Warner v. Schmidt et al Doc. 1
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
BILL WARNER PRIVATE INVESTIGATOR, ) Civil No. ) Plaintiff, ) -v.- ) NOTICE OF REMOVAL ) ERIC E. SCHMIDT, GOOGLE INC., PHYLLIS, ) BARR, ENTER NET INC., KHALIM MASSOUD, ) JANE DOE, MUSLIMS AGAINST SHARIA ) ) Defendants. )
DEFENDANT PAMELA GELLER’S NOTICE OF REMOVAL
OF FLORIDA STATE COURT LITIGATION
PURSUANT TO 28 U.S.C. §§ 1441 & 1446(a)
***
Erik V. Korzilius, Esq. David Yerushalmi, Esq. Robert Muise, Esq. (Fla. Bar No. 930105) (Pending admission pro hac vice) (Pending admission pro hac vice) Erik V. Korzilius, P.A. LAW OFFICES OF DAVID YERUSHALMI, P.C. THOMAS MORE LAW CENTER 2100 Tamiami Trail South 640 Eastern Parkway 24 Frank Lloyd Wright Drive Suite C Suite 4C P.O. Box 393 Venice, Florida 34293 Brooklyn, New York 11213 Ann Arbor, MI 48106 [email protected] [email protected] [email protected] Tel: (941) 408-8200 Tel: (646) 262-0500 Tel: (734) 827-2001 Fax: (941) 408-0269 Fax: (801) 760-3901 Fax: (734) 930-7160
Attorneys for Defendant Pamela Geller
Dockets.Justia.com Pursuant to 28 U.S.C. §§ 1441 & 1446(a), Defendant Pamela Geller, by and through her
undersigned counsel, hereby files and serves this Notice of Removal of the state civil action
entitled, Bill Warner Private Investigator v. Eric E. Schmidt, Google Inc., Phyllis Barr, Enter
Net Inc., Khalim Massoud, Muslims Against Sharia, and Jane Doe, Case No. 2009 CA 007420
NC, and filed May 1, 2009, in the Circuit Court of the 12th Judicial Circuit of the State of Florida
in and for Sarasota County (“the State Court Litigation”), to the United States District Court of
the Middle District of Florida, Tampa Division.
I. State Court Docket.
Pursuant to Local Rule 4.02(b), Defendant Geller has filed concurrently herewith a true
and correct copy “of all process, pleadings, orders, and other papers or exhibits of every kind,
including depositions, then on file in the state court.” (See the following documents of the State
Court Litigation: Civil Cover Sheet as Exhibit 1 to the Declaration of Erik V. Korzilius, Esq.
attached hereto as Exhibit A (“Korzilius Decl.”); Complaint as Exhibit 2 to Korzilius Decl.; Fee
Shortage Letter as Exhibit 3 to Korzilius Decl.; Service Waiver Request forms [unexecuted] as
Exhibit 4 to Korzilius Decl; “Motion; [sic] Remove Google Inc. and Eric E. Schmidt” as Exhibit
5 to Korzilius Decl.; Amended Complaint as Exhibit 6 to Korzilius Decl.).
II. Brief Statement of Procedural Facts.
A. The Original Complaint.
The State Court Litigation was originally filed on May 1, 2009, by pro se Plaintiff “Bill
Warner Private Investigator.” (See Civil Cover Sheet as Ex. 1 to Korzilius Decl.; Complaint as
Ex. 2 to Korzilius Decl.). The Complaint appears to allege that Defendants Khalim Massoud,
acting through a Web site called Muslims Against Sharia, defamed Plaintiff. The Complaint also
names a fictitious “Jane Doe,” although there are no specific allegations relating to Jane Doe.
