Roehm v. Wal-Mart Stores, Incorporated

Filing 20

SUPPLEMENTAL BRIEF re 12 MOTION to Remand filed by Wal-Mart Stores, Incorporated. (Attachments: # 1 Index of Exhibits to Supplemental Brief in Response to Plaintiff's Motion to Remand# 2 Exhibit A - Selected Pages of Plaintiff's cellular phone records# 3 Exhibit B - Map displaying location of telephone area codes in Michigan# 4 Exhibit C - Declaration of Karl G. Nelson) (McCulloch, Debra)

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Roehm v. Wal-Mart Stores, Incorporated Doc. 20 Case 2:07-cv-10168-LPZ-RSW Document 20 Filed 05/24/2007 Page 1 of 5 UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JULIE ANN ROEHM, Plaintiff, v. WAL-MART STORES, INC., Defendant. CASE NO. 2:07-cv-10168 Judge Lawrence P. Zatkoff Mag. Judge R. Steven Whalen THE LAW FIRM OF JOHN F. SCHAEFER JOHN F. SCHAEFER, (P-19948) ANDREW RIFKIN, (P-46147) Attorneys for Plaintiff 380 North Old Woodward, Suite 320 Birmingham, Michigan 48009 (248) 642-6665 SOMMERS SCHWARTZ, P.C. SAM G. MORGAN, (P-36694) KEVIN J. STOOPS, (P-64371) Co-Counsel for Plaintiff 2000 Town Center, Suite 900 Southfield, Michigan 48075 (248) 355-0300 DYKEMA GOSSETT PLLC DEBRA M. MCCULLOCH (P-31995) JOSEPH A. RITOK, JR. (P-25472) Attorneys for Defendant 39577 Woodward Avenue, Suite 300 Bloomfield Hills, MI 48304 (248) 203-0785 GIBSON, DUNN & CRUTCHER LLP EUGENE SCALIA KARL G. NELSON DAVID J. DEBOLD (P-39278) Of Counsel for Defendant 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-9500 SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFF'S MOTION TO REMAND Dockets.Justia.com Case 2:07-cv-10168-LPZ-RSW Document 20 Filed 05/24/2007 Page 2 of 5 Defendant Wal-Mart Stores, Inc. ("Wal-Mart") respectfully submits this Supplemental Brief in response to Plaintiff's Motion to Remand pursuant to the parties' Stipulated Order submitted May 23, 2007. On May 17, 2007, Defendant filed its Brief in Response to Plaintiff's Motion to Remand. That same day, Defendant received Plaintiff's Responses to Defendant's Second Request for Production ("Responses"). Among the documents produced by Plaintiff with her Responses were certain telephone records pertaining to Plaintiff's cellular telephone service that are relevant to the Court's analysis of Plaintiff's domicile (copies attached as Exhibit A hereto). By stipulation, the parties agreed that Defendant should be allowed to supplement its Brief in Response to call the Court's attention to the facts reflected in Plaintiff's telephone records. The records produced by Plaintiff demonstrate that she has retained her Michigan cellular phone number and account throughout her employment with Defendant and during the more than five months since her employment ended. (Exhibit A.) These records indicate that Plaintiff's cellular phone number is (248) 346-0602, which reflects an area code in the Detroit area of southeastern Michigan (including Plaintiff's home in Rochester Hills, Michigan).1 The records also reflect that Plaintiff changed her calling plan effective January 26, 2006 nearly two weeks after she had accepted employment in Arkansas with Defendant but she did not change her 1 See Exhibit B for a map displaying Michigan area codes. In addition, the Court may take judicial notice of readily ascertainable facts, such as the geographic location of telephone area codes. See City of Monroe Emples. Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 655 n.1 (6th Cir. 2005) (citing Fed. R. Evid. 201, which provides that a court may take judicial notice of a fact that is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"). 2 Case 2:07-cv-10168-LPZ-RSW Document 20 Filed 05/24/2007 Page 3 of 5 telephone number at that time to reflect her relocation to Arkansas. (Exhibit A at 19.) Moreover, the records reflect that Plaintiff has retained her Michigan telephone number through at least May 19, 2007 more than five months after her employment with Defendant ended and well over a year after Plaintiff contends she established a domicile in Arkansas. (Exhibit A at 1.) Finally, the records reflect that Plaintiff has continued to pay Michigan state taxes and surcharges for her cellular telephone service. (Id.) Several courts have recognized that the location of a party's cellular phone number is indicative of domicile. See Toro v. Martinez, 2006 U.S. Dist. LEXIS 90226, *9 (D.P.R. 2006) (finding that the defendant was domiciled in New Jersey, in part because her "cellular phone number is (856) 308-4680," which is located in an area code in southwestern New Jersey); Slate v. Shell Oil Co., 444 F. Supp. 2d 1210, 1218 (S.D. Ala. 2006) (referring to the continued use of "an Alabama cell phone number" as one of several "objective indicia of domicile"). Accordingly, Plaintiff's retention of her Michigan cellular phone number is yet another objective factor indicating that Plaintiff never intended to remain in Arkansas indefinitely and thus retained her domicile in Michigan, despite her admittedly temporary relocation to Arkansas. Respectfully submitted, DYKEMA GOSSETT PLLC s/Debra M. McCulloch Debra M. McCulloch (P-31995) Attorneys for Defendant 39577 Woodward Avenue, Suite 300 Bloomfield Hills, MI 48304 (248) 203-0786 dmcculloch@dykema.com 3 Case 2:07-cv-10168-LPZ-RSW Document 20 Filed 05/24/2007 Page 4 of 5 GIBSON, DUNN & CRUTCHER LLP s/with consent of Karl G. Nelson Eugene Scalia Karl G. Nelson David J. Debold (P-39278) Of Counsel for Defendant 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-9500 EScalia@gibsondunn.com DATE: May 24, 2007 4 Case 2:07-cv-10168-LPZ-RSW Document 20 Filed 05/24/2007 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on May 24, 2007, I electronically filed a true and correct copy of the foregoing SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFF'S MOTION TO REMAND with the Clerk of the Court using the ECF system which will send notification of such filing to the following: John F. Schaefer (P19948) at bar@lfjfs.com and B. Andrew Rifkin (P46147) at bar@lfjfs.com, Eugene Scalia at EScalia@gibsondunn.com and to Sam Morgan (P36694) smorgan@sommerspc.com. s/Debra M. McCulloch Dykema Gossett PLLC 39577 Woodward Avenue, Suite 300 Bloomfield Hills, MI 48304-5086 (248) 203-0785 E-mail: dmcculloch@dykema.com P31995 100230155_2.DOC 5

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