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Sample Nevada Notice of Removal Form

Posted by: on Mon, Jan 05, 2015

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G.
MARK ALBRIGHT ESQUIRE

Nevada
Bar No. 001394

ALBRIGHT
STODDARD WARNICK AND PALMER, P.C.

801 South Rancho Road,
Suite D-4

Las Vegas,
Nevada89106

702-384-7111

gma@albrightstoddard.com

Attorneys
for Defendants Sheila Greenspan and

Sheila
Greenspan Enterprises, Inc. d/b/a

Capital
Resources International

 

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

 

YUMI
SAITO, an individual,

 

Plaintiff,

 

vs.

 

YASUE
FRANKLIN, an individual; RONALD FRANKLIN, an individual; SHEILA GREENSPAN,
individually and d/b/a CAPITAL RESOURCES INTERNATIONAL; SHEILA GREENSPAN
ENTERPRISES, INC., a Florida Corporation d/b/a CAPITAL RESOURCES
INTERNATIONAL; DOES I through X,

 

Defendants.

Case No.:

 

NOTICE OF REMOVAL

 

Pursuant
to 28 U.S.C. § 1332 (Diversity of citizenship jurisdiction) and § 1441 (a)
(Removal based on federal court original jurisdiction), the following
Defendants, Sheila Greenspan, individually and d/b/a Capital Resources
International and Sheila Greenspan Enterprises, Inc., a Florida Corporation
d/b/a Capital Resources International (hereinafter collectively referred to as
“ Defendants”), who have been served with a copy of the Summons and Complaint
in this matter on August 16, 2004, file and serve this Notice of Removal of
this action from the EightH Judicial District in and for the County of Clark,
State of Nevada, to the United States District Court for the District of
Nevada.

 

  1. I.
    The United States District Court,
    Pursuant to Diversity Jurisdiction, Has Original Jurisdiction in This Matter

 

Defendants
request this matter to be removed from the EightH Judicial District for the County of Clark,
State of Nevada,
on the grounds that complete diversity of citizenship exist between the
Plaintiff, Yumi Saito (hereinafter referred to as “Plaintiff”) and each and
every Defendant.  Jurisdiction in this
Court is proper pursuant to 28. U.S.C. § 1332(a), which states:

The district courts shall have original jurisdiction
of all civil actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between

(1)
citizens of different States;

(2)
citizens of a State and citizens or
subjects of a foreign state;

(3)
citizens of different States and in
which citizens or subjects of a foreign state are additional parties; and

(4)
a foreign state, defined in section
1603(a) of this title as plaintiff and citizens of a State or of different
States.

 

28. U.S.C. § 1332(a).

Here, Defendant request for removal in this case is proper
pursuant to subsection (2), “citizens of a State and citizens or subjects of a
foreign state….”  Id.
According to Plaintiff’s Complaint, Plaintiff is a citizen and resident
of Nagoya, Japan.  Defendants are informed and believe that
Defendants Yasue Franklin and Ronald Franklin are citizens of the State of Nevada, residing at 2720 Chokecherry Avenue, Henderson, Nevada.  Defendant Sheila Greenspan is a citizen of
the State of Florida,
residing at 3320 Rosinka Court,
Naples, Florida.  Finally, Defendant Sheila Greenspan
Enterprises, Inc., is a Florida
corporation with its principal place of business at 4888 Davis Boulevard, #172, Naples,
Florida; thereby, establishing
complete diversity in and between each and all of the named defendants and
Plaintiff.

Additionally, Plaintiff’s
Complaint alleges that Plaintiff is due a sum in excess of $330,000.00 pursuant
to a promissory note. The said promissory note was allegedly entered into
between Yasue and Ronald Franklin and the Plaintiff.  The amount alleged to be owed on the
promissory note is well beyond the statutory requirement of $75,000.00 prescribed
by 28 U.S.C. § 1332(a).  Thereby,
establishing original jurisdiction with this Court, and making this case
removable to the United States District Court.

  1. II.
    Removal of This Action is Proper on
    the Grounds that Plaintiff Has Prayed For Relief Under the Federal Racketeer
    Influenced and Corrupt Organizations Act

 

Plaintiff’s Ninth Claim
for Relief is grounded on the civil right to recovery provisions contained in
the federal Racketeer Influenced and Corrupt Organizations Act (hereinafter
referred to as “RICO”).  18. U.S.C.  § 1964(c).[1]  Although RICO provides for a civil right of
action to recover for violation of RICO and states that such a plaintiff, “may
sue therefor in any appropriate United
States district court….” Id.

