Free Motion to Remand - District Court of California - California

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Neil Gieleghem CSBN 107389 Gieleghem Law Office 1875 Century Park East, Suite 700 Los Angeles, CA 90067 Telephone: (310) 284-3252 Telecopier: (310) 284-3253 [email protected] Attorneys for Plaintiff Nicholas H. Parker

UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 TO THIS HONORABLE COURT, AND TO ALL PARTIES AND COUNSEL OF 21 RECORD: 22 NOTICE IS HEREBY GIVEN that, on Wednesday, June 4, 2008, at 9:00 a.m., or as 23 soon thereafter as counsel may be heard by the Court, Honorable Phyllis J. Hamilton presiding, 24 25 Francisco, CA 94102 - 3483, Plaintiff Nicholas Parker will and hereby does move for an Order: 26 (1) Remanding the above-entitled action to the Superior Court of the State of California, 27 County of San Francisco, from whence said action was removed; and (2) awarding Plaintiff his 28 just costs and actual expenses in the amount of $9651.29 (or such additional amount as may be
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NICHOLAS H. PARKER, an individual,

) ) Plaintiff, ) ) vs. ) ) SCOTT MICHAEL MOORE, an individual; ) MOORE INTERNATIONAL LAW OFFICES, ) A PROFESSIONAL CORPORATION, a ) California corporation; MOORE ) INTERNATIONAL LAW OFFICES, A ) PROFESSIONAL CORPORATION, a business ) entity, form unknown; DOES 1 through 20, ) inclusive, ) ) Defendants. ) )

CASE NO. 3:08-CV-01896-PJH Hon. Phyllis J. Hamilton NOTICE OF MOTION AND MOTION TO REMAND AND REQUEST FOR JUST COSTS AND ACTUAL EXPENSES (OF $9651.29, OR ADDITIONAL AMOUNT TO BE DETERMINED); MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF NEIL GIELEGHEM Date: Time: Courtroom: Wednesday, June 4, 2008 9:00 a.m. Courtroom 3, 17th Floor

in Courtroom 3 of the above-entitled Court, located at 450 Golden Gate Avenue, 17th Floor, San

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determined) incurred by reason of Defendants' improper removal. This Motion is brought pursuant to 28 U.S.C. § 1447(c) on the grounds that this Court lacks subject matter jurisdiction over this state law legal malpractice and unfair business practices case. The sole basis for Defendants' removal is diversity jurisdiction. However, one of the Defendants ­ Moore International Law Offices, A Professional Corporation ­ is a California corporation and a citizen of California. Under well-established law, the presence of this California Defendant precludes complete diversity between Plaintiff and Defendants as required for removal under 28 U.S.C. § 1332(a). In addition ro remand, Plaintiff is entitled, under 28 U.S.C. § 1447(c), to recover $9651.29 (or an additional amount to be determined) as his just costs and actual expenses incurred as a result of Defendants' improper removal of this case. This Motion is based on this Notice of Motion and Motion; the attached Memorandum of Points and Authorities; the attached Declaration of Neil Gieleghem; this Court's files and records; and on such further papers and argument as may be presented to the Court prior to and/or at any hearing of this matter.

