Plaintiff Phillip Lee Walters filed a motion to remand a negligence lawsuit back to state court that was removed to federal court by defendants Samuel Patterson and Keen Transport based on diversity jurisdiction. The plaintiff argues that removal was improper because the defendants did not establish that the amount in controversy exceeds $75,000, as is required for diversity jurisdiction. The plaintiff notes that the complaint does not specify a damages amount and contends that the defendants rely only on unsupported assumptions to claim the threshold is met rather than providing evidence, as is required. The plaintiff requests that the case be remanded back to state court due to lack of federal jurisdiction.
Both Civil Procedure I and Lawyering Skills IV while attending Liberty University School of Law afforded me the invaluable privilege to prepare two tangible, simulated complaints.
Both Civil Procedure I and Lawyering Skills IV while attending Liberty University School of Law afforded me the invaluable privilege to prepare two tangible, simulated complaints.
Opposition to a California summary judgment motionLegalDocsPro
This sample opposition to a motion for summary judgment in California was created by a freelance paralegal who has worked in California and Federal litigation since 1995 and has used this sample for many years.
Motion to dismiss under rule 12(b)(5) for insufficient service of processLegalDocsPro
Motion to dismiss a complaint for insufficient service of process under Rule 12(b)(5) of the Federal Rules of Civil Procedure is the topic of this document. Rule 12(b)(5) allows a defendant to move for dismissal due to insufficient service of process in civil litigation in United States District Court.
Sample California motion to compel further responses to special interrogatoriesLegalDocsPro
This sample California motion to compel further responses to special interrogatories is made pursuant to Code of Civil Procedure Section 2030.300 and is used when a party has served special interrogatories but the responses received are evasive or incomplete, or the objections are without merit or are too general. The sample could easily be modified to apply to form interrogatories as well. The sample on which this preview is based is 30 pages and includes a memorandum of points and authorities with citations to case law and statutory authority, a separate statement as required by Rule of Court 3.1345, a sample declaration and a proof of service by mail.
Sample motion for summary judgment by plaintiff in United States District CourtLegalDocsPro
This sample motion for summary judgment by plaintiff in United States District Court is filed under the provisions of Rule 56 of the Federal Rules of Civil Procedure on the grounds that no genuine dispute exists as to any material fact and the moving party is entitled to judgment as a matter of law. The sample on which this preview is based is 16 pages and includes brief instructions, a table of contents and table of authorities as well as a memorandum of points and authorities with citations to case law and statutory authority, statement of uncontroverted facts and conclusions of law, sample declaration, proposed judgment granting summary judgment and proof of service by mail.
Motion for Sanctions filed against Wal-Mart for failure to preserve videotape in discrimination and harassment lawsuit in federal court in Atlanta, Georgia
Sample California motion to compel responses to requests for production of do...LegalDocsPro
This sample California motion to compel responses to requests for production of documents is made pursuant to Code of Civil Procedure Section 2031.300(b) and is used when a party has served requests for production of documents special interrogatories but has received NO responses or documents. The sample could easily be modified to apply to form interrogatories as well. The sample on which this preview is based is 9 pages and includes a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration and a proof of service by mail.
Sample notice of ruling for CaliforniaLegalDocsPro
This sample notice of ruling for California can be modified for use in any litigation case in California. The author is a freelance paralegal who has worked in California and Federal litigation since 1995 and has used this sample for many years.
Sample meet and confer declaration for motion for judgment on the pleadings i...LegalDocsPro
This sample meet and confer declaration for a motion for judgment on the pleadings in California is filed pursuant to the new meet and confer requirement found in Code of Civil Procedure section 439(a). This declaration can be used to demonstrate compliance with the new meet and confer requirement before filing a motion for judgment on the pleadings in California that just became effective on January 1, 2018. The sample is 5 pages and includes brief instructions, sample wording and a proof of service by mail. The author is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Motion to Dismiss Claims for Misappropriation of Trade Secrets and Tortious Interference under Florida law. Tampa, Florida. Hillsborough County Circuit Court - Complex Business Litigation Division.
