City of Clarksdale v. Bellsouth Telecom

United States Court of Appeals
Fifth Circuit
F I L E D
October 5, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The City of Clarksdale, acting by and
through the Clarksdale Public Utilities Com-
mission, appeals the denial of a motion to
remand to state court for failure by defendant
BellSouth Telecommunications, Inc. (“Bell-
South”), to file its notice of removal timely.
After denying the city’s motion for reconsider-
ation, the district court certified the issue of
timeliness of removal for interlocutory appeal.
The timeliness of removal turns on when, if
at all, service was effected on BellSouth.1 We
1 The city, as appellant, frames the sole issue on
interlocutory appeal as follows:
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2
conclude that service of process was not
effected when the city’s process server left the
citation and other papers at the office of Bell-
South’s authorized agent for service, but on a
day when the authorized agent’s office was
closed. The result is that even if service was
effected on the date when the authorized
agent’s office reopened for business, Bell-
South’s removal was timely, and if service was
never effected, BellSouth voluntarily appeared
in federal court by answering after removal.
We therefore affirm the district court’s denial
of the city’s motion to remand to state court,
and we remand to the district court for further
proceedings.
I.
A.
In 1954, the city entered into a contractual
agreement with BellSouth’s predecessor in
interest. After years of dispute between the
two corporations over the obligations arising
from the agreement, the city sued in state
court on December 23, 2003, seeking declara-
tory and injunctive relief, damages, and attor-
ney’s fees.
BellSouth is incorporated in Georgia and
does business in Mississippi. Prentice-Hall
Corporation (“Prentice-Hall”) acts as Bell-
South’s Mississippi registered agent for ser-
vice of process.
On Wednesday December 24, 2003, the
city’s process server, Sally Green, sought to
serve process on BellSouth through Prentice-
Hall. She entered the multi-tenant building
where Prentice-Hall keeps an office. On the
front door of the building, a sign stated that
Prentice-Hall’s offices were closed for the
Christmas Holidays on Wednesday through
Friday, December 24-26, 2003, and the record
is undisputed that it was closed on December
24 and did not reopen until Monday De-
cember 29.
Inside the building, Green stated her pur-
pose to an unidentified man who pointed out
an office, the door to which was open, and in-
dicated the inbox where papers could be de-
posited for Prentice-Hall. Green placed the
summons and complaint in this inbox. Both
documents show the date of filing with the
court (December 23) but not the date Green
attempted service (December 24). Five days
later, Green filed the return of service with the
state Chancery Court, stating that service of
process had been accomplished on December
24 by personal service on Prentice-Hall.
On January 28, 2004, BellSouth filed an an-
swer and notice of removal.2 The precise date
1(...continued)
Whether, under Rule 4 of the Mississippi Rules
of Civil Procedure, a summons and complaint
is deemed to be served on the date upon which
the summons and complaint are delivered to the
office of a corporate registered agent for pro-
cess and deposited in a box for that purpose in
accordance with the custom and practice of the
registered agent for process or is the date of ser-
vice deemed to be a subsequent date upon
which an employee of the corporate registered
agent for process physically picks up the sum-
mons and complaint deposited in the box and
processes it for its principal?
The issue, then, as framed by the appellant, is one
of the timing, rather than the sufficiency, of service
of process.
2 BellSouth’s notice of removal bases federal
jurisdiction based on diversity of citizenship. 28
U.S.C. § 1332(a) (1993 & Supp. 2005). The
amount in controversy exceeds the statutory mini-
mum of $75,000, because the damages alone would
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3
on which service was legally accomplished is
relevant, because if it is December 24, then
BellSouth’s attempted removal on January 28
was untimely as outside the thirty-day limit.
B.
BellSouth claims to have filed the notice of
removal within the thirty-day window for re-
moval, see 28 U.S.C. § 1446(b) (1994), be-
cause it alleges that service of process oc-
curred on December 29. Supporting this alle-
gation, the service documents BellSouth re-
ceived from Prentice-Hall are stamped with
that date. Additionally, BellSouth reasons that
Prentice-Hall could not have received service
when it was closed for the holiday; therefore,
after the holiday started, the first possible day
for Prentice-Hall to receive service was De-
cember 29, when employees returned to the
office.
