person authorized by that corporation. one to notify BellSouth that it had been sued,
so BellSouth was deprived of five of the thirty
On the other hand, we are persuaded by a days the statute allows it to effect removal.
case on which BellSouth relies, Tech Hills II v. Moreover, the city does not suggest that it re-
Phoenix Home Life Ins. Co., 5 F.3d 963 (6th lied on any such “custom and practice.”
Cir. 1993). Although that decision is not bind-
ing on this court or on the Mississippi courts, Accordingly, it does not matter, in this
the facts are similar. There, delivery of the case, whether the law requires that service on
summons was made to a security guard (who a registered-agent corporation be made by
was not authorized to accept service of pro- handing the papers directly to a person autho-
cess) on a Saturday when the offices were rized to receive them, or instead, whether it is
closed. In determining whether removal was sufficient for them to be placed in a designated
proper, the court reasoned as follows: place (such as a basket) for processing in the
normal course of business. The point here is
We hold that delivery at defendant’s place that leaving the papers in a basket on a day
of business on a Saturday, when the offices when no one would or could process them
are closed, to a security guard, who is not cannot, under the rationale of Tech Hills and
authorized to receive service on behalf of the other cases cited, constitute service until
the corporation, is not receipt under the re- such time as the office reopens and the papers
moval statute. The removal period was can be processed and sent to the principal.
commenced on Monday when the com-
plaint was delivered to and thus, received B.
by an authorized representative of [the As we have said, the district court held that
defendant]. BellSouth’s notice of removal was timely be-
7
cause it was filed within thirty days after Pren- properly a party in federal district court, and
tice-Hall’s employees returned to the office its notice of removal was timely, so the certi-
from a holiday and thirty-five days after the fied orders of the district court are
city attempted service. The court considered AFFIRMED. This matter is REMANDED for
only December 24 and 29 as the possible dates further appropriate proceedings.
of service. The court noted the lack of con-
trolling precedent but nonetheless determined
that BellSouth was not served until Decem-
ber 29.
Although we do not need to decide whether
the district court was correct in saying that
service on a corporation must be directly on a
human actor, the result reached by the district
court, in declaring that there was no effective
service before December 29, is plainly correct.
On January 28, BellSouth filed a notice of re-
moval in state court and a notice of removal
along with an answer to the complaint in fed-
eral court. The filing of the answer constitutes
a voluntary appearance in the federal district
court.15 The result is that BellSouth was
15
Maiz v. Virani, 311 F.3d 334, 340 (5th Cir.
2002) (“A party makes a general appearance when-
ever it invokes the judgment of the court on any
question other than jurisdiction.”). It is not prob-
lematic in this situation that the state court never
technically had personal jurisdiction over
BellSouth. Title 28 U.S.C. § 1448 permits cured
service on a defendant after removal. See e.g.,
Freight Terminals, Inc. v. Ryder Sys., Inc., 461
F.2d 1046, 1052 (5th Cir. 1972) (noting that al-
though the district court looks to state law to see
that proper service was made before removal, the
plaintiff has an opportunity to cure service after
removal because of 28 U.S.C. § 1448).
A defendant’s removal to federal court does not
15
waive its right to object to service of process. (...continued)
Morris & Co. v. Skandinavia Ins. Co., 279 U.S. service of process. FED R. CIV. P. 12(h)(1).
405, 409 (1929). Filing an answer to the com- Where the defendant voluntarily appears before the
plaint without objecting to service of process does, federal court after having removed the case, it has
however, waive a defendant’s right to object to submitted to the jurisdiction of the court, obviating
(continued...) the need for renewed service.
8