Free Notice of Removal - District Court of Delaware - Delaware

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UNITEDSTATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE McGIVNEY & KLUGER, P.C. Mary F. Higgins (No. 4179) 1001 North Jefferson Street, Suite 208 Wilmington, DE 19801 (302) 225-0458 ­ Telephone (302) 777-4111­ Facsimile Attorneys for Defendant RAYMOND W. COBB and RAYMOND W. COBB, LLC, A Delaware Limited Liability Company, Plaintiffs, vs. McGIVNEY & KLUGER, P.C., A Foreign Professional Corporation Defendant. NOTICE OF REMOVAL TO FEDERAL COURT

TO: THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Defendant McGivney & Kluger, P.C.,, by and through the undersigned attorneys, files this Notice of Removal of the above-entitled action from the Superior Court of Delaware-New Castle County, and respectfully submits the following as the bases for removal to this Court pursuant to 28 U.S.C. §1441, et seq. and 1446(a): Introduction 1. Plaintiffs have initiated this action in the Superior Court of Delaware-New Castle

County, alleging that plaintiffs Raymond W. Cobb, LLC and Raymond W. Cobb, Esq., entered into a contract with defendant McGivney & Kluger, P.C. ("MK").

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2.

Copies of the plaintiffs' Summons and Complaint filed in the state court are

annexed hereto as Exhibit A. 3. The matter in state court is known as Cobb v. McGivney & Kluger, P.C., and has

been assigned the Civil Action. No. 08C-02-368 TBA. Bases for Federal Jurisdiction Diversity of Citizenship 4. At the time of the commencement of this action, plaintiff Raymond W. Cobb,

Esq., is an attorney at law of the State of Delaware. Upon information and belief, he resides in Delaware and maintains his principle office c/o Raymond W. Cobb, LLC, 1001 North Jefferson Street, Suite 208, Wilmington, Delaware. 5. Upon information and belief, and at the time of the commencement of this action,

plaintiff Raymond W. Cobb, LLC, is a limited liability company established pursuant to the laws of the State of Delaware, and which has a principle office at 1001 North Jefferson Street, Suite 208, Wilmington, Delaware. 6. At the time of the commencement of this action, MK is a professional corporation

for the practice of law that is incorporated pursuant to the laws of the State of New Jersey and authorized to do business in Delaware as a foreign corporation, and has its principle office at 23 Vreeland Road, Suite 220, Florham Park, New Jersey. 7. Therefore, there is complete diversity of citizenship between the parties per 28

U.S.C. §1332(a) (1) and (c) (1). 8. MK is not a citizen of Delaware and the action is properly removable to this Court

per 28 U.S.C. §1441(a and b).

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9.

The fact that MK is authorized to do business in Delaware as a foreign

corporation does not change the fact that its citizenship for purposes of determining diversity jurisdiction is in New Jersey, the state where (as alleged in the state court complaint, Para. 3) it is incorporated and where its principle place of business is located. "The mere fact that a

corporation is doing business or is licensed to do business in a state does not make it a citizen of that state for purposes of diversity jurisdiction." Jim Walter Investors v. Empire-Madison, Inc., 401 F.Supp. 425, 426-27 (N.D.Ga.1975), Barnett v. Norfolk & Dedham Mut. Fire Ins. Co., 773 F.Supp. 1529, 1531 (N.D.Ga.1991)." Tremble v. Liberty Mut. Ins. Co., 2007 WL 1582759 at *2 (S.D.Ga. 2007). Accord, Comfort Realty Corp. v. Balboa Life Ins. Co., 2005 WL 2581483 (M.D.Fla.2005)(mere authority to do business does not establish a state of incorporation or the existence of a principle place of business per 28 U.S.C. 1332(c)(1) necessary for corporate citizenship). Amount in Controversy 10. In their Complaint, plaintiffs allege that they are owed $165,025 as a result of

MK's breach of contract by reason of its failure to have paid them pursuant to the contract. 11. Plaintiffs also allege that MK is liable for double damages and attorney's fees for

violation of 19 Del. C. 1101, et seq. 12. frivolous. 13. Nonetheless, the foregoing allegations and statements on behalf of the plaintiffs MK believes that the demand for enhanced damages under Delaware law is

demonstrate that the amount in controversy herein exceeds $75,000.