Dated: April 24, 2008

GIELEGHEM LAW OFFICE

s/ Neil Gieleghem Neil Gieleghem Attorneys for Plaintiff Nicholas H. Parker

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Defendants removed this action, which alleges California state law causes of action for unfair business practices and legal malpractice, based solely on alleged diversity jurisdiction. One of the named Defendants, however, is a now-dissolved California professional corporation by which Defendants illegally engaged in the unlicensed practice of law in California. Under well-established law, this California corporation, even though dissolved, must be treated as a citizen of California for the purposes of determining whether there is the required complete diversity. Given the presence of this California Defendant, complete diversity does not exist, and this case should be remanded. In addition to remand, Defendants should be ordered to reimburse Plaintiff for the attorney fees and costs incurred by their improper removal. Before filing this motion, Plaintiff attempted to meet-and-confer with Defendants, citing them to the legal authorities (addressed below) that establish that their removal was improper, and requesting that Defendants stipulate to remand. Defendants ignored this attempt to save the parties, and this Court, from unnecessary motion practice. Accordingly, in addition to remand, Defendants should be ordered to reimburse Plaintiff the just costs and actual expenses (including attorney fees), totaling $9651.29 (or an additional amount to be determined1), incurred by Plaintiff. II. FACTUAL AND PROCEDURAL BACKGROUND Given the focus of removal and remand issues presented, the allegations of the Complaint, and the causes of action alleged therein, may be summarized briefly. A. The Complaint Alleges State Law Claims Against Defendants, One Of Which Is A California Corporation The Complaint names three Defendants: (1) Scott Michael Moore, an individual
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Defendants filed a "Motion to Dismiss," and have noticed the same for hearing on June 4, 2008. If Plaintiff is forced to file an Opposition to this Motion to Dismiss, Plaintiff will seek the fees and costs incurred pursuant to 28 U.S.C. § 1447(c). Any such additional fees and costs will be addressed in Plaintiff's Reply in support of this Motion to Remand.
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(Complaint, ¶ 6); (2) Moore International Law Office, A Professional Corporation, a business entity, form unknown (id., ¶ 7); and (3) Moore International Law Office, A Professional Corporation," a California corporation No. C2346237 (hereinafter "MILOCA"). Id., ¶ 7. As the cited allegations of the Complaint indicate, MILOCA was/is a California corporation, No. C2346237, having its principal place of business in San Francisco, California. See attached Declaration of Neil Gieleghem ("Gieleghem Decl."), ¶ 2. Exhibit A (printout from website of California Secretary of State showing corporate registration of MILOCA). In their removal papers, Defendants admit that MILOCA was a California corporation, but claim that MILOCA was "dissolved" in June, 2004. See Notice of Removal, p. 5, ¶ 7, lns. 5-12. As shown below, however, this "dissolution" is irrelevant for the purposes of the diversity analysis that applies here. The Complaint alleges California state law claims for unfair business practices (First Cause of Action) and legal malpractice (Second Cause of Action) against all three Defendants. No federal claims are alleged, and Defendants do not contend otherwise. The California state law claims are based on the following operative allegations. ! None of the Defendants is, or has ever been, admitted to practice law in

California. Complaint, ¶ 13. ! Between 2001 and at least February, 2007, Defendants practiced law in San

Francisco in the guise of "Moore International Law Offices, A Professional Corporation," operating out of so-named offices in San Francisco. MILOCA, a California corporation (No. C2346237), apparently was incorporated by Defendants to facilitate their unlicensed practice of law in this state. Id.. ¶ 14. ! Plaintiff Nicholas Parker, a California resident throughout the relevant period,

retained Defendants in February, 2003, via MILOCA's offices in San Francisco, to represent him in regards to a dispute arising out of his brother's misappropriation, from their mother's estate, of certain real property located in Honduras. Id., ¶¶ 17-18; see also Exhibit A to Complaint (February 24, 2003 retainer letter on MILOCA letterhead, with San Francisco address). ! In the course of said retention, Defendants repeatedly advised Plaintiff in

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California as to the law of foreign jurisdictions (e.g., Honduras) and the laws of sister states. Throughout said retention (2003-2007), Defendants maintained law offices in California, in the guise of "Moore International Law Offices." Id., ¶¶ 19-24. ! In the course of said representation, Plaintiff paid Defendants over $151,000 in

legal fees and costs, in part in connection with a federal district court lawsuit that Defendants filed on Plaintiff's behalf in Florida. Id., ¶ 25. These allegations are sufficient to support causes of action against Defendants for unfair business practices and legal malpractice, based on Defendants having engaged in the unlicensed practice of law in California. See, e.g., Bluestein v. State Bar, 13 C3d 162, 174 (1974)("Giving legal advice [in California] regarding the law of a foreign country . . . constitutes the practice of law"; such legal advice by non-admitted attorney constitutes the unlicensed practice of law within the meaning of Cal. Bus. & Prof. Code § 6125).2 B. Defendants' Removal Is Based On The Theory That The California Citizenship Of MILOCA, A California Corporation, Can Be Ignored According to this Court's records, Defendants removed this action on or about April 9, 2008. The sole grounds for removal is diversity jurisdiction, i.e., Defendants do not allege federal question jurisdiction. In their removal papers, Defendants in essence claim that, because MILOCA allegedly was dissolved on or about June 24, 2004, MILOCA's citizenship as a California corporation can be ignored for the purposes of the diversity analysis. See Notice of Removal, p. 5, ¶ 7, lns. 1-25.

