defendant’s, city of corinth, notice of...

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION TODD ANTHONY FOUST § Removed for the District Court Plaintiff, § for the 413’s Judicial District § in Denton County, Texas v. § § CIVIL ACTION NO. 4:18-cv-00815 CITY OF CORINTH AND THE § LAKE CITIES FIRE DEPARTMENT § Defendants. §

DEFENDANT’S, CITY OF CORINTH, NOTICE OF REMOVAL

TO THE HONORABLE UNITED STATES DISTRICT COURT:

Defendant, City of Corinth (“Corinth”), through undersigned Counsel, respectfully files this

Notice of Removal pursuant to 28 U.S.C. § 1446 on the basis that Plaintiff’s, Todd Anthony Foust

(“Plaintiff”), Original Petition invokes Federal-Question Jurisdiction. In support thereof, Corinth

would respectfully show this Honorable Court the following:

A. INTRODUCTION

1. On or about October 17, 2018, Plaintiff commenced an action in the District Court

for the 431st Judicial District in Denton County, Texas, located at 1450E. McKinney Street,

Denton, Texas 76209. A copy of Plaintiffs’ Original Petition”) is attached and marked as “Exhibit

A”

2. Corinth was served with the suit on October 17, 2018. Corinth files this notice of removal

within the 30-day time period required by 28 U.S.C. §1446(b)(1). Bd. of Regents of Univ. of Tex. Sys. v.

Nippon Tel. & Tel. Corp., 478 F.3d 274, 278 (5th Cir. 2007).

3. Pursuant to Local Rule 81 of the Eastern District of Texas, Corinth offers the

following information. Parties in the case are: Plaintiff, Todd Anthony Foust; Defendant, City of

Corinth. The current status of the case: the case is pending in Texas’s 431st Judicial District Court,

Case 4:18-cv-00815-ALM Document 1 Filed 11/15/18 of 5 PageID #: 1

the Plaintiff has filed an Original Petition and Corinth is awaiting a ruling on a Motion to Extend

Time to Answer.

B. BASIS FOR REMOVAL

4. United States District Courts have Original Jurisdiction over this action and

removal is proper because Plaintiff’s suit involves a Federal Question. 28 U.S.C. §§1331, 1441(a);

Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005); Broder v. Cablevision

Sys. Corp., 418 F.3d 187, 194 (2d Cir. 2005); Peters v. Union Pac. R.R., 80 F.3d 257, 260 (8th Cir. 1996).

Plaintiff’s Original Petition explicitly seeks relief under 42 U.S.C.A Sec. 1983, a Federal Statute. Exhibit

A, p. 11, ¶ 37.

5. The Federal Courts have supplemental jurisdiction over Plaintiffs’ state law claims

pursuant to 28 U.S.C. § 1367(a) because Plaintiff’s state and federal law claims arise from the

“same case or controversy.” Claims form the same case or controversy, if they arise out of a

“common nucleus of operative fact.” See, State Nat. Ins. Co. Inc. v. Yates, 391 F.3d 577, 579 (5th

Cir. 2004). Plaintiffs’ state and federal claims arise from a common nucleus of operative fact.

They are based on the same facts. See Exhibit A.

6. Specifically, Plaintiffs assert a state law claim of Whistleblower Retaliation against

Corinth under the Texas Whistleblower Act. Exhibit A, pp. 9-10, ¶¶ 30-33. This claim arises out

of the same case or controversy that forms the basis of the Federal Claims. The United States

District Courts may exercise supplemental jurisdiction over Plaintiffs’ state law claims because

they are so related to Plaintiffs’ federal claims that they form part of the same case or controversy.

28 U.S.C. § 1367. Accordingly, removal of this action in its entirety to Federal Court is proper.

7. All defendants who have been properly joined and served join in or consent to the

removal of this case to federal court. 28 U.S.C. §1446(b)(2)(A); Cook v. Randolph Cty., 573 F.3d

1143, 1150-51 (11th Cir. 2009); Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir. 2008);


Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 201-02 (6th Cir. 2004). Corinth is the only

defendant properly served; and therefore, all defendants consent to removal as required under 42

U.S.C. § 1446.