The district court made no findings of fact
regarding who accepted service, and the re-
cord shows confusion on this matter. The em-
ployee designated to receive service for Bell-
South testified by affidavit that his inbox was
empty on both December 24 and December
29. Neither party offers evidence establishing
in whose inbox Green placed the service doc-
uments or explaining how service was received
without the appointed employees’ ever laying
hands on it. Nonetheless, the district court
reasoned that Prentice-Hall received service of
process because employees were present in the
office on December 29.
Some evidence was submitted to the district
court that Green had acted in accordance with
“the custom and practice of Prentice-Hall to
accept service of process of papers placed in a
basket located in Prentice-Hall’s office for that
purpose.” Prentice-Hall denies the existence
of such custom and practice. The district
court disallowed further discovery on the
issue, finding it irrelevant to the issue of on
what date the corporation accepted service. In
denying the city’s motion to remand, the court
held that because a corporation can act only
through its human employees, service of pro-
cess could have occurred only on December
29, when employees of Prentice-Hall returned
to the office. Therefore, BellSouth argues that
its notice of removal was timely.3
2(...continued)
exceed $90,000. BellSouth is incorporated in
Georgia and has its principal place of business in
Georgia. The City of Clarksdale and the Clarks-
dale Public Utilities Commission are citizens of
Mississippi for diversity purposes. Moor v.
County of Alameda, 411 U.S. 693, 717 (1973)
(“[It is] recognized that a political subdivision of a
State, unless it is simply ‘the arm or alter ego of
the State’ is a citizen of the State for diversity pur-
poses.”); PYCA Indus., Inc. v. Harrison County
Waste Water Mgmt. Dist., 81 F.3d 1412, 1416
(5th Cir. 1996) (citing Tradigrain, Inc. v. Miss.
State Port Auth., 701 F.2d 1131, 1132 (5th Cir.
1983)) (recognizing that state agencies, which are
independent of the state, are citizens of the state).
3 We have jurisdiction over this appeal of an in-
terlocutory order under 28 U.S.C. § 1292(b)
(1993), which reads in pertinent part:
When a district judge, in making in a civil
action an order not otherwise appealable . . .
shall be of the opinion that such order involves
a controlling question of law as to which there
is substantial ground for difference of opinion
and that an immediate appeal from the order
may materially advance the ultimate termin-
ation of the litigation, he shall so state in writ-
ing in such order. The Court of Appeals . . .
may thereupon, in its discretion, permit an ap-
peal to be taken from such an order, if applica-
tion is made to it within ten days . . . .
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II.
A.
1.
We review de novo the denial of a motion
to remand to state court.4 Title 28 U.S.C.
§ 1446 governs the procedure for removal
from state to federal court and requires the de-
fendant in a civil action to file a notice of re-
moval within thirty days “after the receipt by
the defendant, through service or otherwise, of
a copy of the initial pleading setting forth the
claim for relief upon which such action or pro-
ceeding is based . . . .”5 28 U.S.C. § 1446(b).
The Supreme Court clarified this language in
Murphy Bros., Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 347-48 (1999), holding
that a defendant’s thirty-day removal period
commences on formal service of process, not
merely on receipt of actual notice of the com-
plaint through informal channels.
Although federal law requires the defendant
to file a removal motion within thirty days of
service, the term “service of process” is de-
fined by state law.6 So, to determine whether
the city complied with § 1446(b), we must
look to see what constitutes service of process
on a foreign corporation under Mississippi
law.
2.
Mississippi law prescribes how a plaintiff is
to serve process on a defendant corporation. 3(...continued)
The district court so stated, and the city timely filed
a motion for leave to take an interlocutory appeal
on the timeliness issue.
A panel of this court granted that motion.
Specifically, the orders that this court has certified
for interlocutory appeal are the order entered Sep-
tember 15, 2004, denying the city’s motion to re-
mand, and the order entered October 6, 2004, de-
nying the city’s motion for reconsideration. As this
court stated in its order of November 22, 2004,
granting the city’s motion for leave to appeal, both
of the district court’s orders now under review
center on the question whether BellSouth’s removal
was timely.
