Free Declaration in Support - District Court of California - California

Case 3:08-cv-01463-PJH

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DIEPENBROCK & COTTER, LLP JOHN P. COTTER, State Bar No. 158783 ANTHONY R. ROSSMILLER, State Bar No. 215652 1545 River Park Drive, Suite 201 Sacramento, California 95815 Telephone: (916) 565-6222 Telecopier: (916) 565-6220 Attorneys for Defendants AMTECK OF KENTUCKY, INC. and THE HASKELL COMPANY

UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
ATTORNEY DECLARATION RE MOTION FOR FEES AND COSTS

REYNALDO SALINAS, et al., Plaintiffs, vs. AMTECK OF TEXAS, et al., Defendants.

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CASE NO. C 08-01463 PJH

Date: July 23, 2008 Time: 9:00 a.m. Courtroom: 3

ATTORNEY DECLARATION SUPPORTING DEFENDANTS AMTECK OF KENTUCKY, INC. and THE HASKELL COMPANY'S MOTION FOR ASSESSMENT OF COSTS AND FEES AGAINST PLAINTIFFS IN THE AMOUNT OF $77,847.66 AND FOR STAY OR DISMISSAL OF PROCEEDINGS PENDING PAYMENT

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I, JOHN P. COTTER, declare: 1. I am an attorney at law licensed to practice in the State of California and am

partner with Diepenbrock & Cotter, LLP, counsel of record for defendants Amteck of Kentucky, Inc. and the Haskell Company (hereinafter, "defendants") in the abovereferenced matter. I have personal knowledge of the matters set forth in this declaration unless otherwise stated and could competently testify thereto if called as a witness. 2. Attached to the memorandum accompanying this motion as Exhibit "1" is a

true and correct copy of the complaint and order re pro hac vice status filed in the original state action entitled Reynaldo Salinas, et al. vs. Amteck, Superior Court, State of California, Napa County, Case No. 26-35179. 3. Attached to the memorandum accompanying this motion as Exhibit "2" is a

true and correct copy (except as qualified in the next sentence) of a motion and supporting exhibits requesting the imposition of discovery sanctions, including the appointment of a discovery referee and protective order, that my office filed in the original state action, Reynaldo Salinas, et al. vs. Amteck, Superior Court, State of California, Napa County, Case No. 26-35179. I have omitted the word concordances to the deposition exhibits to this document in an effort to conserve paper. I am informed and believe that plaintiffs never filed an opposition to this motion. The motion attached as Exhibit "2" was not ruled upon by the Napa County Superior Court because plaintiffs' counsel dismissed the action without prejudice shortly before the hearing. 4. Attached to the memorandum accompanying this motion as Exhibit "3" is a

true and correct copy of the joinder and declaration served by William Buranich in the Reynaldo Salinas, et al. vs. Amteck, Superior Court, State of California, Napa County, Case No. 26-35179. 5. Attached to the memorandum accompanying this motion as Exhibit "4" is a

truce and correct copy of plaintiffs counsel's October 29, 2007 letter received by my office.
ATTORNEY DECLARATION RE MOTION FOR FEES AND COSTS

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The letter enclosed a dismissal of plaintiffs' complaint without prejudice in Reynaldo Salinas, et al. vs. Amteck, Superior Court, State of California, Napa County, Case No. 2635179. 6. Attached to the memorandum accompanying this motion as Exhibit "5" is a

true and correct copy of a November 1, 2007 letter sent by my office to plaintiffs' counsel in reply to Mr. Ball's dismissal of the Napa County Superior Court action. 7. Attached to the memorandum accompanying this motion as Exhibit "6" is a

true and correct copy of defendants' memorandum of costs for $7,496.26 filed in Reynaldo Salinas, et al. vs. Amteck, Superior Court, State of California, Napa County, Case No. 2635179. Plaintiffs' filed an untimely motion to tax costs which was not considered by the court. 8. Attached to the memorandum accompanying this motion as Exhibit "7" is a

true and correct copy the court's judgment my office received which enters judgment on defendants' cost bill in the amount of $7,496.26. To date, neither plaintiffs or plaintiffs' counsel has paid the judgment. 9. Attached to the memorandum accompanying this motion as Exhibit "8" is a

true and correct copy of the plaintiffs' complaint in this action (as downloaded from PACER) which was originally filed in Texas state court. The document indicates the complaint was filed November 14, 2007. 10. Defendants removed this action from Texas state court on the basis of

diversity jurisdiction to the United States District Court, Southern District of Texas, McAllen Division. To accomplish removal, defendants demonstrated to the court that Amteck of Texas was not a proper party. After removal, this matter was transferred to this court on defendants' motion to transfer. The court is requested to take judicial notice of these facts which are supported by the files and records of this action in the United States District Court, Southern District of Texas, McAllen Division, Case No. 7:08-cv-00003.
ATTORNEY DECLARATION RE MOTION FOR FEES AND COSTS