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With their removal papers, Defendants also served Plaintiff with a "Motion to Dismiss" challenging the Complaint on various grounds, e.g., statute of limitations, failure to join necessary parties. These challenges are irrelevant to the diversity jurisdiction issues presented here, and will be addressed by way of Plaintiff's Opposition to the Motion to Dismiss (if this case is not remanded beforehand). Defendants' Notice of Motion did not give notice of any hearing date for their Motion to Dismiss. (On April 24, 2008, Plaintiff received notice, via PACER, that the Motion to Dismiss was calendared for June 4, 2008.) Both these motion papers, and Defendants' subsequent filings, repeat Defendants' practice of listing Plaintiff's counsel in the "lead counsel" position on Defendants' pleadings. See Gieleghem Decl., ¶ 4.
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As shown below, this claim is contrary to well-established controlling law, and is not supported by the cases cited by Defendants in their removal papers. C. Defendants Ignored Plaintiff's Meet-And-Confer

Plaintiff received Defendants' removal papers on or about April 15, 2008, after they were mailed served by Defendants on or about April 11, 2008. See Gieleghem Decl., ¶ 3. On April 15, 2008, Plaintiff faxed Defendants a detailed meet-and-confer letter, citing the legal authorities addressed below, that established that MILOCA's California citizenship precluded removal based on diversity jurisdiction. On this basis, Plaintiff demanded that Defendants stipulate to remand on or before April 18, 2008, or Plaintiff would file a motion to remand and seek his attorney fees and costs pursuant to 28 U.S.C. § 1447(c). See Gieleghem Decl., ¶ 3, Exhibit B (April 15, 2008 meet-and-confer letter). Defendants made no response to this meet-and-confer letter, either by the April 18, 2008 deadline or thereafter. Instead, Defendants noticed their Motion to Dismiss for hearing on June 4, 2008, thereby potentially increasing the fees and costs that would be incurred by Plaintiff due to Defendants' improper removal. III. LEGAL ANALYSIS Diversity jurisdiction requires, among other things, that there be complete diversity between the plaintiffs and defendants. 28 U.S.C. § 1332(a). Under this requirement, none of the defendants can be citizens of the state in which the plaintiff filed the action. The courts have further limited diversity jurisdiction by construing diversity status strictly. Doubt as to whether jurisdiction exists normally is resolved against a finding of such jurisdiction. See, e.g., Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1092 (9th Cir. 1983); Sheenhan v, Gustafson, 967 F.2d 1214, 1215 (8th Cir. 1992). The burden of establishing the existence of federal subject matter jurisdiction lies with the party that seeks to invoke it. Littlefield v. Continental Cas. Co., 475 F.Supp. 887, 889 (CD CA 1979). Here, that burden lies on Defendants, the removing parties. \\\ \\\

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A.

One Of The Defendants Is A Citizen Of California, Which Bars Diversity Jurisdiction And Requires Remand

For the purposes of analyzing whether diversity exists, a corporation may have dual citizenship: "(A) corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1). As shown above, MILOCA is a California corporation with its principal place of business in California. See Complaint, ¶ 7. Accordingly, MILOCA is considered a citizen of California for diversity purposes, and its status as a Defendant prevents the complete diversity required for federal jurisdiction. This analysis and conclusion are not changed due to MILOCA's alleged dissolution in June, 2004, as made clear by the leading authority on California federal court practice. As addressed in Schwarzer, Tashima & Wagstaff, Cal. Prac. Guide: Fed. Civ. Proc. Before Trial (The Rutter Group 2008), §§ 2:321.4 - 2:321.7, there is a "three-way split" as to the proper test for the citizenship of a defunct (or inactive) corporation for diversity purposes. Id., § 2:321.4 (citing Patel v. Sugen, Inc., 354 F.Supp.2d 1098, 1111 (ND CA 2005)(citing Fed. Civ. Proc. Before Trial, supra, re "three-way split")). Under the first line of analysis, some courts look both to the state of the defunct corporation's incorporation and to the state of the corporation's last business activity. Id., § 2:321.5 (citing Athena Automotive, Inc. v. DiGregorio, 166 F3d 288, 291 (4th Cir. 1999); Circle Industries USA, Inc. v. Parke Const. Group, Inc., 183 F3d 105, 108 (2nd Cir. 1999)(inactive corporation's "principal place of business" is the state in which it last transacted business)). Under the second line of analysis, some courts hold an inactive corporation has no "place of business"and therefore is a citizen only of its state of incorporation. Id., § 2:321.6 (citing Midlantic Nat'l Bank v. Hansen, 48 F3d 693, 696 (3rd Cir. 1995)). Under the third line of analysis, some courts have adopted a case-by-case approach, i.e., if the corporation has been inactive for a substantial period of time (e.g., 5 years), it is a citizen only of the state where it is incorporated. Otherwise, the court must examine the corporation's