Pollard PLLC
P. 954-332-2380
Sample motion to dismiss for improper venue under Rule 12(b)(3)LegalDocsPro
This sample motion to dismiss for improper venue under Rule 12(b)(3) in United States District Court contends that the complaint should be dismissed for improper venue as the Defendant is not a resident of, and does not conduct business in, the judicial district, and therefore venue is improper. The sample motion on which this preview is based is 9 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service. The author is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Empresa na área da Educação contrata Estatístico
Graduação completa em estatística ou Matemática
Experiência em técnicas de amostragem
Análise multivariada.
Planejamento, elaboração e execução de relatórios gerenciais
Necessário conhecimentos Avançado em (Word, Excel, Access),
Departamento em fase de implantação.
CV: rh.fernandam@yahoo.com.br
Mencionar no assunto: Estatística/2009
Opposition to a California summary judgment motionLegalDocsPro
This sample opposition to a motion for summary judgment in California was created by a freelance paralegal who has worked in California and Federal litigation since 1995 and has used this sample for many years.
Motion to dismiss under rule 12(b)(5) for insufficient service of processLegalDocsPro
Motion to dismiss a complaint for insufficient service of process under Rule 12(b)(5) of the Federal Rules of Civil Procedure is the topic of this document. Rule 12(b)(5) allows a defendant to move for dismissal due to insufficient service of process in civil litigation in United States District Court.
Sample California motion to compel further responses to special interrogatoriesLegalDocsPro
This sample California motion to compel further responses to special interrogatories is made pursuant to Code of Civil Procedure Section 2030.300 and is used when a party has served special interrogatories but the responses received are evasive or incomplete, or the objections are without merit or are too general. The sample could easily be modified to apply to form interrogatories as well. The sample on which this preview is based is 30 pages and includes a memorandum of points and authorities with citations to case law and statutory authority, a separate statement as required by Rule of Court 3.1345, a sample declaration and a proof of service by mail.
Sample motion for summary judgment by plaintiff in United States District CourtLegalDocsPro
This sample motion for summary judgment by plaintiff in United States District Court is filed under the provisions of Rule 56 of the Federal Rules of Civil Procedure on the grounds that no genuine dispute exists as to any material fact and the moving party is entitled to judgment as a matter of law. The sample on which this preview is based is 16 pages and includes brief instructions, a table of contents and table of authorities as well as a memorandum of points and authorities with citations to case law and statutory authority, statement of uncontroverted facts and conclusions of law, sample declaration, proposed judgment granting summary judgment and proof of service by mail.
Motion for Sanctions filed against Wal-Mart for failure to preserve videotape in discrimination and harassment lawsuit in federal court in Atlanta, Georgia
Sample California motion to compel responses to requests for production of do...LegalDocsPro
This sample California motion to compel responses to requests for production of documents is made pursuant to Code of Civil Procedure Section 2031.300(b) and is used when a party has served requests for production of documents special interrogatories but has received NO responses or documents. The sample could easily be modified to apply to form interrogatories as well. The sample on which this preview is based is 9 pages and includes a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration and a proof of service by mail.
Sample notice of ruling for CaliforniaLegalDocsPro
This sample notice of ruling for California can be modified for use in any litigation case in California. The author is a freelance paralegal who has worked in California and Federal litigation since 1995 and has used this sample for many years.
Sample meet and confer declaration for motion for judgment on the pleadings i...LegalDocsPro
This sample meet and confer declaration for a motion for judgment on the pleadings in California is filed pursuant to the new meet and confer requirement found in Code of Civil Procedure section 439(a). This declaration can be used to demonstrate compliance with the new meet and confer requirement before filing a motion for judgment on the pleadings in California that just became effective on January 1, 2018. The sample is 5 pages and includes brief instructions, sample wording and a proof of service by mail. The author is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Motion to Dismiss Claims for Misappropriation of Trade Secrets and Tortious Interference under Florida law. Tampa, Florida. Hillsborough County Circuit Court - Complex Business Litigation Division.
