Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:05-cv-00284-GI\/IS Document 9-2 Filed 06/07/2005 Page1 0f 3
EXHIBIT 1

Case 1:05-cv-00284-GI\/IS Document 9-2 Filed 06/07/2005 Page 2 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COURT OF DELAWARE
SARA S. ECHEVARRIA,
Plaintiff, Case N0. 05-284 (GMS)
V. Removed from Superior Court,
U-HAUL INTERNATIONAL, INC., New Castle County, Delaware
ROGER MAYFIELD, and C.A. No.: 05C—03-188 WCC
NATIONWIDE GENERAL INSURANCE
COMPANY
Defendants.
AFFIDAVIT OF STEVEN L. CAPONI
STATE OF DELAWARE )
NEW CASTLE COUNTY iss
STEVEN L. CAPONI, being first duly swom, on oath, deposes and states as follows:
l. I am an attorney at Blank Rome LLP, counsel of record for defendant U-Haul
International, Inc., in this matter and make this affidavit upon personal knowledge being duly
authorized to do so.
2. In early May 2005, I was retained to serve as Delaware counsel for U-Haul
International, Inc. ("U—Haul") in connection with the above captioned matter. On May l0, 2005,
I was charged with finalizing and filing with the Court, a Notice of Removal removing this
matter from the Delaware Superior Court to Federal District Court for the District of Delaware.
3. In connection with the preparation of the Notice of Removal, I reviewed the
relevant portions of the United States Code Annotated, the Federal Rules of Civil Procedure and
the corresponding Local District Court Civil Rules addressing the removal process. A review of
these sources suggested that, for the proceeding to be properly removed from the Delaware State
Court, all defendants were required to consent to the Notice of Removal. As of May l0, 2005,
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Case 1:05-cv-00284-Gl\/IS Document 9-2 Filed 06/07/2005 Page 3 of 3
U—Haul and Nationwide General Insurance Company ("Nationwide") were the only defendants
that had been properly served with the complaint.
4. In connection with the Notice of Removal, I was provided with the May 4, 2005
letter ]fl`OI”H Sonja Blackhawk, stating that Nationwide was joining in U-Hauls request to remove
this action from the Delaware state court. Due to the ambiguity in the applicable codes, statute
and Third Circuit case law, it was unclear whether: (i) Nationwide was required to submit an
affidavit supporting the Notice of Removal; (ii) the May 4, 2005 letter should be attached as an
exhibit to the Notice of Removal; or (iii) if it was sufficient to state in the Notice of Removal that
Nationwide had consented to the removal of the action from the Delaware state court.
5. In an effort to clarify the manner in which Nationwide’s consent to the Notice of
Removal should be brought to the attention of this Court, my office contacted the Clerk of the
Court for the Delaware District Court. After discussing the three options identified in the
preceding paragraph, the Clerk of the Court indicated that it was unnecessary to submit the May
4, 2005 letter as an exhibit and that it would be sufficient to state in the Notice of Removal that
Nationwide’s consent had been obtained. Following these instructions, paragraph 8 was inserted
into the Notice of Removal and the May 4, 2005 letter from Nationwide was not attached as an
exhibit. Had the Clerk of the Court been unavailable or indicated that an affirmative statement in
the Notice of Removal was insufficient to convey Natiopm;ide’s consent, the May 4, 2005 letter
would have been attached as an exhibit to the Notice of r. “
Subscribed and sworn to before me if
this Q_ day of Qi; ri f , 2005
.4Me%
otary Public, State of | |__ (;AMp
My Commission : __ NOTARY F’UBLlC
i i I My Commission
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