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).