Migliori v. Merritt

Filing 1

igliori v. Merritt

Doc. 1

J OSEPH MIGLIORI, Plaintiff, vs.

N THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO W ESTERN DIVISION (TOLEDO) ) ) ) ) )

Case No.: Judge:

M ICROSOFT CORPORATION,

) ) and ) ) JOHN DOE ) D (UNKNOW N MANUFACTURER OF A ) OEFECTIVE POWER SUPPLY, CORD ) R BATTERY), ) ) Defendants. ) N P OTICE OF REMOVAL LEASE TAKE NOTICE that Defendant Microsoft Corporation ("Microsoft") P hereby provides notice that it removes this action from the Lucas County Common Dleas Court to the United States District Court for the Northern District of Ohio, W estern M ivision (Toledo). In support thereof, Microsoft respectfully states as follows:

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Dockets.Justia.com

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The removed case is a civil action filed on April 3, 2008, in the Court of

ommons Pleas, Lucas County, Ohio, styled Joseph Migliori v. Jo Ann Merritt aka Jo Ann Clagg et al., Case No. CI-200803134-00, and concerns a house fire in Lucas County, Ohio. c 2. The amount in controversy exceeds $75,000, exclusive of interest and

osts. 3 fact, Plaintiff alleges in the Complaint that his damages exceed $750,000. In i . Plaintiff is and was a citizen of the State of Ohio when this action was filed

tn state court, at the time of removal, and at all other times throughout the pendency of his case. t 4. Defendant Microsoft is and was a corporation formed under the laws of

w e State of Washington, with its principal place of business in the State of W ashington, h hen this action was filed in state court, at the time of removal, and at all other times throughout the pendency of this case. J 5. Migliori failed to ever effectuate service on Defendant Jo Ann Merritt aka

O Ann Clagg within the six months provided under Ohio Rule of Civil Procedure 4(E). o n March 19, 2009, the state court dismissed all claims against Defendant Jo Ann Merritt 6 Jo Ann Clagg. aka . The only other remaining party is a "John Doe" defendant, whose

citizenship is irrelevant for removal purposes. See 28 U.S.C. � 1441(a) ("For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names s hall be disregarded.").

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Accordingly, as of March 19, 2009, there is federal subject matter

jurisdiction over this case based on the amount in controversy and the complete d iversity of citizenship. See 28 U.S.C. � 1332(a). R 8. Removal is timely under 28 U.S.C. � 1446(b), because the Notice of

c emoval is filed within thirty (30) days of when it first became ascertainable that the ase is removable. In addition, less than one (1) year has lapsed since this action was originally filed in state court. 9 . Venue is proper in this Court under 28 U.S.C. � 1441(a), because Lucas

County is served by the Northern District of Ohio, Western Division, Toledo. C 10. The written notice required by 28 U.S.C. � 1446(d) is being filed with the

lerk of the Common Pleas Court for Lucas County, Ohio, and served on Guy Saglioccolo, attorney for Plaintiff in this matter. 1 1. Copies of all process, pleadings, orders and other papers on file in the

state court action are attached as Exhibit A. See 28 U.S.C. � 1446(a). a W HEREFORE, Defendant Microsoft respectfully requests that the state court

Cction now pending against it in the Lucas County Court of Common Pleas, Case No. I-200803134-00, proceed in this Court as a matter properly removed. Respectfully submitted, /s/ Gregory A. Harrison G regory A. Harrison (0029814) DINSMORE & SHOHL LLP 2 1900 Chemed Center 55 East Fifth Street T Cincinnati, Ohio 45202 Fel: [phone] Eax: [phone] mail: [e-mail] A ttorney for Defendant, Microsoft Corporation 7 3

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ERTIFICATE OF SERVICE his is to certify that on this 31st day of March, 2009, the foregoing was

lectronically filed via CM/ECF and was served upon counsel for Plaintiff, by first class, U.S. mail, postage prepaid, on this same date. / G uy Saglioccolo T 4231 Monroe Street oledo, OH 43606 1
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s/ Gregory A. Harrison

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