8. The Lake Cities Fire Department has not been properly served and it has not

appeared. 28 U.S.C. §1446(b)(2)(A); Knight v. Mooring Capital Fund, LLC, 749 F.3d 1180, 1183-

84 (10th Cir. 2014); see Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 201 (6th Cir. 2004).

Therefore, Lake Cities Fire Department’s consent to removal is not required here.

9. Pursuant to 28 U.S.C. §§ 1441(a) and 1446(a), a Defendant desiring to remove any

Civil Action from a State Court shall file the Notice of Removal in the District Court of the United

States for the district and division within which such action is pending. Venue is proper in Eastern

District of Texas because the 431st Judicial District where the removed action has been pending

is located in the Sherman Division of the Eastern District of Texas. Corinth seeks to properly

remove this action to the nearest Federal District Court, the Texas Eastern District Court in Plano,

because it is located within the Eastern District of Texas, Sherman Division.

10. Pursuant to 28 U.S.C. § 1446(a) and Local Rule 81 the following exhibits are

attached to this Notice of Removal: (1) a completed civil cover sheet (Exhibit C); (2) a copy of all

pleadings and answers: Plaintiff’s Original Petition (Exhibit A) and Defendant, City of Corinth,

First Motion to Extend Time (Exhibit B), except discovery material; (3) a complete list of attorneys

involved in the action, including bar numbers, addresses, phone numbers, and parties represented

by them (Exhibit E); (4) a list of all parties, current status of the case, and the name and address

of the court from which the case is being removed (Exhibit E). We have requested a certified

copy of the state court docket sheet from the relevant State Court (Exhibit D). Due to delays on

the part of the State Court, Corinth is unable to obtain the certified state court docket sheet in time


to meet the filing deadline for this Notice of Removal. However, Corinth is working diligently to

acquire the certified state court docket sheet as soon as possible.

11. Defendant will promptly file a copy of this Notice of Removal with the clerk of the 431st

Judicial District Court in Denton County, where the suit has been pending.

C. JURY DEMAND

12. A jury demand was made by Plaintiff in State Court.

D. CONCLUSION

13. Defendant City of Corinth hereby gives notice under 29 U.S.C § 1446 of the

removal of this action from the District Court for the 431st Judicial District in Denton County,

Texas to the United States District Court for the Eastern District of Texas, Sherman Division,

Plano, Texas. Plaintiffs have invoked a federal question by explicitly seeking relief under Federal

Law. For this reason, Corinth asks the Court to remove the suit to Federal District Court of the Eastern

District of Texas in Plano, Texas.

Respectfully submitted, THE LAW OFFICES OF WILLIAM W. KRUEGER III P.C.

__/s William W. Krueger, III ____ WILLIAM W. KRUEGER, III State Bar No. 11740530 Lead Counsel BENJAMIN J. GIBBS State Bar No. 24094421 2097 N. Collins Blvd., Suite 150 Richardson, Texas 75080 214-253-2600 214-253-2626—Facsimile ATTORNEYS FOR DEFENDANT CITY OF CORINTH


CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument has been mailed, telecopied or hand delivered to all attorneys of record, in compliance with Rule 21a of the Texas Rules of Civil Procedure, on this the 16th day of November, 2018.

By:/s/ William W. Krueger___ WILLIAM W. KRUEGER, III


Case 4:18-cv-00815-ALM Document 1-1 Filed 11/15/18 Page 1 of 13 PageID #: 6

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Exhibit A

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Exhibit A

CAUSE NO. 18-8885-431 TODD ANTHONY FOUST § IN THE DISTRICT COURT Plaintiff, § § v. § 431ST JUDICIAL DISTRICT § CITY OF CORINTH AND THE § LAKE CITIES FIRE DEPARTMENT § Defendants. § DENTON COUNTY, TEXAS

DEFENDANT’S, CITY OF CORINTH, FIRST MOTION TO EXTEND TIME TO THE HONORABLE JUDGE OF THIS COURT:

Defendant, City of Corinth, through undersigned counsel, respectfully ask the Court to

grant an additional 14 days to answer or to otherwise respond to Plaintiff’s Original Petition, as

authorized by Texas Rule of Civil Procedure 5.