Pollard PLLC
P. 954-332-2380
Sample motion to dismiss for improper venue under Rule 12(b)(3)LegalDocsPro
This sample motion to dismiss for improper venue under Rule 12(b)(3) in United States District Court contends that the complaint should be dismissed for improper venue as the Defendant is not a resident of, and does not conduct business in, the judicial district, and therefore venue is improper. The sample motion on which this preview is based is 9 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service. The author is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Empresa na área da Educação contrata Estatístico
Graduação completa em estatística ou Matemática
Experiência em técnicas de amostragem
Análise multivariada.
Planejamento, elaboração e execução de relatórios gerenciais
Necessário conhecimentos Avançado em (Word, Excel, Access),
Departamento em fase de implantação.
CV: rh.fernandam@yahoo.com.br
Mencionar no assunto: Estatística/2009
RK Associates, Raanan Katz Were Alleged In Unlawful Ejectment In Miamirkcenters
Defendants do not dispute, that security guards threw Plaintiffs off the property and that RK Associates and MWI changed the locks on the bank branch's office doors. Furthermore, Plaintiffs allege conversion of their remaining personal property by RK Associates and MWI after they were escorted from the premises. Judging from the record, the Court finds that there is a possibility that Plaintiffs can establish a cause of action against the resident defendant. Triggs, 154 F.3d at 1287. At the very least, Plaintiffs have a possibility of stating a viable cause of action against the landlord RK Associates for conversion of their equipment and for unlawful ejectment. Defendants themselves note that joinder is deemed legitimate when such possibility exists.
San Diego Attorney Scott McMillan loses a federal lawsuit seeking a restraining order on the San Diego Sheriff's Department. As the court record demonstrates the basis for the motion was improper and the law did not support it.
Supporting documentation for the Motion to add 200 new plaintiffs to the Armando Montelongo Lawsuit. This outlines how attempts to Arbitrate the case failed due to Montelongo refusing to follow the American Arbitration Association Rules, thus they declined to arbitrate the case and asked he remove their name from clauses in the contract. In addition, new plaintiff's have approached the case with similar details of fraud. A synopsis of the entire suit is at http://www.jeannorton.com/armando-montelongo-rico-doubles/
Express working capital llc v Starving Students IncM P
Synopsis
Background: Buyer of corporation's future credit card receivables brought action against seller-corporation and its owner, alleging breach of contract, promissory estoppel, fraud, and fraudulent inducement. Defendants asserted usury defense and counterclaim. Parties cross-moved for summary judgment.
NCAA CONCUSSION MDL, ORDER AND PLAINTIFFS EXECUTIVE COMMITTEEmzamoralaw
The NCAA will also provide concussion education to athletes, coaches and trainers before each season. And medical personnel will be present at each “contact sport,” including football, lacrosse, wrestling, ice hockey, field hockey, soccer and basketball.
The $70 million figure could include as much as $15 million in attorney fees and up to $750,000 in out-of-pocket expenses. NCAA insurers are expected to pay at least part of the settlement, NCAA Chief Legal Officer Donald Remy said on the association’s website.
attorneys listed in the settlement as counsel for the plaintiff class are Seattle-based Steve W. Berman of Hagens, and Mark Zamora of The Orlando Law Firm P.C. in Decatur, Ga. AMONG OTHERS
1. IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PHILLIP LEE WALTERS, )
)
)
Plaintiffs, ) CASE NO. 5:09-CV-00
)
vs. )
)
SAMUEL PATTERS AND KEEN )
TRANSPORT, INC. )
Defendants. )
PLAINTIFF PHILLIP LEE WALTERS' MOTION TO REMAND
Plaintiff Phillip Lee Walters, pursuant to 28 U.S.C. §
1447(c), moves this Court to remand the above-styled matter
to the State Court of Bibb County, Georgia. The absence of
removal jurisdiction mandates the requested remand. As
specific grounds, Plaintiff states:
Complaint
1. This is a case sounding in negligence. On August 21,
2009 in the State Court of Bibb County, Georgia, Plaintiff
instituted this lawsuit by filing a Complaint. The named
Defendants are those listed in the caption, Samuel Patterson
and Keen Transport, Inc. Specifically, Plaintiff alleges
that his vehicle was struck by a truck driven by Defendant
Patterson.
