UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA LINDA DIANE HICKS Plaintiffs * * * C.A. NO.

______________ * DONALD PAUL DUFFIELD, * JUDGE: JACK IN THE BOX, INC., JACK IN THE * BOX EASTERN DIVISION, LP, * MAGISTRATE: CNL INCOME FUND VIII, LTD., CNL APF * PARTNERS, LP, and ACE AMERICAN * INSURANCE COMPANY * ************************************************************************

NOTICE OF REMOVAL
Defendants, Jack in the Box, Inc., Jack in the Box Eastern Division, LP, CNL Income Fund VII, Ltd., CNL APF Partners, LP and ACE American Insurance Company, by and through undersigned counsel, hereby give notice of the removal of this action from the 21st Judicial District Court for Livingston Parish, Louisiana to the United States District Court for the Middle District of Louisiana. In support of its Notice of Removal, defendants state as follows: 1. This action was originally commenced by Linda Diane Hicks on June 15, 2013 through the filing of a Petition in the 21st Judicial District Court for the Parish of Livingston, State of Louisiana, captioned Linda Diane Hicks versus Jack in the Box, Inc. et al, and assigned Case No. 141516 Div. A. 2. 3. Jack in the Box, Inc. was served with plaintiffs Petition on June 18, 2013. Jack in the Box Eastern Division, LP was served with plaintiffs Petition on June 18,

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2013. 4. 5. 6. CNL Income Fund VIII, Ltd. was served with plaintiffs Petition on June 18, 2013. CNL APF Partners, LP was served with plaintiffs Petition on June 18, 2013. Ace American Insurance Company was served with plaintiffs Petition on June 18, 2013. 7. 8. Donald Paul Duffield has not been served with plaintiffs Petition. The United States District Court for the Middle District of Louisiana is the court embracing the place wherein such action is pending in state court. 9. 10. The amount in controversy exceeds $75,000, exclusive of interest and costs. This Court has jurisdiction over this matter and it is properly removed to this Court pursuant to 28 U.S.C. 1332, 1441 and 1446. Diversity of Citizenship 11. This action is properly removed to this Court pursuant to 28 U.S.C. 1332 and 1441, in that all properly joined and served parties are of diverse citizenship, and the amount in controversy exceeds $75,000, exclusive of interest and costs. 12. Plaintiff, Linda Diane Hicks is a person of the full age of majority who resides in the Livingston Parish, Louisiana. See Petition for Damages, at p. 1, attached as Exhibit B. 13. At the time of the filing of the Petition for Damages and at all times thereafter, defendant, Ace American Insurance Company, was and is incorporated under the laws

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of Pennsylvania, with its principal place of business in Pennsylvania. 14. At the time of the filing of the Petition for Damages and at all times thereafter, defendant, Jack in the Box, Inc., was and is incorporated under the laws of Delaware, with its principal place of business in California. 15. At the time of the filing of the Petition for Damages and at all times thereafter, defendant, Jack in the Box Eastern Division, LPs, partners are located in California, it was and is formed under the laws of Texas, and has a principal place of business in California. 16. At the time of the filing of the Petition for Damages and at all times thereafter, defendant, CNL Income Fund VII, Ltd., was an inactive corporation that was previously incorporated under the laws of Florida, with its principal place of business in Florida. 17. At the time of the filing of the Petition for Damages and at all times thereafter, defendant, CNL APF Partners, LPs partners are located in Maryland, it was and is formed under the laws of Florida, with its principal place of business in Arizona. 18. At the time of the filing of the Petition for Damages and at all times thereafter, defendant, Donald Paul Duffield, was a person allegedly of the full age of majority that is claimed to reside in Livingston Parish, Louisiana. However, at this time, Mr. Duffield has not been served with this suit. Thus, the naming of Mr. Duffield as a defendant does not effect diversity or removal of this suit because he has been

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fraudulently joined and has not been served.1 As admitted on the face of the Petition, Mr. Duffield was the assistant manager of Jack in the Box. Plaintiff is unable to state a cause of action against Mr. Duffield in his individual capacity under Louisiana law.2 17. Thus, complete diversity of citizenship existed at the time of the filing of the Petition, and at all times thereafter, between plaintiff and defendant. Amount in Controversy 18. Louisiana Code of Civil Procedure Article 893A.(1) articulates the following requirements for the pleading of monetary damages: the prayer for relief shall be for such damages as are reasonable in the premises except that if a specific amount of damages is necessary to establish . . . the lack of jurisdiction of federal courts due to insufficiency of damages, . . . a general allegation that the claim exceeds or is less than the requisite amount is required. As a result, Article 893 requires plaintiff to generally state that the claim is less than the jurisdictional amount in order to establish a lack of federal jurisdiction. Plaintiff failed to make such an allegation as is required by the statute. (See Exhibit B)