4 City of New Orleans v. Mun. Admin. Servs.,
Inc., 376 F.3d 501, 503-04 (5th Cir. 2004) (citing
Miller v. Diamond Shamrock Co., 275 F.3d 414,
417 (5th Cir. 2001)).
5 Additionally, § 1446 permits service of the
summons, without the complaint, when the com-
plaint has been filed with the court. Rule 4(a)(2) of
the Mississippi Rules of Civil Procedure, however,
requires service of both the summons and com-
plaint, rendering this second provision inapplicable
here.
6 See Murphy Bros., 526 U.S. at 352-53 (ex-
amining the procedures in various states for in-
itiating suit and the effect the differences among
states will have on federal removal statute). For a
federal district court to have jurisdiction over a
case removed from state court, the state court must
first have jurisdiction. Lambert Run Coal Co. v.
Baltimore & Ohio R.R., 258 U.S. 377, 382 (1922)
(“If the state court lacks jurisdiction of the subject-
matter or of the parties, the federal court acquires
none . . . .”). For this reason, we look to state law
to verify that service of process effectively brought
the defendant within the state court’s jurisdiction.
See Woodham v. Northwestern Steel & Wire Co.,
390 F.2d 27 (5th Cir. 1968) (“In determining the
validity vel non of service of process on a foreign
corporation, the court must, in each instance,
consider the particular facts of the case sub
judice and apply to these facts the law of the
forum state.”); USATorres v. Marina
Mercante Nicaraguenses, 768 F.2d 1285,
1286 n.1 (11th Cir. 1985) (“A federal court
may consider the sufficiency of process after
removal and does so by looking to the state
law governing process.”).

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MISS. CODE ANN. § 13-3-49 (2002).7 “If the
defendant in any suit or legal proceeding be a
corporation, process may be served on the
president or other head of the corporation, up-
on the cashier, secretary, treasurer, clerk, or
agent of the corporation, or upon any one of
the directors of such corporation.” Id. (em-
phasis added). The state statute defines “agent
of the corporation” for service of process as
the registered agent of the foreign corpora-
tion.8 Foreign corporations authorized to
transact business in Mississippi are required to
maintain, within the state, a registered office
and a registered agent.9 MISS. CODE ANN.
§ 79-4-15.07 (2001). A registered agent is de-
fined as an individual, a not-for-profit, or a
corporation. Id.10
These statutes authorize service on any
agent of a corporation, and an agent includes
the registered agent, which itself may be a cor-
poration. Therefore, the statute authorizes
service on a registered-agent corporation it-
self—not a human employee thereof. It ap-
pears that the statutes have drawn a distinction
between corporations, in general, and regis-
tered-agent corporations.
Title 13 of the Mississippi Code also stipu-
lates that the rules of process contained therein
are subordinate to the Mississippi Rules of
7 Title 13 of the Mississippi Code contains no
definition of “corporation.” See MISS. CODE ANN.
Title 13 (2002 & Supp. 2004). Title 79, by con-
trast, defines “corporation” seven times in various
contexts, drawing distinctions between forms of
corporations such as “domestic” and “foreign” cor-
porations. See, e.g., MISS. CODE ANN. § 79-4-
1.40 (Supp. 2004) (defining “corporation” and
“domestic corporation” as “a corporation for prof-
it, which is not a foreign corporation . . .”). Be-
cause Title 13 does not contain this sort of dif-
ferentiation, we understand the word “corporation”
in Title 13 to include all forms of corporations but
the same word in Title 79 to refer only to the
specifically delineated form. Therefore, Title 13’s
prescription on service where the defendant is a
corporation applies equally to domestic, foreign,
and registered-agent corporations.
8 The same is true for domestic corporations:
“A corporation’s registered agent is the corpora-
tion’s agent for service of process . . . required or
permitted by law to be served on the corporation.”
MISS. CODE ANN. § 79-4-5.04(a) (2001)
9 The requirement also applies to domestic cor-
porations. See MISS. CODE ANN. § 79-4-
5.01(2001).
