Ortiz v. Menu Foods, Inc. et al

Filing 9

MOTION to Remand to State Court by Yvonne Ortiz. (Attachments: # 1 Memorandum in Support of Motion# 2 COS)(Grande, Thomas)

Ortiz v. Menu Foods, Inc. et al

Doc. 9

Case 1:07-cv-00323-DAE-LEK

Document 9

Filed 07/12/2007

Page 1 of 4

DAVIS LEVIN LIVINGSTON GRANDE THOMAS R. GRANDE 3954 851 Fort Street, Suite 400 Honolulu, Hawaii 96813 Telephone: [phone] Facsimile: [phone] Email: [e-mail] EMILY A. GARDNER 6891 Attorney at Law Dillingham Transportation Building 735 Bishop Street, Suite 402 Honolulu, Hawaii 96813 Telephone: [phone] Facsimile: (808)-540-0201 Email: [e-mail] Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII YVONNE ORTIZ, individually and on behalf of all other similarly situated persons, Plaintiff, v. MENU FOODS, INC., a New Jersey Corporation; MENU FOODS HOLDINGS, INC., a Delaware Corporation, MENU FOODS INCOME FUND, an unincorporated Canadian business; DOE ENTITIES and INDIVIDUALS 1- 100, Defendants. Civil No. CV07-00323 DAE LEK (Class Action) NOTICE OF PLAINTIFF'S MOTION FOR REMAND; PLAINTIFF'S MOTION FOR REMAND; MEMORANDUM IN SUPPORT OF MOTION; CERTIFICATE OF SERVICE HEARING SET: Date: Time: Judge:

Dockets.Justia.com

Case 1:07-cv-00323-DAE-LEK

Document 9

Filed 07/12/2007

Page 2 of 4

NOTICE OF PLAINTIFF'S MOTION FOR REMAND TO: Chad P. Love Barbara J. Kirschenbaum Love & Kirschenbaum 1164 Bishop Street, Ste. 1105 Honolulu, Hawaii 96813 NOTICE IS HEREBY GIVEN that the above-entitled motion shall come for hearing before the Honorable __________________, Judge of the above entitled Court, in ________ courtroom in the Prince Jonah Kuhio Kalanianaole Federal Building, 300 Ala Moana Boulevard, Honolulu, Hawaii 96850, at _____ __.m, on ___________________, 2007, or as soon thereafter as counsel be heard. DATED: Honolulu, Hawaii, July 12, 2007. /s/ Thomas R. Grande THOMAS R. GRANDE EMILY A. GARDNER Attorneys for Plaintiff

2

Case 1:07-cv-00323-DAE-LEK

Document 9

Filed 07/12/2007

Page 3 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII YVONNE ORTIZ, individually and on behalf of all other similarly situated persons, Plaintiff, v. MENU FOODS, INC., a New Jersey Corporation; MENU FOODS HOLDINGS, INC., a Delaware CORPORATION, MENU FOODS INCOME FUND, an unincorporated Canadian business; DOE ENTITIES and INDIVIDUALS 1- 100, Defendants. Civil No. CV07-00323 DAE LEK (Class Action) PLAINTIFF'S MOTION FOR REMAND

PLAINTIFF'S MOTION FOR REMAND Plaintiff above named moves pursuant to Federal Rules of Civil Procedure 7, Local Rule 7.2 and 28 USC 1447 for remand of this action to state court. Under the Class Action Fairness Act (CAFA) and Lowdermilk v. U.S. Bank National Ass'n, 479 F.3d 994 (9th Circuit, 2007), Defendant Menu1 has failed to prove to a "legal certainty" that the requirements for original jurisdiction in federal courts have been met. Specifically, Defendant Menu has failed to introduce any evidence of: (1) class size or (2) class damages to verify that damages in this action exceed $5 million. Defendant Menu has instead only offered the court conjecture and speculation in specific violation of the requirements of Lowerdermilk. Because of Defendant Menu's failure to

1

At the time of filing the removal petition, only Defendant Menu Foods, Inc. had been served with the complaint. At the time of filing this motion, Defendant Menu Foods Holdings, Inc. has also been served with the complaint.

Case 1:07-cv-00323-DAE-LEK

Document 9

Filed 07/12/2007

Page 4 of 4

meet its burden, Plaintiff respectfully requests that the Court remand this case to Hawaii circuit court. This motion is based upon the attached memorandum and all the pleadings and filings in this case. DATED: Honolulu, Hawaii, July 12, 2007. /s/ Thomas R. Grande THOMAS R. GRANDE EMILY A. GARDNER Attorneys for Plaintiff

2