28 USC 1441; Evans v. Rare Coin Wholesalers, Inc., 4:09CV259, 2010 WL 595653 (E.D. Tex. Jan. 28, 2010); Ott v. Consol. Freightways Corp. of Delaware, 213 F. Supp. 2d 662, 665 (S.D. Miss. 2002); Stewart v. Auguillard Const. Co., 2009 WL 5175217, *3 (E.D. La. 2009); Harvey v. Shelter Ins. Co., CIV.A. 13-392, 2013 WL 1768658 (E.D. La. Apr. 24, 2013); Texas Beef Group v. Winfrey, 201 F.3d 680, 685 (5th Cir. 2000). Canter v. Koehring Co., 283 So. 2d 716, 722 (La. 1973); Dodson v. K-Mart Corp., 2004-117 (La. App. 3 Cir. 12/22/04), 891 So. 2d 789, 793. See also, Black v. Lowes Home Centers, Inc., 10-478, 2012 WL 47980906 (M.D. La. 10/22/10), report and recommendation adopted by, 10-478, 2010 (M.D. La. 10/22/10); Brady v. Wal-mart Stores, Inc., 907 F.Supp. 958 (M.D. La. 1995); Moore v. Smith, 2012 WL 1123756 (W.D. La. 4/2/12).
4
2

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19.

Because plaintiffs in Louisiana state courts, by law, may not specify the numerical value of claimed damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000.3 The removing defendant may prove the amount in controversy by establishing that the claims are likely above $75,000.4 Removal

20.

As shown above, this civil action is one in which this Court has original jurisdiction pursuant to 28 U.S.C. 1332, in that it is a civil action between citizens of different states where the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs. Therefore, this action may be removed pursuant to 28 U.S.C. 1441.

21.

Pursuant to 28 U.S.C. 1446(d), plaintiff, Linda Diane Hicks, is being provided with a copy of this Notice of Removal and a copy is also being filed with the 21st Judicial District Court for the Parish of Livingston, State of Louisiana.

22.

The removing defendants attach a copy of all process, pleadings, and orders served upon them at the time of removal.5

23.

Consistent with the provisions of 28 U.S.C. 1446(d), no further proceedings shall

3 4 5

Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880 at 882-883 (5th Cir. 2002).
Id. 28 U.S.C. 1446(a).

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occur in this matter in the 21st Judicial District Court for the Parish of Livingston, State of Louisiana. 24. Pursuant to Rule 11 of the Federal Rules of Civil Procedure, undersigned counsel certifies reading the foregoing Notice of Removal, that to the best of their knowledge, information and belief formed after reasonable inquiry, it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose. 25. By filing this Notice of Removal, the removing defendants do not waive, and hereby reserve all defenses and objections to the Plaintiffs Petition/Complaint. WHEREFORE, Jack in the Box, Inc., Jack in the Box Eastern Division, L.P., CNL Income Fund VIII, Ltd., CNL AFP Partners, L.P., and Ace American Insurance Company respectfully request that this Court assume full jurisdiction over the cause herein as provided by law inasmuch as this Court has jurisdiction over the dispute because all parties are completely diverse and the jurisdictional amount has been met.

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Respectfully submitted, KEOGH, COX & WILSON, LTD. 701 Main Street (Post Office Box 1151) Baton Rouge, Louisiana 70821 Telephone: 225.383.3796 Facsimile: 225.343.9612 BY: /s/ Gracella Simmons GRACELLA SIMMONS, Bar #12082 COLLIN J. LEBLANC, Bar #24519 VIRGINIA J. MCLIN, Bar #31257 Attorneys for Jack in the Box, Inc., Jack in the Box Eastern Division, LP, CNL Income Fund VIII, Ltd., CNL APF Partners, LP, Ace American Insurance Company CERTIFICATE OF SERVICE I do hereby certify that I have on this 16th day of July , 2013, served a copy of the foregoing Notice of Removal on counsel for all parties to this proceeding via US Mail, facsimile or electronic mail, as follows: D. G. Tyler Tyler & Joihnson, LLC 4700 Line Avenue, Ste. 111 Shreveport, LA 71106 Counsel for Plaintiff /s/ Gracella Simmons GRACELLA SIMMONS

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