IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

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					     Case 2:05-cv-00970-MHT-DRB            Document 4        Filed 10/26/2005       Page 1 of 11



                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE MIDDLE DISTRICT OF ALABAMA
                                NORTHERN DIVISION


ARLENE RICHARDSON,                                 )
RODERICK RICHARDSON,                               )
                                                   )
       Plaintiffs,                                 )
                                                   )
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.                                  )
                                                   )
       Defendants.                                 )


_____________________________________________________________________________

                      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

        ¶¶10,11,12.)

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
     Case 2:05-cv-00970-MHT-DRB            Document 4         Filed 10/26/2005        Page 2 of 11



        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
     Case 2:05-cv-00970-MHT-DRB            Document 4         Filed 10/26/2005        Page 3 of 11



        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
  Case 2:05-cv-00970-MHT-DRB                Document 4        Filed 10/26/2005        Page 4 of 11



         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

Court.


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
(334) 288-2435
gholtonattorney@direcway.com
  Case 2:05-cv-00970-MHT-DRB              Document 4        Filed 10/26/2005      Page 5 of 11




                                 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
                                     rmanley@burr.com


                              _____________________________________
                              s/Michael Guy Holton (HOL106)
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