INTRODUCTION

1. Plaintiff, Todd Anthony Foust (“Plaintiff”), sued Defendant, City of Corinth, for

whistleblower retaliation under Texas Whistleblower Act, Section 554.001 and 42 U.S.C.A

Sec. 1983.

2. Plaintiff has served Plaintiff’s Original Petition on the City of Corinth on or about October

17, 2018. Plaintiff, a former employee of the Lake Cities Fire Department, claims that he was

retaliated against and terminated because he filed complaints regarding alleged violations of

City Ordinances and various other policies by his co-workers and superiors. City of Corinth

is in the process of analyzing Plaintiff’s employment history, the facts pleaded in Plaintiff’s

Original Complaint in light of other facts uncovered during an Internal Investigation, and both


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Exhibit B

the federal and state law claims brought by Plaintiff. City of Corinth seeks to respond as

speedily as possible with strong, meritorious defenses.

BACKGROUND

3. The City of Corinth intends to actively defend against the allegations raised against them

in Plaintiff’s Original Petition. However, at this time, the City of Corinth has been unable to

conduct a sufficient investigation to file responsive pleadings by the current deadline.

4. The City of Corinth was required to Respond by November 12, 2018.

5. The nature of the claims brought by Plaintiff involve a complex set of facts and law. The

City of Corinth has been in the midst of investigating internally to determine the validity of the

facts plead in Plaintiff’s Original Petition and is working diligently to posit meritorious and

appropriate defenses. Since Plaintiff has brought an action under both Texas Law and Federal

Law, the City of Corinth is still in the process of analyzing the complexity of claims and

defenses available to it.

6. Therefore, the City of Corinth respectfully request this Honorable Court to enlarge the

deadline for filing responsive pleadings until November 26, 2018. This is the City of Corinth’s

first such motion.

II. ARGUMENT AND AUTHORITIES

7. A court may grant a party an extension of time to perform an act “for cause shown” when

the party seeks the extension before the deadline to act has expired. Tex. R. Civ. P. 5. The City

of Corinth asks the Court to grant more time to respond to Plaintiff’s Original Petition because


the area of law for the claims and defenses is complex and requires additional research that

cannot be completed before the deadline.

8. First, Plaintiff has claimed retaliation due to his multiple complaints, some of which were

not filed at all and some of which were not filed with the correct authority. Plaintiff’s Petition

invokes, in broad generality and without specific details, multiple City Ordinances that were

allegedly violated. City of Corinth is working diligently to investigate these complaints,

analyzing Defendant’s employment history with the City of Corinth, and researching the City

Ordinances of which Plaintiff has alleged violations of.

9. Second, Plaintiff is seeking relief under both the Texas Whistleblower Act and 42

U.S.C.A Sec. 1983. The combination of state and federal claims further complicates the legal

research and analysis City of Corinth needs to perform in order to respond. The City of Corinth

is working to carefully bring strong, meritorious defenses in its response. The surplus of

research required cannot be completed before the deadline.

10. Finally, Plaintiff has brought an action based on incomplete facts regarding his

employment. Plaintiff’s employment history with the City of Corinth is long and complicated.

The City of Corinth is still working studiously to analyze Plaintiff’s whistleblower claim in

light of a plethora of issues the Plaintiff’s previous supervisors have noted during Plaintiff’s

employment with the City of Corinth.

11. City of Corinth requests an extension of time for the reasons stated in this motion, not

for the purpose of delay.

CONCLUSION


12. The City of Corinth is still in the process of internal investigations regarding Plaintiff’s

complaints and analyzing the law and complete facts to determine the appropriate defenses

available. Due the complexity of facts, the intermingling of state and federal claims, and the

incompleteness of Plaintiff’s statement of facts in his Original Petition, The City of Corinth

respectfully requests a 14-day extension to respond to Plaintiff’s Original Petition.

PRAYER

13. For these reasons, City of Corinth respectfully asks the Court to grant its motion to

extend the time to respond to Plaintiff’s Original Petition until November 26, 2018.

Respectfully submitted, THE LAW OFFICES OF WILLIAM W. KRUEGER III P.C.