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14.

Therefore, by reason of the diversity of citizenship between the parties and the

amount in controversy, this action could have been initiated in this Court and is removable pursuant to 28 §U.S.C. 1441(a and b). Venue 15. Pursuant to 28 U.S.C. §1441(a), venue is proper in the United States District

Court for the District of Delaware because this District embraces the place where the removed action is pending. The Notice of Removal Is Timely 16. Plaintiffs purported to provide a courtesy copy of their Complaint, annexed hereto

as Exhibit A, upon MK via email prior to formal service, which was received on February 29, 2008. 17. Therefore, the time within which MK may remove this action to this Court has

not yet elapsed and this Notice of Removal is filed in a timely manner. 28 U.S.C. §1446(b). 18. As of March 3, 2008, the undersigned has been authorized to accept service of

process and an acknowledgment of service will be returned to counsel for plaintiffs following the filing of the within Notice of Removal. Papers Filed in the State Court 19. The papers annexed as Exhibit A comprise all pleadings, process, orders and other

papers filed with the Superior Court of Delaware-New Castle County. 28 U.S.C. §1446(a).

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Notice of Filing of Notice of Removal 20. Pursuant to 28 U.S.C. §1446(d), written Notice of the filing of the within Notice

of Removal will be served promptly upon counsel for the plaintiffs and will be filed immediately with the Office of Prothonotary of the Superior Court of Delaware, New Castle County, at the New Castle County Courthouse, 500 King Street Wilmington, Delaware, through that Court's electronic filing system. A copy of this Notice of Filing (without Exhibit 1, which will be a copy of the within Notice of Removal) is annexed hereto as Exhibit B. WHEREFORE, defendant McGivney & Kluger, P.C., hereby removes the state court action known as Cobb v. McGivney & Kluger, P.C., Civil Action. No. 08C-02-368 TBA, in the Superior Court of Delaware, New Castle County. McGIVNEY & KLUGER, P.C. Attorneys for Defendant

By: /s/ Mary F. Higgins___________ Mary F. Higgins Dated: March 3, 2008

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DECLARATION PURSUANT TO FRCP 7.1(a) I hereby declare under penalty of perjury that defendant Mcgivney and Kluger, P.C. is: a) a nongovernmental party; b) that it has no parent corporation; and c) that no publicly traded corporation owns 10% or more of its corporate stock or other ownership. I declare under penalty of perjury pursuant to 28 U.S.C. §1746 that the foregoing statements made by me are true and I am aware that if they are willfully false, I am subject to punishment. /s/_Mary F. Higgins____________ Mary F. Higgins Dated: March 3, 2008

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EXHIBIT A

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EXHIBIT B

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IN THE DELAWARE SUPERIOR COURT FOR THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY RAYMOND W. COBB, and RAYMOND W. COBB, LLC, a Delaware Plaintiffs, v. MCGIVNEY & KLUGER, P.C. a Foreign Professional Corporation, Defendants. TO: : : : : : : : : : :

C.A. No. 08C-02-368 TBA

NOTICE OF FILING OF NOTICE OF REMOVAL Jeffrey M. Weiner, Esquire Law Offices of Jeffrey M. Weiner, P.A. 1332 King Street Wilmington, DE 19801

Office of Prothonotary New Castle County Courthouse 500 King Street Wilmington, DE 19801

PLEASE TAKE NOTICE that on March 3, 2008, defendant McGivney and Kluger, P.C., by and through the undersigned counsel, filed a Notice of Removal in the United States District Court for the District of Delaware, thereby removing this action thereto and prohibiting further proceedings in the Delaware Superior Court unless and until the action is remanded. A true and correct copy of the Notice of Removal is attached hereto as Exhibit 1. MCGIVNEY & KLUGER, P.C.