10 BellSouth asserts that the purpose of a regis-
tered agent is to ensure that foreign corporations
obtain actual notice of cases pending against them
in the state. This is one purpose of the statutes.
See First Jackson Secs. Corp. v. B.F. Goodrich
Co., 176 So. 2d 272, 275-76 (Miss. 1965) (reading
the statutes requiring a domestic corporation to ap-
point a registered agent as seeking to ensure the
corporation an opportunity to respond to pending
litigation).
In the context of foreign corporations, these
statutes, which are common throughout the United
States, are designed to ensure that citizens can col-
lect debts from, and enforce contracts with, the
foreign corporation. Stavang v. Am. Potash &
Chem. Corp., 227 F. Supp. 786, 787 (S.D. Miss.
1964) (citing 18 FLETCHER ON CORPORATIONS
343, 344); 18 FLETCHER CYCLOPEDIA OF PRIVATE
CORPORATIONS § 8697 (2004). “The manifest in-
justice which would ensue if a foreign corporation,
permitted by a state to do business therein, and to
bring suits in its courts, could not be sued in those
courts, has induced the states to provide by statue
that a foreign corporation doing business in the
state shall appoint an agent residing therein, upon
whom process may be served in actions arising out
of such business or upon contracts made in the
state.” Id.

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Civil Procedure. MISS. CODE ANN. § 13-3-1
(2002). Though several rules address service
of various types, service of process is entirely
controlled by rule 4.11
Rule 4(d) is entitled “Summons and Com-
plaint: Person to be Served.” The rule permits
service on a foreign or domestic corporation
by “delivering a copy of the summons and of
the complaint to an officer, a managing or gen-
eral agent, or to any other agent authorized . .
. by law to receive service of process.” MISS.
R. CIV. P. 4(d)(4). As stated above, the Mis-
sissippi Code defines the agents authorized to
receive process as including registered
agents.12
3.
BellSouth contends that under rule 4, ser-
vice on Prentice-Hall, as registered agent,
must be made by handing the process papers
directly to a person at Prentice-Hall’s offices
who is authorized to accept service. As we
will explain, we find it unnecessary to decide
that specific question. We determine, instead,
that under the facts of this case, service was
effected on BellSouth through Prentice-Hall
no earlier than December 29, when Prentice-
Hall’s offices reopened for business after the
holiday.
The opinion in Anderson Mercantile Co. v.
Cudahy Packing Co., 90 So. 11 (Miss. 1921),
is helpful. There, an individual received ser-
vice for the corporation (apparently, though
the case does not provide detailed facts). The
return of service indicated personal delivery on
the corporation, without identifying who re-
ceived service. The court determined that
service was insufficient, so there was no per-
sonal jurisdiction over the defendant corpora-
tion.13
The Mississippi Supreme Court reiterated
this understanding in First Jackson,14 in which
the issue was which employees may accept
service of process, not whether a human being
need accept service. There, a secretary re-
ceived service for a domestic corporation but
failed to deliver the papers to the appropriate
persons. The plaintiff argued that service on
any employee of the corporation is service on
an agent of the corporation and is therefore
sufficient. First Jackson, 176 So. 2d at
274-75.
11 See comment to MISS. R. CIV. P. 5, MISSIS-
SIPPI RULES OF COURT 12 (West 2004).
12 MISS. CODE ANN. §§ 79-4-5.04(a), 79-4-
15.10(a).
13 Anderson Mercantile examines Section 3932,
Code of 1906 (Section 2939 Hemingway’s Code),
which “provides for the manner and effect of the
service of process on corporations.” Anderson
Mercantile, 90 So. at 12. This is the antecedent
statute to Mississippi Code Annotated § 13-3-49
“Service when a defendant is a corporation.”
Although Anderson Mercantile does not specify
whether the defendant corporation is a domestic or
foreign corporation, it is relevant to the current
analysis, because we understand the statute being
discussed to apply equally to all types of corpora-
tions. See supra note 5.