Specifically, Count I of the Complaint alleges libel against Defendants Khalim Massoud 1
and Muslims Against Sharia for what Plaintiff claims are defamatory postings on the Internet and appears to name Google Inc. (operating as “Google Blog Spot”) as the Web log (“blog”) service used by Muslims Against Sharia and Enter Net Inc. as the Web hosting service used by Muslims
Against Sharia.1 Although there are no specific allegations against the individual Defendants
Eric E. Schmidt or Phyllis Barr, these two individuals were apparently named in their capacities
as executive officers of Google Inc. and Enter Net Inc., respectively. Count II of the Complaint
alleges libel against Defendants Khalim Massoud and Muslims Against Sharia for allegedly defamatory emails distributed to various media outlets. Finally, Count III seeks an injunction
ordering four separate Web sites, allegedly operated by Defendant Khalim Massoud, shut down.
The Complaint seeks $500,000 in unspecified damages from each of the Defendants.
Further, according to the Complaint’s allegations, there is complete diversity among the named
parties: Eric E. Schmidt and Google Inc. reside in California; Phyllis Barr and Enter Net Inc. reside in Pennsylvania; Khalim Massoud and Muslims Against Sharia reside in Nebraska; and
Plaintiff resides in Florida.
According to the docket of the State Court Action, it appears as though none of the
Defendants have been served. First, there are no returns of service on file. Second, Plaintiff
filed three “Notice of Lawsuit and Request for Waiver of Service of Summons” forms,2 one each
1 Although Count I includes in its title something called “Impersonation,” which also appears as the title of the Complaint generally, there are no specific allegations relating to this claim. 2 See Ex. 4 to Korzilius Decl. The form filed by Plaintiff (form AO 399) is in fact an older federal court form (Plaintiff’s form was revised on “10/95” and supplanted by form AO 398, which was revised “01/09”) provided by the federal courts to comply with Rule 4(d) of the Federal Rules of Civil Procedure (“Rule(s)”). While the Florida Rules of Civil Procedure also provide for a waiver of service alternative, see Fla. R. Civ. P. 1.070(i)(2), one would be hard- pressed to conclude that the use of an outdated federal waiver of service form specifically referencing the federal Rules and time frames applicable to those Rules complies with the Florida rules (e.g., under Rule 4(d), a defendant has 30 days to respond to the request for waiver whereas under the Florida rules, only 20 days). 2
for Google Inc. and Enter Net Inc., and one combined form for both Khalim Massoud and
Muslims Against Sharia. Notwithstanding that Plaintiff certifies the forms were sent to the
Defendants on June 10, 2009, the docket stamp indicates the forms were filed with the court on
June 11, 2009. Not surprisingly, none of the forms are executed by any of the Defendants and
there is no indication in the record that the waiver of service alternative was agreed to by any of
the Defendants. Third, after more than a year and seven months, none of the Defendants have
made an appearance or filed any document with the court. And, finally, on May 10, 2010, more
than a year after filing the lawsuit, Plaintiff filed what he called a “Motion; [sic] Remove Google
Inc and Eric E. Schmidt.” (See Ex. 5 to Korzilius Decl.). This document presumably purports to
dismiss all claims against Google Inc. and Eric E. Schmidt, but it does not indicate that either of
these two named Defendants was actually served or waived service of process.3
B. The Amended Complaint.
On January 10, 2011, Plaintiff filed in the State Court Litigation an Amended Complaint.
(Am. Compl. as Ex. 6 to Korzilius Decl.). The Amended Complaint, however, is an entirely new
complaint, alleging an entirely different defamatory publication published in January 2011, by an
entirely different defendant. Thus, the Amended Complaint does not allege any of the
defamatory allegations referenced in Counts I-III of the original Complaint, and apparently seeks
to “Add Pamela Geller” as a defendant for a publication on Defendant Geller’s blog in January
2011. Specifically, the Amended Complaint alleges that Defendant Geller defamed Plaintiff and
3 Formally, Fla. R. Civ. P. 1.420(a)(1) allows a party to dismiss a claim “without order of court . . . before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment . . . .” It is not clear whether a “Motion; [sic] Remove Google Inc and Eric E. Schmidt” operates as a proper “notice of dismissal.” Further, based upon the unmarked certificate of service attached to this document (neither the “mailed” nor “hand delivered” options were marked as applicable), it is not at all clear that this document was in fact “served.” One thing is for certain: neither the court in the State Court Litigation nor the Clerk of the Court has indicated in the docket that the two Defendants were dismissed. 3
“ruined” his reputation by publishing at Defendant Geller’s Web site a document filed on her
behalf in the United States District Court for the Southern District of Ohio in a different matter
(“the Ohio Litigation”). (Am. Compl. at ¶ 9). Plaintiff’s Amended Complaint seeks $500,000 in
damages from “each Defendant(s) (sic).” (Am. Compl. at first unnumbered paragraph).