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activities as it was closing its doors and determine whether its business had a continuing impact in that locale. If so, the place of the defunct corporation's last business activity would be relevant to (but not dispositive of) the determination of its "principal place of business." Id., § 2:321.7 (citing Harris v. Black Clawson Co., 961 F2d 547, 551 (5th Cir. 1992); Athena Automotive, Inc. v. DiGregorio, supra, 166 F3d at 291­292 (corporation that ceased business activities still a citizen of place of incorporation because it kept its charter in good standing). Under each of the three lines of analysis described, MILOCA's incorporation in California requires that it be treated as a citizen of California in analyzing whether diversity exits. Because MILOCA must be treated as a citizen of California, regardless of its alleged dissolution, there is incomplete diversity. Defendants' removal papers show that, even before Plaintiff's meet-and-confer effort, Defendants recognized the bar to removal created by MILOCA's California citizenship. Defendants cite two cases in an attempt to avoid the jurisdictional bar, but neither supports Defendants' position. In the first case cited by Defendants, Strotek Corporation v. Air Transport Association of America, 300 F.3d 1129 (9th Cir. 2002), the Ninth Circuit held that diversity existed even though the complaint named a non-diverse unincorporated trade association as a defendant, because at the time the action was filed, and at the time of removal, the non-diverse association had been dissolved and a diverse incorporated successor had taken its place and assumed all of the association's rights and liabilities. Id. at 1131-1132. Addressing what it characterized as a "novel issue," the Ninth Circuit upheld the district court's conclusion that diversity existed because the "[diverse incorporated successor] was the [non-diverse] association's incarnation as of the time the complaint was filed and the action was removed." Id. at 1131-1132. The Court based this conclusion on several factors that do not exist here, e.g., the "undisputed record"showed that, at the time of removal, the allegedly "unincorporated association" in fact was a diverse corporation. Id. at 1132. Nothing in the factors presented in Strotek, or the Ninth Circuit's analysis of the "novel" issue presented by those factors, suggests that the Court's reasoning should be applied outside

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of its narrow facts, or that such an analysis should be applied in contravention of the existing, well-established law, addressed above, as to the diversity citizenship of dissolved or defunct corporations such as MILOCA. The second case cited by Defendants, Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567 (2004) is even further off the mark. In Grupo Dataflux, the Supreme Court held that post-filing change in plaintiff's citizenship, resulting from withdrawal of two Mexican citizens that were partners at time of filing, could not cure a defect in diversity jurisdiction. Clearly, Grupo Dataflux has nothing to do with the situation presented here, and does nothing to support Defendants' position. The presence of MILOCA as a Defendant precludes diversity jurisdiction. Accordingly, this case should be remanded. B. Plaintiff Is Entitled To Recover His Just Costs And Actual Expenses, Including Attorney Fees, Incurred As A Result Of Removal 28 U.S.C. § 1447(c) provides, in pertinent part: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." See also Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238, 240 (6th Cir. 1993). The statutory purpose of such an award of costs and fees is to deter the possibility of abuse, unnecessary expense and harassment if a defendant removes improperly. Circle Industries USA, Inc. v. Parke Const. Group, Inc., supra, 183 F.3d at 109. Although an award of fees and costs under 28 U.S.C. § 1447(c) is not mandatory, such an award does not require a showing of that the removal was "frivolous," "vexatious," lacked an "objectively reasonable basis," or was made in "bad faith," as required by other theories/grounds under which sanctions might be imposed. Moore v. Permanente Medical Group, Inc., 981 F.2d 443, 446 (9th Cir. 1992); Morgan Guar. Trust Co. v. Republic of Palau, 971 F.2d 917, 923-924 (2nd Cir. 1992); Tenner v. Zurek, 168 F.3d 328, 329-330 (7th Cir. 1999); Suder v. Blue Circle, Inc., 116 F.3d 1351, 1352 (10th Cir. 1997).