14 In Anderson Mercantile and First Jackson,
the wording of the statute prescribing service on a
corporation is exactly the same: “If the defendant
in any suit or legal proceeding be a corporation,
process may be served on the president or other
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-
tion.” Anderson Mercantile, 90 So. at 12; First
Jackson, 176 So. 2d at 275. The registered agent
provisions, examined in First Jackson, did not exist
in 1921 when Anderson Mercantile was decided.

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The court disagreed, finding that not all em-
ployees are agents of the corporation. The
court arrived at this conclusion by examining
dictionary definitions of “agent” instead of any
statutory definitions. Id. at 275-76, 278. The
court declared that “where the defendant is a
corporation the process must be delivered or
served on an official or proper person on
behalf thereof.” Id. at 276.
In Public Employees’ Retirement System v.
Dillon, 538 So. 2d 327 (Miss. 1989), the court
cited the provisions of Mississippi Rule of Civ-
il Procedure 4(d)(4) as allowing service on a
corporation by, inter alia, delivery on an
appointed agent. The court pointed out that
rule 4(d)(5) permits service on a corporation
by first class mail. This undercuts BellSouth’s
contention that service on a corporate regis-
tered agent must always be directly on a natu-
ral person authorized by that corporation.
On the other hand, we are persuaded by a
case on which BellSouth relies, Tech Hills II v.
Phoenix Home Life Ins. Co., 5 F.3d 963 (6th
Cir. 1993). Although that decision is not bind-
ing on this court or on the Mississippi courts,
the facts are similar. There, delivery of the
summons was made to a security guard (who
was not authorized to accept service of pro-
cess) on a Saturday when the offices were
closed. In determining whether removal was
proper, the court reasoned as follows:
We hold that delivery at defendant’s place
of business on a Saturday, when the offices
are closed, to a security guard, who is not
authorized to receive service on behalf of
the corporation, is not receipt under the re-
moval statute. The removal period was
commenced on Monday when the com-
plaint was delivered to and thus, received
by an authorized representative of [the
defendant].
Id. at 968.
The city argues, in response, that Tech
Hills is inapposite, because here the agent au-
thorized to receive service is itself a corpora-
tion that, unlike a natural person, does “not
hav[e] a physical corpus with the ability to
reach out and hold a tendered document.” In-
stead, the city reasons that Prentice-Hall has
the “custom and practice, when no one was
present in the Prentice[-]Hall office and the in-
ner office of Prentice[-]Hall was physically
open, of accepting the service of legal docu-
ments served in a designated basket.”
We disagree. As BellSouth replies, there
was no one present on December 24 at Pren-
tice-Hall’s office who was vested with appar-
ent authority to accept papers. The result is
that in the intervening five days, there was no
one to notify BellSouth that it had been sued,
so BellSouth was deprived of five of the thirty
days the statute allows it to effect removal.
Moreover, the city does not suggest that it re-
lied on any such “custom and practice.”
Accordingly, it does not matter, in this
case, whether the law requires that service on
a registered-agent corporation be made by
handing the papers directly to a person autho-
rized to receive them, or instead, whether it is
sufficient for them to be placed in a designated
place (such as a basket) for processing in the
normal course of business. The point here is
that leaving the papers in a basket on a day
when no one would or could process them
cannot, under the rationale of Tech Hills and
the other cases cited, constitute service until
such time as the office reopens and the papers
can be processed and sent to the principal.
B.
As we have said, the district court held that
BellSouth’s notice of removal was timely be-

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cause it was filed within thirty days after Pren-
tice-Hall’s employees returned to the office
from a holiday and thirty-five days after the
city attempted service. The court considered
only December 24 and 29 as the possible dates
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
properly a party in federal district court, and
its notice of removal was timely, so the certi-
fied orders of the district court are
AFFIRMED. This matter is REMANDED for
further appropriate proceedings.
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
waive its right to object to service of process.
Morris & Co. v. Skandinavia Ins. Co., 279 U.S.
405, 409 (1929). Filing an answer to the com-
plaint without objecting to service of process does,
however, waive a defendant’s right to object to
(continued...)
15(...continued)
service of process. FED R. CIV. P. 12(h)(1).
Where the defendant voluntarily appears before the
federal court after having removed the case, it has
submitted to the jurisdiction of the court, obviating
the need for renewed service.

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