2. 2. Contrary to Defendants' assertions in Paragraph 7 of
the Notice of Removal, Plaintiff has not alleged in any
paragraph of his Complaint that he seeks “sums in excess of
$75,000, exclusive of interest and costs.” (Defendants' Notice
of Removal, Paragraph 7).
Notice of Removal
3. Defendants filed their Notice of Removal with this
Court in a timely manner, doing so on September 29, 2009.
4. As the sole source of federal subject-matter
jurisdiction, Defendants referenced only diversity-of-
citizenship jurisdiction pursuant to 28 U.S.C. § 1322 (Notice of
Removal Paras. 4, 5, and 6), and a claimed amount in controversy
(Notice of Removal, Paras. 7 and 8).
General Legal Principles
5. Federal courts are courts of limited jurisdiction.
See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114
S. Ct. 1673, 128 L. Ed. 2d 391 (1994); Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
6. Removal statutes must be strictly construed because
Congressional intent in enacting removal legislation was to
2
3. restrict removal jurisdiction. Shamrock Oil & Gas Corp. v.
Streets, 313 U.S. 100, 108, 61 S. Ct. 868, 85 L. Ed. 2D 1214
(1921).
7. “A court must strictly construe the requirements of the
removal statute, as removal constitutes an infringement on state
sovereignty.” Newman v. Spectrum Stores, Inc., 109 F. Supp. 2d
1342, 1344 (M.D. Ala. 2000). “Failure to comply with the
requirements of the removal statute generally constitutes
adequate grounds for remand.” 109 F. Supp. 2d at 1345.
8. “Statutes that limit federal jurisdiction are always
strictly construed against the removing party, and there is no
shame in a plaintiff’s insistence on full and complete
compliance with them by a defendant who wants to flee to federal
court.” Kisor v. Collins, 338 F. Supp. 2d 1279, 1281 (N.D. Ala.
2004).
9. The removing party bears the burden of demonstrating
the existence of federal jurisdiction. Wilson v. Republic Iron
& Steel Co., 257 U.S. 92, 97, 42 S. Ct. 35, 660 L. Ed. 2d 144
(1921); Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972
(11th Cir. 2002).
Specific Jurisdictional-Threshold-Amount Principles
3
4. 10. A district court “shall have original jurisdiction of
all civil actions where the matter in controversy exceeds the
sum or value of $75,000, exclusive of interest and costs, and is
between ... citizens of different States.” 28 U.S.C. § 1332(a).
There can be no diversity-of-citizenship-based subject-matter
jurisdiction absent satisfaction of the $75,000 threshold amount.
11. In its removal pleading, Defendants made no mention of
the opinion, Lowery v. Alabama Power Co., 483 F.3d 1184 (11th
Cir. 2007), cert. denied, sum nom, Hanna Steel Corp. v. Lowery,
___ U.S. ___, 128 S. Ct. 2877 (2008), and its impact on the
issue of a removing party’s satisfying the jurisdictional-
threshold-amount requirement. Defendants have made no mention
of the numerous opinions that have applied Lowery in factual
scenarios similar to that in the present matter and granted
motions to remand due to a failure to satisfy the
jurisdictional-threshold-amount requirement.
12. In Beasley v. Fred’s Inc., Civil Action No. 08-0120-
WS-C, 2008 WL 899249 (S.D. Ala. Mar. 31, 2008), in an Alabama
state court, Beasley sued Fred’s after she fell while shopping
in a Fred’s store and injured her back and both knees. Beasley
sought compensatory damages in connection with a surgery on her
left knee and for her pain and suffering and punitive damages.