__/s William W. Krueger, III ____ WILLIAM W. KRUEGER, III State Bar No. 11740530 Lead Counsel MAVISH BANA State Bar No. 24096653 2097 N. Collins Blvd., Suite 150 Richardson, Texas 75080 214-253-2600 214-253-2626—Facsimile ATTORNEYS FOR CITY OF CORINTH


CERTIFICATE OF CONFERENCE

On November 12, 2018, Defense Counsel for the City of Corinth contacted Plaintiff’s

Counsel by telephone and email. Plaintiff Counsel indicated that Plaintiff is opposed to the

extension. Thus, this motion is submitted as “Opposed.”

__/s William W. Krueger, III ____ WILLIAM W. KRUEGER, III

CERTIFICATE OF SERVICE

I certify that Defendant’s First Motion to Extend Time was served on Plaintiff’s counsel

of record in compliance with the Texas Rules of Civil Procedure, on November 12, 2018.

Via Email: [email protected] Chuck L. Elsey State Bar No. 24001489 Via Email: [email protected] Chad D. Elsey State Bar No. 24001489 Via Email: [email protected] Brittney A. McClinton State Bar No. 24081264 Elsey & Elsey 3212 Long Prairie Road Suite 200 Flower Mound, Texas 75022 Phone: (972) 906-9695 Fax: (972) 906-7998

__/s William W. Krueger, III ____ WILLIAM W. KRUEGER, III


mailto:[email protected]



PROPOSED ORDER GRANTING AGREED MOTION FOR EXTENSION TO FILE ANSWER TO PLAINTIFF’S AMENDED COMPLAINT PAGE 1

CAUSE NO. 18-8885-431 TODD ANTHONY FOUST § IN THE DISTRICT COURT Plaintiff, § § v. § 431ST JUDICIAL DISTRICT § CITY OF CORINTH AND THE § LAKE CITIES FIRE DEPARTMENT § Defendants. § DENTON COUNTY, TEXAS

ORDER Before the court is Defendant’s, City of Corinth, opposed Motion to Extend Time to

respond Plaintiff’s Original Petition filed on November 12, 2018. The court determines that the

motion should be, and is hereby, GRANTED. It is therefore,

ORDERED, ADJUDGED, AND DECREED, that Defendant’s Motion to Extend time is

GRANTED. Accordingly, the deadline for Defendants to file their answer to Plaintiff’s Amended

Complaint is extended to November 26, 2018.

It is so ordered this ______ day of November, 2018.

______________________________ JUDGE PRESIDING



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Exhibit C

1

EXHIBIT E: INFORMATION SHEET

Pursuant to Local Rule 81 of the Eastern District of Texas, Corinth offers the following

information.

1. Parties in the case are: Plaintiff, Todd Anthony Foust; Defendant, City of Corinth.

2. The current status of the case is: pending in State Court, the Plaintiff has filed an

Original Petition and Defendant City of Corinth is awaiting a ruling on a Motion to Extend Time

to answer.

3. Name and address of the State Court is: 431st District Court in Denton County,

Denton County Courts Building, 1450 East McKinney Street, Denton, Texas 76206-4524.

4. Complete list of attorneys involved in the action, including their bar numbers,

addresses, phone numbers, and parties represented by them:

a. Attorneys For Plaintiff Todd Anthony Foust

i. Chuck L. Elsey 1. State Bar No. 24001489 2. Address: 3212 Long Prairie Road, Suite 200, Flower Mound,

Texas 75022 3. Phone: (972) 906-9695

ii. Chad D. Elsey 1. State Bar No. 24001489 2. Address: 3212 Long Prairie Road, Suite 200, Flower Mound,

Texas 75022 3. Phone: (972) 906-9695

iii. Brittney A. McClinton 1. State Bar No. 24081264 2. Address: 3212 Long Prairie Road, Suite 200, Flower Mound,

Texas 75022 3. Phone: (972) 906-9695

b. Attorneys for Defendant City of Corinth i. William E. Krueger, III

1. State Bar No. 11740530 2. Address: 2097 N. Collins Blvd., Suite 150, Richardson, Texas

75080


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Exhibit E

2

3. Phone: 214-253-2600 ii. Ben Gibbs

1. State Bar No. 24094421 2. Address: 2097 N. Collins Blvd., Suite 150, Richardson, Texas

75080 3. Phone: 214-253-2600


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