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The files and records of this matter while venued in the Southern District of Texas can be viewed on the PACER system. 11. Attached to the memorandum accompanying this motion as Exhibit "9" is a

true and correct copy of Amteck of Kentucky's removal notice. 12. Attached to the memorandum accompanying this motion as Exhibit "10" is a

true and correct copy of Amteck of Kentucky's motion to transfer. 13. Attached to the memorandum accompanying this motion as Exhibit "11" is a

true and correct copy of Haskell Company's removal notice. 14. Attached to the memorandum accompanying this motion as Exhibit "12" is a

true and correct copy of Haskell Company's motion to transfer. 15. Attached to the memorandum accompanying this motion as Exhibit "13" is a

true and correct copy of Amteck of Texas' removal notice and assertion that it had been fraudulently joined to this action. 16. Attached to the memorandum accompanying this motion as Exhibit "14" is a

true and correct copy of Amteck of Texas motion to dismiss. 17. Attached to the memorandum accompanying this motion as Exhibit "15" is a

true and correct copy of Plaintiffs' Notice of Dismissal of Amteck of Texas without Prejudice. 18. The attachments and exhibits of the original filed documents attached as

Exhibits "9" through "15" have not been attached or included in an effort to reduce paper use. Upon request, defendants will provide these documents. The documents can be viewed on the PACER system, United States District Court, Southern District of Texas, McAllen Division, Case No. 7:08-cv-00003. 19. Attached to the memorandum accompanying this motion as Exhibit "16" is a

true and correct copy of the order transferring this matter to the Northern District of California.
ATTORNEY DECLARATION RE MOTION FOR FEES AND COSTS

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20.

The complaints contained in Exhibits "1" and "8" demonstrate that California

High Reach & Equipment Rental, Inc. was a defendant in the Napa County Superior Court action and that California High Reach & Equipment Rental, Inc. is not a defendant in this action. In a telephone call on June 11, 2008, attorneys for plaintiffs indicated (to me and others) that plaintiffs are considering naming California High Reach & Equipment Rental, Inc. in this action. Additionally, an attorney in my office has been informed by other counsel that plaintiffs' counsel has advised them that brining California High Reach & Equipment Rental, Inc. back into the case is intended to "destroy" diversity, thus, allowing the matter to return to Napa County. Online records for the California Secretary of State as of June 12, 2008 indicate California High Reach Equipment Rental, Inc. is California corporation. 21. Defendants incurred $49,623.50 in attorneys fees and costs defending the

prior Napa County Superior Court action. The figure includes $35,373.00 in attorney's fees, $6,754.24 in costs and the unpaid judgment of $7,496.26. 22. Defendants incurred $28,224.16 in attorneys fees and costs removing and

transferring this case to the Northern District. This figure includes $27,363.17 in attorney fees and $860.99 in costs. Attorneys fees incurred in Texas were substantial as Texas counsel inherited a very large file and was required to contact numerous witnesses on short notice. I declare under penalty of perjury that the foregoing is true and correct except as to matters stated on information and belief and as to those matters, I believe them to be true. Executed on June 12, 2008 at Sacramento, California. /s/ John P. Cotter

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ATTORNEY DECLARATION RE MOTION FOR FEES AND COSTS

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Counsel for U.S. Trades (Served through ECF system)

CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and forgoing document was sent via ELECTRONIC SERVICE (through ECF website) or UNITED PARCEL SERVICE to the counsel listed below on June 12, 2008: Wesley Todd Ball Michael A. Hawash Farrar & Ball LLP 1010 Lamar, Suite 1600 Houston, TX 77002 T: (713) 221-8300 F: (713) 221-8301 [email protected] Counsel for Plaintiffs (By UPS only - not ECF registered for this case - copy of General Order 45 included) Timothy D. McMahon Corsiglia McMahon & Allard LLP 96 North Third Street, Suite 620 San Jose Ca. 95112 T: (408) 298-7200 F: [email protected] Counsel for Plaintiffs (Courtesy copy by UPS only - not ECF registered for this case - copy of General Order 45 included) Ronald D. Digesti, Esq. Callahan, Mccune & Willis, APLC 500 Sansome Street. Suite 410 San Francisco, CA 94111 T: 415-593-5700 F: 415-593-6984 [email protected]

ATTORNEY DECLARATION RE MOTION FOR FEES AND COSTS

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Frank Edward Schmaneck Dryden Margolis Schimaneck & Wertz 505 Sansome Street, Sixth Floor San Francisco, CA 94111 T: (415) 362-6715 F: (415) 362-0638 [email protected] Counsel for Snorkel International, Inc. (Served through ECF system) I declare under penalty of perjury that the forgoing is true and correct. /s/ John P. Cotter _______________________________ JOHN P. COTTER

ATTORNEY DECLARATION RE MOTION FOR FEES AND COSTS

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