UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

*************

MAY’S DISTRIBUTING CO. INC., *

* Civ. Action No. 2:06-CV-702

Plaintiff, *

* Judge Fuller

vs. *

*

TOTAL CONTAINMENT, INC., ET AL *

*

Defendants * JURY TRIAL REQUESTED

*************

DEFENDANTS’ SUR-REPLY IN OPPOSITION TO PLAINTIFF’S MOTION TO 

REMAND

Defendants, Dayco Products, LLC and Mark IV Industries, Ltd. (hereinafter 

“Dayco”), file this brief sur-reply in further opposition to Plaintiff’s Motion to Remand in 

order to clarify contentions made in Plaintiff’s Reply Brief. 

First, Plaintiff cites no paragraph to prove that the four previous complaints 

included all of Dayco’s products over a seven-year period. The omission is telling—none 

of the previous complaints alleged defects in every Dayco product for the period 1990-

1997. The previous complaints only related to the gas station with the allegedly defective 

hose which was replaced in 2002. See Third Am. Compl. at ¶¶18-21.

Second, while Plaintiff contends that Defendants bear the burden to establish 

jurisdiction, Plaintiff does not contest the fact that the amount in controversy and the 

requisite minimal jurisdiction are present here in this case to establish jurisdiction under 

CAFA. Thus, the required elements for federal jurisdiction are present and have been 

Case 2:06-cv-00702-MEF-TFM Document 54 Filed 09/28/2006 Page 1 of 3
unquestionably established. Once Defendant has proved these basic elements, the burden 

shifts back to Plaintiff to demonstrate why jurisdiction should not be present. See Evans v. 

Walter Indus., Inc., 449 F.3d 1159 (11th Cir. 2006).

Third, Plaintiff suggests that the Court should follow the district court cases that 

conclude that a case can only be commenced once for CAFA purposes. Plaintiff does not

address the federal district and Circuit Court cases which hold otherwise, in line with the 

traditional notions that an amended complaint can commence a new suit in certain 

circumstances. 

Finally, Defendants disagree with Plaintiff’s erroneous suggestion that overly broad 

discovery can substitute for proper pleading. Defendants objected to the overly broad 

discovery precisely because it went far beyond the case. It is black letter law that parties 

are allowed to conduct broad discovery, far beyond that which is admissible. See F.R.C.P. 

26(b). However, this far-reaching discovery does not serve to enlarge or amend the 

pleadings. Regardless of the broad or inappropriate discovery sought in this case, the 

previous complaints all involved the system installed in 1998 and removed in 2002. The 

Fourth Amended Complaint adds allegations relating to all Dayco products manufactured 

between 1990 and 1997, far beyond any prior complaint. That Plaintiff sought some 

discovery on other Dayco products does not change the allegations in the complaint.

Case 2:06-cv-00702-MEF-TFM Document 54 Filed 09/28/2006 Page 2 of 3
Respectfully submitted,

/s/ James E. Blazek

JAMES E. BLAZEK (LA 3154)

RICHARD B. EASON (LA 5248)

DONNA M. BORRELLO (LA 16817)

Adams and Reese LLP

4500 One Shell Square

New Orleans, LA 70139

Telephone: (504) 581-3234

Facsimile: (504) 566-0210

jim.blazek@arlaw.com

Attorneys for Defendants, Dayco Products, LLC, 

and Mark IV Industries, Ltd.

OF COUNSEL:

BRIAN MOSHOLDER (MOS-018)

Carpenter, Ingram & Mosholder, LLPO

4121 Carmichael Road, Suite 303

Montgomery, AL 36106

Telephone: (334) 213-5600

bmosholder@carpenterfirm.com

MYRON PENN

Penn & Seaborn, LLC

P. O. Box 688

Clayton, AL 36106

Telephone: (3334) 738-4486

myronpenn28@hotmail.com

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of Court by 

using the CM/ECF system, which will send a notice of electronic filing to the parties and 

counsel who are filing users, and that service was accomplished on any counsel who is not 

a filing user by United States Mail on September 28, 2006.

__/s/ James E. Blazek______________

James E. Blazek

Case 2:06-cv-00702-MEF-TFM Document 54 Filed 09/28/2006 Page 3 of 3