IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

LISA ANN ROBERTS, ASSIGNEE

AND JUDGMENT CREDITOR OF

EMPLOYERNOW DEVELOPMENT

COMPANY, LLC

Plaintiff,

v.

TONEY JOE CHIMIENTI AND

AMERICAN FIDELITY ASSURANCE

COMPANY,

Defendants.

CIVIL ACTION NO. 20-159

AMERICAN FIDELITY ASSURANCECOMPANY'S NOTICEOF REMOVAL

Defendant American Fidelity Assurance Company ("American") files its Notice of

Removal to the United States District Court for the Northern District of Texas, Dallas Division,

pursuant to 28 U.S.C. §§ 1332(a), 1441(a) and 1446, based on diversity of citizenship, and

respectfully shows the following:

I. PROCEDURAL BACKGROUND

1. On January 6, 2020, Plaintiff Lisa Ann Roberts, Assignee and Judgment Creditor

of Employernow Development Company, LLC ("Roberts" or "Plaintiff') filed her Original

Petition in a case styled Cause No. 19-853; Lisa Ann Roberts, Assignee and Judgement Creditor

of Employernow Development Company, LLC v. Toney Joe Chimienti and American Fidelity

Assurance Company, pending in the 451' Judicial District Court for Kendall County, Texas.

2. American was served with this lawsuit on January 10, 2020 via service to the

Secretary of State by certified mail return receipt requested. See Exhibit "4".

Case 5:20-cv-00159 Document 1 Filed 02/10/20 Page 1 of 5
3. American files this notice of removal within 30 days of receiving Plaintiff's

Original Petition. See 28 U.S.C. § 1446(b). This Notice of Removal is being filed within one

year of the commencement of this action. See id.

4. All pleadings, process, orders, and other filings in the state court action are

attached to this Notice as required by 28 U.S.C. § 1446(a).

5. Attached hereto are copies of the following documents:

• Exhibit 1: Index of the documents filed in the state court proceeding;

• Exhibit 2: The State Court's Docket Sheet and Case Information Sheet;

• Exhibit 3: Plaintiff's First Amended Petition;

• Exhibit 4: Citation served on American Fidelity Assurance Company;

• Exhibit 5: American Fidelity Assurance Company's Answer; and

• Exhibit 6: Certificate of Interested Parties.

II. BASES FOR REMOVAL

6. Removal is proper based on diversity of citizenship under 28 U.S.C.

§§ 1332(a)(1), 1441(a), and 1446.

A. Plaintiff and Defendants are diverse.

7. Plaintiff is, and was at the time the suit was filed, a resident and a citizen of the

State of Texas. See Plaintiff's First Amended Petition, attached hereto as Exhibit "3" ¶ 2.

8. Defendant American Fidelity Assurance Company is an Oklahoma corporation

with its principal place of business in Oklahoma City, Oklahoma and is therefore a citizen of

Oklahoma for diversity purposes.

Case 5:20-cv-00159 Document 1 Filed 02/10/20 Page 2 of 5
9. Upon information and belief, Defendant Toney Joe Chimienti ("Chimienti") is,

and was at the time the lawsuit was filed, a resident and citizen of the State of California. See

Plaintiff's First Amended Petition, attached hereto as Exhibit "3" ¶ 3.

10. Thus, this lawsuit is between citizens of different states, and there is complete

diversity of citizenship between all parties in this case.

B. The Amount in Controversy Exceeds the Jurisdictional Requirements for Subject

Matter Jurisdiction.

1 1. In determining the amount in controversy, if a plaintiff seeks monetary relief in an

amount that exceeds the minimum jurisdictional amount of $75,000, the defendant can rely on

that demand to meet the jurisdictional requirement for removal. 28 U.S.C. §I446(c)(2); S. W.S

Erectors, Inc. v Infax, Inc. 72 F.3d 489, 493 (5th Cir. 1996). In the petition, the amount in

controversy pled pursuant to Rule 47 exceeds $75,000.

12. Specifically, paragraph 30 of Plaintiff's petition states "Pursuant to Texas Rule of

Civil Procedure 47(c)(5), Plaintiff's damages, without inclusion of attorney's fees and costs,

exceed $1,000,000." Exhibit "3" ¶ 30. Plaintiff sets out his model for calculating his alleged

damages to establish his monetary relief sought in paragraphs 6 through 9 of his petition. Id. This

evidence clearly demonstrates that the amount in controversy in this case exceeds the

jurisdictional requirements.

III. THIS REMOVAL IS PROCEDURALLY CORRECT

13. American was served with this lawsuit on January 10, 2020 via service to the

Secretary of State by certified mail return receipt requested. See Exhibit "4". Thus, American is

filing this Notice within the 30-day time period required by 28 U.S.C. § 1446(b).

Case 5:20-cv-00159 Document 1 Filed 02/10/20 Page 3 of 5
14. Venue is proper in this District and Division under 28 U.S.C. §1446(a) because (i)

this District and Division include the county in which the state action has been pending, and (ii)

a substantial part of the events giving rise to Plaintiff's claims allegedly occurred in this District

and Division.

15. Pursuant to 28 U.S.C. §1446(a), all pleadings, process, orders, and all other filings

in the state court action are attached to this Notice.

16. Promptly after American files this Notice of Removal, written notice of the filing

will be given to Plaintiff pursuant to 28 U.S.C. §1446(d).

17. Promptly after American files this Notice of Removal, a true and correct copy of

same will be filed with the Clerk of the Kendall County District Court pursuant to 28 U.S.C.

§1446(d).

IV. CONCLUSION

18. Based upon the foregoing, the exhibits submitted in support of this removal, and

other documents filed contemporaneously with this Notice of Removal, Defendant American

Fidelity Assurance Company hereby removes this case to this Court for trial and determination.

Respectfully submitted,

THOMPSON, COE, COUSINS & IRONS, LLP

By: /s/ZandraE. Foley

Zandra E. Foley

State Bar No. 24032085

One Riverway, Suite 1400

Houston, Texas 77056

713.403.8210 I phone

713.403.8299 I fax

zfoley@thompsoncoe.com

ATTORNEYS FOR DEFENDANT

AMERICAN FIDELITY ASSURANCE

COMPANY

Case 5:20-cv-00159 Document 1 Filed 02/10/20 Page 4 of 5
CERTIFICATE OFSERVICE

I HEREBY CERTIFY that on February 10, 2020 a true and correct copy of the foregoing

instrument was delivered to all known counsel of record in accordance with the Federal Rules of

Civil Procedure, and any applicable Local Rules, as follows:

J. Patrick Cohoon

LEGER KETHCUM & COHOON, PLLC

179 S. Main Street

Suite 102

Boerne, Texas 78006

pcohoon@lkclawfirm.corn

Bruce C. Tough

Diana Tough

TOUGH LAW FIRM

819 Crossbridge Drive

Spring, Texas 77373

btough@toughlawfirm.com

Attorneys for Plaintiff

/s/ Robert C. McCabe

Robert C. McCabe

Case 5:20-cv-00159 Document 1 Filed 02/10/20 Page 5 of 5