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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
ARLENE RICHARDSON, )
RODERICK RICHARDSON, )
GMAC MORTGAGE CORPORATION dba ) CASE No.: 2:05 CV 00970-DRB
DiTECH.COM, and fictitious parties “A”,”B”.” )
C”, “D”, “E”, “F”, “G”, “H”, )
and those other persons, entities, or corporations )
, whose names are unknown to Plaintiff at this )
time, however, will be added by amendment )
when ascertained. )
PLAINTIFFS MOTION TO REMAND
COMES NOW Plaintiffs, Arlene Richardson and Roderick Richardson, by and through
the undersigned counsel of record, and make this their Motion to Remand of the above
referenced Civil Action and state as follows;
1. Plaintiffs stipulate to the pleading of Defendants that the stated amount in controversy is
at minimum $75,000.00 in the event that Plaintiffs allegations in Plaintiffs Complaint are
correct.(Please see Defendant GMAC d/b/a DiTech.com “Notice of Removal, at
2. Plaintiffs object that diversity of citizenship exists inasmuch as Plaintiffs have plead in
their Complaint that fictitious parties exist, moreover, that one fictitious party Defendant,
whose name is unknown and unavailable to Plaintiffs at this time but is likely to be
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revealed through the process of discovery, is a resident of Alabama. (Please see attached
Affidavits of Plaintiffs hereinafter referred to as “Plaintiffs Exhibits 6 and 7".)
3. That where Plaintiffs have plead fictitious defendants, Plaintiffs are at least entitled to
discovery to reveal the names and addresses relevant for proper service. Further, that
Plaintiffs verify such a fictitious defendant exist who will be named as a party once the
proper name and address is ascertained through discovery.
4. Plaintiffs verify via “Plaintiffs Exhibit 6 and 7", attached hereto, that the fictitious
defendant informed Plaintiffs he resided in Alabama and at all times material to the
matters made the basis of this suit was acting as an agent of Defendant GMAC d/b/a
DiTech.com. Moreover, the Fictitious Defendant alluded to by Plaintiffs in their
Complaint and specifically herein was, at all times material to the transactions made the
basis of this suit, involved in the intricate details of the transaction having met with
Plaintiffs in their home in Crenshaw County, Alabama and conducted business with these
Plaintiffs in Crenshaw County, Alabama.
5. Defendant GMAC d/b/a DiTech.com have prematurely filed their Notice of Removal
seeking this Honorable Court to take jurisdiction of the matters as presented. Further, it
remains most plausible, probable, and likely that upon discovery of Defendant GMAC’s
agent, Fictitious Defendant A, Plaintiffs will amend their Complaint to properly name
Fictitious Defendant A and likewise effect service of same.
6. Plaintiffs intend to amend their Complaint to name Fictitious Defendant A, believed to
be an Alabama resident. Such Amendment to Plaintiffs complaint would thereby destroy
diversity of citizenship and ripen a later motion to remand. In the interest of judicial
economy Plaintiffs provide Your Honor with Affidavits (attached hereto as “Plaintiffs
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Exhibits 6 & 7) of their knowledge of Fictitious Defendant A and object to removal
based on diversity of citizenship. There exist or will exist a lack of complete diversity
inasmuch as Fictitious Defendant A, barring disappearance, will be served in the above
styled cause of action.
7. The Court has held that where Plaintiffs plead in their Complaint fictitious defendant(s)
that such pleading does not destroy diversity of citizenship of the parties, however, in the
instant case Plaintiffs have verified that a fictitious defendant exists and is believed to be
a resident of the State of Alabama, and at all times material to the transactions and
occurrences made the basis of this suit, that said fictitious defendant informed Plaintiffs
he was a resident of Alabama.
“In the memorandum opinion entered on September 18, 1990, this
court did not mean to impart a belief that the existence of fictitious
parties defendant in a pending state action automatically destroys
diversity jurisdiction. This was, of course, the general rule until the
fairly recent amendment to 28 U.S.C. § 1441(a), which now
disregards fictitious defendants for purposes of removal. This
court did mean to exercise its discretion under 28 U.S.C. § 1447(e)
and to recognize in this particular case the fact that an actual
person yet formally to be named by plaintiffs as a defendant, is
known both to plaintiffs and to defendants, and is known to be a
resident of the same state as are the plaintiffs. On this basis the
court declined to assume diversity jurisdiction. This was simply a
shorthand method of allowing an amendment to add the non-
diverse party and then remanding. Although the order of remand
was effective September 18, 1990, the Clerk is directed to mail a
copy of this amendment to counsel for all parties and to the Clerk
of the Circuit Court of Dekalb County, Alabama.”
Wright v. Sterling Investors Life Ins. Co., 747 F.Supp. 653, (N.D.Ala.,1990)
8. Plaintiffs have not merely made a fraudulent averment in naming arbitrary fictitious
defendants or the possibility thereof. Plaintiffs are certain that at least one fictitious
defendant exists and to Plaintiffs knowledge as verified is a resident of Alabama and was
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acting as an agent of Defendant GMAC at all times material hereto and intimately
involved in the transactions made the basis of this suit. The Defendants in their Notice of
Removal have failed to establish that Plaintiffs fraudulently joined fictitious parties.
Further, it has been held that statutory federal jurisdiction based on diversity of
citizenship means complete diversity, the Defendants have made no claim as to federal
question jurisdiction and have failed to prove complete diversity of citizenship.
“ The party invoking federal jurisdiction has the burden of
affirmatively pleading sufficient facts to establish it.” McNutt v.
General Motors Acceptance Corp. Of Indiana, 298 U.S. 178, 56 S.
Ct. 780, 80 L.Ed. 1135 (1936; FedR.Civ.P. 8(a)(1).
“It is not sufficient that federal jurisdiction may potentially exist;
the party invoking federal jurisdiction must affirmatively establish
it.” McNutt, supra.
WHEREFORE THESE PREMISES CONSIDERED Plaintiffs respectfully pray this
Honorable Court to remand the above styled cause of action to the Crenshaw County Circuit
RESPECTFULLY SUBMITTED this the 25th day of October, 2005.
s/Michael Guy Holton
Michael Guy Holton (HOL106)
Attorney for Plaintiffs
2779 Old Carter Hill Road
Pike Road, Alabama
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CERTIFICATE OF SERVICE
I do hereby certify that I have served a copy fo the above “Motion to Remand” on the
below listed counsel of record by placing a copy of the same in the U.S. mail, first class, postage
pre-paid on this the 25th day of October, 2005.
Reid S. Manley,Esq.
Robert R. Maddox, Esq.
Alan D. Leeth, Esq.
Burr & Forman LLP
3100 South Trust Tower
420 North 20th Street
Birmingham, Alabama 35203
s/Michael Guy Holton (HOL106)
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