While the Amended Complaint does mention Defendant Muslims Against Sharia (Am.
Compl. at ¶¶ 12, 14, and 15), the only allegation that appears to suggest that Muslims Against
Sharia is actually a party to the Amended Complaint is in ¶ 15, where Plaintiff asserts “‘Muslims
Against Sharia’ and Defendant Pamela Geller appear to be one and the same . . . .” The other
named defendants, Eric E. Schmidt, Google Inc., Phyllis Barr, Enter Net Inc., and Khalim
Massoud are not even mentioned in the allegations. Thus, Defendants Eric E. Schmidt, Google
Inc., Phyllis Barr, Enter Net Inc., and Khalim Massoud, while still named in the caption, are, for
all practical purposes, no longer parties to this lawsuit and are not relevant for purposes of
diversity jurisdiction (see infra at § III) or consent to removal (see infra at § V).
III. Federal Jurisdiction.
This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1) insofar as
Plaintiff alleges damages in excess of $75,000 and constructively alleges complete diversity of
citizenship of all of the parties.4
IV. Timeliness of Removal.
Defendant Geller received a copy of the Amended Complaint by FedEx Express® on
January 13, 2011. (See Declaration of Pamela Geller (“Geller Decl.”), attached hereto as Exhibit
B at ¶¶ 3-4). Defendant Geller filed this Notice of Removal in a timely fashion on January 18,
4 Even if one assumes some kind of implied, carry-over, or residual claims against those parties derived from the original Complaint (Eric E. Schmidt, Google Inc., Phyllis Barr, Enter Net Inc., and Khalim Massoud), the allegations of the original Complaint make clear that none of the named Defendants reside in Florida where Plaintiff resides. (See addresses of Defendants listed in Count I of the original Complaint.). 4
2011, which is well within the 30-day time period of 28 U.S.C. § 1446(b).5
Moreover, the one-year rule in the second paragraph of § 1446(b) does not apply here
because the original Complaint, as set forth in § II.A., supra, was patently removable based upon
diversity jurisdiction. Carter v. Frito-Lay, Inc., 144 Fed. Appx. 815, 817 (11th Cir. 2005) (“As for the one-year limitation provision cited in the second paragraph, courts have held that it only applies to cases that were not removable to federal court [as] originally filed. The Eighth Circuit has noted that the real question . . . is whether the last clause of the second paragraph of §
1446(b) modifies only the second paragraph, or applies more broadly to both paragraphs of the provision, and has held that rules of usage and statutory construction lead inevitably to the conclusion that the one-year limitation period modifies only the second paragraph of § 1446(b), and therefore only applies to cases that were not removable to federal court when originally filed.”) (internal quotations marks omitted); Barnes v. Allstate Ins. Co., Case No. 8:10-cv-2434-
T-30MAP, 2010 U.S. Dist. LEXIS 138340 (M.D. Fla. Dec. 28, 2010) (same).
V. Consent to Removal.
Defendant Geller is excused from the judicially-imposed requirement for unanimous consent to removal by all defendants for two distinct reasons. As this court pointed out in Diebel v. S.B. Trucking Co., 262 F. Supp. 2d 1319, 1329 (M.D. Fla. 2003), there are three exceptions to the unanimous consent rule. The first two exceptions manifestly apply here: “There are three exceptions to the unanimity rule; namely: ‘(1) the non-consenting defendants had not been
5 While Defendant Geller received only a copy of the Amended Complaint by FedEx Express®, and has not been formally “served,” Defendant Geller, by her declaration filed concurrently herewith, has waived service of process both under Rule 4(d) and under Fla. R. Civ. P. 1.070(i)(2). See Geller Decl. at ¶ 7, attached hereto as Ex. B). Moreover, as the this court held in North v. Precision Airmotive Corp., 600 F. Supp. 2d 1263, 1270 (M.D. Fla. 2009), “[I]n a completely diverse case such as this one, a non-forum defendant that has not yet been served may remove a state court action to federal court under Section 1441(b) notwithstanding the fact that the plaintiff has already joined - but not yet served - a forum defendant.” 5 served with process at the time the notice of removal was filed; (2) the unconsenting defendants are nominal or formal defendants; or (3) removal is pursuant to § 1441(c).’” Id. (citation omitted).