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"Just costs" under 28 U.S.C. § 1447(c) include filing fees, service of process fees, and attorneys fees, regardless of whether the plaintiff has in fact paid such fees, e.g., where the case is being handled on a contingency fee or pro bono basis. See Gotro v. R & R Realty Group, 69 F.3d 1485, 1448 (9th Cir. 1995); see also Tenner v. Zurek, supra, 168 F.3d 328 at 320 (just costs include document preparation expenses and travel costs). The above analysis shows that removal was improper, because this Court lacks federal subject matter jurisdiction. Further, before filing this motion to remand, Plaintiff put

Defendants' "on notice" of the legal authorities cited above, by way of counsel's April 15, 2008 fax letter. See Gieleghem Decl., Exhibit B. Defendants ignored this warning, and the cases on which Defendants rely cannot be read, under any reasonable interpretation, as in any way supporting their position. Under such circumstances, the fee and cost recovery sought is appropriate ­ if not mandated. As of the filing of this motion to remand, Plaintiff has incurred $4365.32 in attorney fees and costs, as documented in the attached Gieleghem Declaration. See Gieleghem Decl., ¶ 5. Plaintiff anticipates incurring an additional $5285.97 appearing at any hearing on this motion. See Gieleghem Decl., ¶ 6.3 Accordingly, Plaintiff respectfully requests that, in addition to remanding this case, this Court order Defendants to reimburse Plaintiff said fees and costs pursuant to 28 U.S.C. § 1447(c), which fees and costs will total $9651.29 through hearing. Gieleghem Decl., ¶¶ 5-6.4 IV. CONCLUSION For the reasons stated above, Plaintiff respectfully requests that this Court remand this case to the Superior Court for the State of California, County of San Francisco, and order

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Because the lack of subject matter jurisdiction is clear, this Court has the power to remand sua sponte, without opposition briefing or argument. See Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3rd Cir. 1989). If this Court so remands without additional briefing or argument, these additional, "post-filing" costs should not be included in the award.
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Consistent with the above, Plaintiff respectfully reserves the right to seek any additional fees and costs incurred as a result of Defendants' Motion to Dismiss.
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Defendants, pursuant to 28 U.S.C. § 1447(c), to reimburse Plaintiff his just costs and expenses, including attorney fees, in the amount of $9651.29 through hearing.

Dated: April 24, 2008

GIELEGHEM LAW OFFICE

s/ Neil Gieleghem Neil Gieleghem Attorneys for Plaintiff Nicholas H. Parker

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DECLARATION OF NEIL GIELEGHEM I, Neil Gieleghem, declare: 1. I have personal knowledge of the facts stated in this declaration and, if called as

a witness, could and would testify competently thereto. I am an attorney at law duly admitted to practice before all the courts of the State of California, and the United States District Courts, and I am counsel of record for Plaintiff Nicholas Parker. 2. Attached hereto as Exhibit A is a true and correct copy of a printout from the

official website of the California Secretary of State, showing that "Moore International Law Offices, A Professional Corporation," was a California corporation, No. C2346237, incorporated on or about June 4, 2001. 3. I received Defendants' removal papers on or about April 15, 2008, in an envelope

postmarked April 11, 2008. On April 15, 2008, I prepared and faxed/mailed to Defendants (Scott Michael Moore, Esq.) a detailed meet-and-confer letter, a true and correct copy of which is attached hereto as Exhibit B. As of the filing of this Motion to Remand, Defendants made no response to this letter, either by the April 18, 2008 deadline or thereafter. 4. As of the filing and service of this Motion to Remand, and based on my review

of the Register of Actions listed on official website of the San Francisco Superior Court, Defendants reportedly have not filed a Notice of Removal in San Francisco Superior Court. On or about April 24, 2008, however, I received notice, via the PACER system, that this case had been reassigned to Hon. Phyllis J. Hamilton, and that Defendants had noticed their "Motion to Dismiss" for hearing on June 4, 2008. 5. My billing rate in this case is $350.00. As of the filing and service of this Motion,

Plaintiff has incurred the following fees and costs Work Performed/Costs April 14, 2008 Initial review of Notice of Removal; on-line legal research re diversity citizenship of dissolved/defunct corporation; draft and final letter to Defendants' counsel (Moore) re legal authorities and demanding stipulating to remand; email to client re