Dated: March 3, 2008

By:

/s/_________________________________ Mary F. Higgins (No. 4179) McGIVNEY 1001 North Jefferson Street, Suite 208 Wilmington, DE 19801 (302) 225-0458 ­ Telephone (302) 777-4111­ Facsimile Pro Se Defendant

Of Counsel: William D. Sanders, Esq. MCGIVNEY AND KLUGER, P.C 23 Vreeland Road Florham Park, NJ 07932 973-822-1110 ­ Telephone 973-822-1116 - Facsimile

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EXHIBIT "1"

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2JS 44 (Rev. 12/07)

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The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS RAYMOND W. COBB AND RAYMOND W. COBB, LLC (b) County of Residence of First Listed Plaintiff

DEFENDANTS

McGIVNEY & KLUGER, P.C.
County of Residence of First Listed Defendant

New Castle

New Castle

(EXCEPT IN U.S. PLAINTIFF CASES)

(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorney's (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Jeffrey M. Weiner, Esq., 1332 King Street, Wilimington, DE 302-652-0505 II. BASIS OF JURISDICTION (Place an "X" in One Box Only)
u 1
U.S. Government Plaintiff

Mary F. Higgins, McGivney & Kluger, P.C., 1001 North Jefferson Street, Suite 208 Wilmington, DE 302III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff
(For Diversity Cases Only) PTF u 1 Citizen of This State Citizen of Another State DEF u 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place u 4 u 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation

u 3 Federal Question (U.S. Government Not a Party) u 4 Diversity
(Indicate Citizenship of Parties in Item III)

u 2

U.S. Government Defendant

u 2 u 3

u u

2

u 5 u 6

u 5 u 6

Citizen or Subject of a Foreign Country

3

IV. NATURE OF SUIT
CONTRACT

(Place an "X" in One Box Only) TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY u 362 Personal Injury Med. Malpractice u 365 Personal Injury Product Liability u 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY u 370 Other Fraud u 371 Truth in Lending u 380 Other Personal Property Damage u 385 Property Damage Product Liability PRISONER PETITIONS u 510 Motions to Vacate Sentence Habeas Corpus: u 530 General u 535 Death Penalty u 540 Mandamus & Other u 550 Civil Rights u 555 Prison Condition

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u u u u u u u u u u u u u u u u u u

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

u u u u u u u u u u u u u u u u

u 610 Agriculture u 620 Other Food & Drug u 625 Drug Related Seizure of Property 21 USC 881 u 630 Liquor Laws u 640 R.R. & Truck u 650 Airline Regs. u 660 Occupational Safety/Health u 690 Other LABOR u 710 Fair Labor Standards Act u 720 Labor/Mgmt. Relations u 730 Labor/Mgmt.Reporting & Disclosure Act u 740 Railway Labor Act u 790 Other Labor Litigation u 791 Empl. Ret. Inc. Security Act
IMMIGRATION u 462 Naturalization Application u 463 Habeas Corpus Alien Detainee u 465 Other Immigration Actions

u 422 Appeal 28 USC 158 u 423 Withdrawal 28 USC 157
PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 840 Trademark

u u u u u u u u u u u u u u u u u u u

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS u 870 Taxes (U.S. Plaintiff or Defendant) u 871 IRS--Third Party 26 USC 7609

u u u u u

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes

V. ORIGIN

u 1 Original Proceeding

u 2 Removed from
State Court

(Place an "X" in One Box Only)

Appeal to District Appellate Court

u 3 Remanded from

u 4 Reinstated or u 5 Transferred from u 6 Multidistrict another district Reopened Litigation (specify)

u 7 Judge from Magistrate
Judgment

28 U.S.C. 1332 VI. CAUSE OF ACTION Brief description of cause: Dispute between New Jersey law firm and supervisor of its Delaware office CHECK YES only if demanded in complaint: DEMAND $ u CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER F.R.C.P. 23 Yes 330,050.00 u u No JURY DEMAND: COMPLAINT:
VIII. RELATED CASE(S) IF ANY
DATE (See instructions):

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

JUDGE
SIGNATURE OF ATTORNEY OF RECORD

DOCKET NUMBER

03/03/2008
FOR OFFICE USE ONLY RECEIPT # AMOUNT

/s/ Mary F. Higgins (Del Bar No. 4179)

APPLYING IFP

JUDGE

MAG. JUDGE