In this case, no other Defendant has been served, appeared, or in any way participated in the State Court Litigation. Their consent is both unnecessary and impractical. Moreover, as explained in Diebel, “In general ‘nominal or formal parties, being neither necessary nor indispensable, are not required to join in the petition for removal.’” Id. (citations omitted). The court went on to explain in turn what a “necessary” or “indispensable” party was in this context:
“The ultimate test of whether the . . . defendants are . . . indispensable parties . . . is whether in the absence of the [defendant], the Court can enter a final judgment consistent with equity and good conscience which would not be in any way unfair or inequitable to plaintiff.” Id. at 1330
(citations omitted).
In this case, there can be little doubt that the named Defendants in the caption are, to the extent they actually remain in this suit after the filing of the Amended Complaint, nominal or formal defendants. Even assuming Eric E. Schmidt and Google Inc. nominally remain in the suit because Plaintiff has not properly dismissed them,6 there are no actual allegations against any of the Defendants other than Defendant Geller, except some vague claim that Muslims Against
Sharia is a nom de guerre for Defendant Geller. Even assuming this to be true (which in point of fact it is not), that certainly renders Defendant Muslims Against Sharia a nominal or formal defendant to be a placeholder alternative identity for Defendant Geller.
Because the other named Defendants have not been served, and, even if they had, their inclusion in the Amended Complaint is at best nominal or formal, Defendant Geller has no
6 See note 3 supra. 6 obligation to seek their consent to removal.
CONCLUSION
For the foregoing reasons, this Notice of Removal has been filed with this court.
Pursuant to 28 U.S.C. § 1446(d), “[p]romptly after the filing of such notice of removal of a civil action [Defendant Geller] shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of [the Circuit Court of the 12th Judicial Circuit of the State of
Florida in and for Sarasota County], which shall effect removal and the State court shall proceed no further unless and until the case is remanded.”
[Signature page follows.]
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Respectfully submitted,
By: /s/ David Yerushalmi David Yerushalmi, Esq.* LAW OFFICES OF DAVID YERUSHALMI, P.C. P.O.B. 6358 Chandler, Arizona 85246 [email protected] Tel: (646) 262-0500 Fax: (801) 760-3901 *Pending admission pro hac vice
/s/ Robert Muise Robert Muise, Esq.* Thomas More Law Center 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 [email protected] Tel: (734) 827-2001 Fax: (734) 930-7160 *Pending admission pro hac vice
/s/ Erik V. Korzilius Erik V. Korzilius, P.A. (Fla. Bar No. 930105) 2100 Tamiami Trail South Suite C Venice, Florida 34293 [email protected] Tel: (941) 408-8200 Fax: (941) 408-0269
Attorneys for Defendant Pamela Geller
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CERTIFICATE OF SERVICE
I hereby certify that on January 18, 2011, a digital copy of the foregoing was mailed by overnight delivery to the Clerk of the Court. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system.
Parties may access this filing through the Court’s system. I further certify that a copy of the foregoing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically:
Plaintiff:
“Bill Warner Private Investigator” 2100 Constitution Boulevard Sarasota, Florida 34231
Named Defendants:
Khalim Massoud Muslims Against Sharia 8501 W. Dodge Road Omaha, Nebraska 68124
Eric E. Schmidt, CEO Google Inc. 1600 Amphitheatre Parkway Mountain View, California 94043
Phyllis Barr, Vice President Enter Net Inc. 815 North 12th Street Allentown, Pennsylvania 18102
/s/ Erik V. Korzilius Erik V. Korzilius (Fla. Bar No. 930105)
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