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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 27 28 April 24, 2008: April 23, 2008: April 18, 2008: April 15, 2008

removal/remand issues; on-line research re USDC ND Cal. Local Rules re motion practice. Time: Fax Costs: Postage: Copying: 3.1 hrs @ $350/hr = 4 pgs @ .25/pg = .41 = 3 pgs & .22/pg = $1050.00 $1.00 .41 .66

T/c client re developments; additional on-line research re USDC ND Cal. motion procedures. Time: .4 hrs @ $350/hr = $140.00

On-line research, via PACER, re status of federal court action, including date of removal, CMC, etc.; review of Court's Standing Orders re anticipated motion practice, etc. Time: PACER: 2.7 hrs @ $350/hr = .88 = $974.00 .88

On-line research, via Westlaw, re case authority for motion to remand; SF Superior Court website re state court filings; complete initial drafting of motion in anticipation of April 24, 2008 filing and service. Time: Westlaw: 4.5 hrs @ $350/hr = $65.00 = $1575.00 $65.00

Final proofing and revisions to Motion to Remand; coordinate final preparation and service (fax and mailing); e-filing with Court. Time: 1.5 hrs @ $350/hr = $525.00

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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 27 28 Total through hearing: Post-filing subtotal: [June 6, 2008] 6. Total as of motion filing:

Postage: Copying: 70 pgs @ .22/pg: Overnight Mail to Court (Chambers Copies) Fax: 18 pgs @ .25/pg.

.97 15.40

12.50 4.50

$4365.32

If further briefing and/or a hearing is required, Plaintiff anticipates incurring the

following additional fees and costs: Work Performed/Costs [Anticipated] Review of Opposition papers; preparation, filing and service of Reply. Time: 6 hrs @ $350/hr Copying: Fax: Postage: $2100.00 $10.00 $3.00 .97

Travel to/from, appear at, hearing. [Portal-to-portal; LAX-SFOLAX] Time: 8 hrs @ $350/hr Airfare: Parking: Ground Transportation: $2800.00 $282.00 $30.00 $60.00 _______________ $5285.97 _______________ $9651.29

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7.

The above-referenced anticipated fees and costs are separate from any fees and

costs that will be incurred by Plaintiff in opposing Defendants' pending Motion to Dismiss, which fees and costs will be detailed in any Reply filed in support of this Motion. I declare, under penalty of perjury under the laws of the State of California and the federal law, that the foregoing is true and correct. Executed on this 24th day of April, 2008, at Los Angeles, California.

s/ Neil Gieleghem NEIL GIELEGHEM

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PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF LOS ANGELES ) ) ss. )

I am a resident of the State of California; over the age of 18 years; and not a party to the within action; and my business address is: 1875 Century Park East, Suite 300, Los Angeles, California 90067. On April 24, 2008 I served the foregoing document described as: NOTICE OF MOTION AND MOTION TO REMAND AND REQUEST FOR JUST COSTS AND ACTUAL EXPENSES (OF $9651.29, OR ADDITIONAL AMOUNT TO BE DETERMINED); MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF NEIL GIELEGHEM [X] (BY MAIL ) By placing the true copies of the document(s) listed above in a sealed envelope, fully prepaid, addressed to the recipient(s) listed below. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in said affidavit. (BY FAX) By transmitting, on this date, via facsimile, the document(s) listed above to the fax number(s) set forth above. (BY EXPRESS MAIL) By placing the document(s) listed above in a sealed Federal Express envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a Federal Express agent for delivery. (BY ELECTRONIC TRANSMISSION) By transmitting via electronic mail the document(s) listed above to each recipient listed below. (BY PERSONAL SERVICE) I delivered such envelope by hand to the office of the addressee.

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Scott Michael Moore, Esq. Moore International Law Offices, P.C. 45 Rockefeller Plaza, Suite 2000 (630 5th Avenue, Suite 2000) New York, New York 10111 Tel: (212) 322-3474 Fax: (212) 332-3475 [email protected] Attorneys for Defendants I declare under penalty of perjury under the laws of the State of California, and the United States of America, that the above is true and correct. Executed on April 24, 2008, in Los Angeles, CA. s/ Neil Gieleghem Neil Gieleghem
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PLAINTIFF'S MOTION TO REMAND, ETC., CASE NO. 3:08-CV-01896-PJH

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