Complimenting such
language, the Ninth Circuit has held that, “state and federal courts have
concurrent jurisdiction of RICO claims….”
Lou v. Belzberg, 834 F.2d 730, 732 (9th Cir.
1987).  In Lou v. Belzberg the
court was attempting to navigate around the doctrine of derivative jurisdiction,
which effectively acted as a bar to the federal district court’s having subject
matter jurisdiction over RICO actions that were removed from state courts.  Id.
at 734.   This result was contrary to the
language in RICO, allowing Plaintiff’s to commence a civil right of action from
a violation of RICO in the federal district courts.

Despite the Ninth
Circuits holding in Lou v. Belzberg, removal of this case is still
proper, notwithstanding diversity jurisdiction, because of the requisite
interpretation of federal law that this matter requires.  Moreover, derivative jurisdiction is not an
issue in this case. This case involves allegations of fraud and allegations
that Defendants’ conduct violated provisions of RICO.

Additionally, RICO
permits a successful plaintiff to recover three times the damages.  The gravidity of this provision should afford
a defendant, alleged to have violated the criminal provisions of RICO,
specifically, those contained in 18 U.S.C. § 1962, the most suitable venue in
which to present the merits of the defendant’s defense.   In this case, the most suitable venue for
the Defendants to present the merits of their defense to the serious
allegations of RICO violations is in the United States District Court, for the
District of Nevada.

III.
Defendants’ Request for Removal in This Matter is
Timely Pursuant to 28 U.S.C. § 1446(b)

 

On August 3, 2004,
Plaintiff filed a Complaint in the District Court of Nevada, Clark County.  A true and correct copy of Plaintiffs’
Complaint, captioned Yumi Saito, an individual v. Yasue Franklin, an
individual; Ronald Franklin, an individual; Sheila Greenspan, individually and
d/b/a Capital Resources International; Sheila Greenspan Enterprises, Inc. d/b/a
Capital Resources International,
case number A489768, is attached hereto as
Exhibit 1.

Plaintiff first served
the Complaint on Defendants Yasue Franklin and Ronald Franklin on August 6,
2004.  Defendants Sheila Greenspan and
Sheila Greenspan Enterprises, Inc. were subsequently served on August 16, 2004.  True and correct copies of the Affidavits of
Service on Defendants Yasue Franklin and Ronald Franklin are attached hereto as
Exhibit 2.  Defendants, pursuant to 28
U.S.C. § 1446(b), are filing this Notice of Removal within thirty days of
service of Plaintiff’s Complaint, thereby making removal of this action timely
according to 28 U.S.C. § 1446(b).

Additionally, the only
documents filed in this matter are the Complaint and Affidavit’s of Service on
Defendants Yasue Franklin and Ronald Franklin.

Furthermore, Defendants
are filing with the Court within the thirty day period the attached written
consents to removal from the two non-moving Defendants, Yasue Franklin and
Ronald Franklin, attached hereto as Exhibit 3.
Therefore, removal of this action is timely and complete pursuant to the
Ninth Circuits holding in Hewitt v. City of Stanton, 798 F.2d 1230, 1232
(9th Cir. 1986)(holding for removal to be proper, all of the
defendants, except nominal ones, are to join in the removal petition).

IV.
Conclusion

Defendants respectfully request this matter be
removed from the Eighth Judicial District Court in and for the County of Clark,
State of Nevada to United States District Court, for the District of Nevada
pursuant to diversity of citizenship of the parties and on the grounds that
this case involves the interpretation of federal law.  The Notice of Removal in this matter has been
timely filed, according to 28 U.S.C. § 1446(b) and with the consent of all
non-moving Defendants.  Therefore,
removal of this action is proper and this action should proceed before this
Court.

/ / /

/ / /

/ / /

/ / /

/ / /

ALBRIGHT,
STODDARD, WARNICK & PALMER, P.C.

 

 

 

___________________________________

G. MARK ALBRIGHT ESQ.

Nevada Bar No. 001394

801 South Rancho Drive, Suite D-4

Las Vegas, Nevada 89106

702-384-7111

Attorneys for Defendants Sheila Greenspan and
Sheila Greenspan Enterprises, Inc. d/b/a Capital Resources International

 

 

 

 

 


[1]
“Any
person injured in his business or property by reason of a violation of section
1962 of this chapter may sue therefor in any appropriate United States District
Court and shall recover threefold the damages he sustains and the cost of the
suit, including a reasonable attorney’s fee, except that no person may rely
upon any conduct that would have been actionable as fraud in the purchase or
sale of securities to establish a violation of section 1962.”  18 U.S.C. § 1964(c).

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