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. William D. Sanders 23 Vreeland Road, Suite 220 Florham Park, New Jersey 07932 (973) 822-1110 Attorneys for Defendant, pro se 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., pro se, files this Notice of Removal of the aboveentitled 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. 4. MK appears pro se and submits these papers as permitted by Local Civil Rule

5.1.1(a) and (b)(3). Bases for Federal Jurisdiction Diversity of Citizenship 5. 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. 6. 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. 7. 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. 8. Therefore, there is complete diversity of citizenship between the parties per 28

U.S.C. §1332(a) (1) and (c) (1).

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9.

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). 10. 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 11. 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. 12. Plaintiffs also allege that MK is liable for double damages and attorney's fees for

violation of 19 Del. C. 1101, et seq. 13. frivolous. 14. 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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15.

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 16. 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 17. 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. 18. 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). 19. 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 20. 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 21. 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, pro se

By: /s/ William D. Sanders_____________ William D. Sanders 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/_William D. Sanders_______________ William D. Sanders 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. : : : : : : : : : :

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

NOTICE OF FILING OF NOTICE OF REMOVAL TO: Office of Prothonotary New Castle County Courthouse 500 King Street Wilmington, DE 19801 Jeffrey M. Weiner, Esquire Law Offices of Jeffrey M. Weiner, P.A. 1332 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 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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DECLARATION OF SERVICE AND FILING 1. I declare under penalty of perjury that on this 3rd day of March, 2008, I caused the

within Notice of Removal on behalf of defendant McGivney and Kluger, P.C., together with a Civil Cover Sheet, to be filed with the Clerk of the United States District Court for the District of Delaware at the Courthouse in Wilmington, Delaware, by means of the Court's electronic filing system together with the payment of the appropriate fee. 2. On this 3rd day of March, 2008, a true and exact copy of the above Notice of

Removal on behalf of defendant McGivney and Kluger, P.C., has been served upon counsel for the plaintiffs, Jeffrey M. Weiner, Esq., Law Offices of Jeffrey M. Weiner, P.A., 1332 King Street, Wilmington, DE 19801, via overnight courier and, to the extent he is registered for the same, through the court's electronic filing system. 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/__William D. Sanders_______ William D. Sanders Dated: March 3, 2008

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