In her complaint, Beasley demanded no specified amount of
4
5. damages. While Beasley did not file a motion to remand,
District Judge Steele remanded the matter because he
independently found a failure to satisfy the jurisdictional-
threshold-amount requirement. District Judge Steele stated that
“[t]he amount in controversy [was] not apparent from the face of
the complaint, because there [was] no way to determine from the
complaint whether the plaintiff has been injured so badly as to
make an award of over $75,000 more likely than not.” 2008 WL
899249 at *1. He wrote:
Moreover, “[a] conclusory allegation in
the notice of removal that the
jurisdictional amount is satisfied, without
setting forth the underlying facts
supporting such an assertion, is
insufficient to meet the defendant’s
burden.” Williams [v. Best Buy Co.], 269
F.3d [1316,] 1319-20 [(11th Cir. 2001)].
“[U]nsupported assumptions” are likewise
“inadequate.” Leonard v. Enterprise Rent A
Car, 279 F.3d 967, 972 (11th Cir. 2002).
The standard for removal is preponderance of
the evidence and, when the removing
defendant relies only on representations
without presenting evidence, it cannot meet
its burden of supporting removal. Lowery v.
Alabama Power Co., 483 F.3d 1184, 1210-1211
(11th Cir. 2007).
2008 WL 899249 at *2.
13. In Williamson v. Home Depot USA, Inc., No. 07-61643-
CIV, 2008 WL 2262044 (S.D. Fla. 30, 2008), Williamson was
injured while shopping at a Home Depot store. Williamson
5
6. commenced a lawsuit in a Florida state court, Home Depot removed
the matter and Williamson filed a motion to remand. Home Depot
unsuccessfully argued that it was facially apparent from the
complaint that the amount in controversy exceeded $75,000
because Williamson asserted that he sustained serious injuries
to his dominant hand. The district court wrote:
To show that it is facially apparent that
the damages exceed the jurisdictional
minimum, it is insufficient to rely on the
severity of the injuries alleged. Beal v.
La Quinta Inns., Inc., No. 3:06-CV-966-J-33
TEM, 2007 WL 1577826, at *2 (M.D. Fla. May
31, 2007)(finding it insufficient to rely
upon on the severity of the damages claimed
to satisfy burden of proving jurisdiction by
a preponderance of the evidence). ...
2008 WL 2262044 at *2.
Argument
15. Defendants do not mention the Lowery opinion or any
recent germane opinions applying the principles announced in
Lowery.
16. Defendants wrongfully assume that the jurisdictional-
threshold-amount requirement is met because a plaintiff alleges
personal injuries. Since the issuance of the Lowery opinion,
throughout the Eleventh Circuit, assumptions are insufficient to
satisfy the burden imposed on a removing defendant to satisfy
the jurisdictional-threshold-amount requirement.
6
7. 17. Defendants truly ask this Court to speculate as to
some satisfaction of the jurisdiction-threshold-amount
requirement because the Plaintiff may ask a jury to award him
some measure of damages.
18. Defendants have chosen to ignore Lowery; this Court
may not. Defendants have made no effort to follow the
principles announced in Lowery and applied in post-Lowery
opinions.
WHEREFORE,Plaintiff moves this Court to enter an order
remanding this matter of the State Court of Bibb County,
Georgia.
DATED this _20th day of October, 2009.
s/ Mark Zamora
GA BAR 784239
MARK ZAMORA, ESQUIRE
POST OFFICE BOX 660216
ATLANTA, GA 30366
T: 404/451-7781
F: 404/506-9223
Email: mzamoralaw@yahoo.com
CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2009 I electronically
filed PLAINTIFF'S MOTION TO REMAND with the Clerk of Court using
the CM/ECF system which will automatically send email
notification to the following attorneys of record: GRANT SMITH,
ESQ. and KIMBERLY DEWITT, ESQ., Dennis, Corry, Porter and Smith,
7
8. LLP, 3535 Piedmont Road, NE, 14 Piedmont Center, Suite 900,
Atlanta, GA 30305.
I hereby certify that I have mailed by United States Postal
Service the document to the following non-CM/ECF participants:
None.
s/ Mark Zamora
GA BAR 784239
MARK ZAMORA, ESQUIRE
POST OFFICE BOX 660216
ATLANTA, GA 30366
T: 404/451-7781
F: 404/506-9223
Email: mzamoralaw@yahoo.com
8