IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DMSION 

CLELL "JOHN" WINDHAM, III 

Plaintiff 

V. 

§ 

§ 

§ 

§ 

§ 

DANIEL RICHARD, JR., AVIOR § 

LOGISTICS, LLC and HARRISON 0. § 

OLULU, INDMDUALLY AND AS SOLE §

PROPRIETOR OF AVIOR LOGISTICS, § 

LLC § 

Defendants § 

CASE NUMBER 5:20-cv-451

JURY 

DEFENDANTS', DANIEL RICHARD, JR., AVIOR LOGISTICS, LLC, AND 

HARRIZON OLULU, INDIVIDUALLY AND AS SOLE PROPRIETOR OF AVIOR 

LOGISTICS, LLC, NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441(a) 

PLEASE TAKE NOTICE that Defendants, DANIEL RICHARD, JR., AVIOR 

LOGISTICS, LLC, and HARRIZON OLULU, INDIVIDUALLY AND AS SOLE PROPRIETOR 

OF AVIOR LOGISTICS, LLC hereby file this Notice of Removal of Action Under 28 U.S.C. § 

1441(a) to remove to this Court the state court action described below: 

BACKGROUND 

1. Plaintiff is CLELL "JOHN" WINDHAM, III, a citizen of Texas residing in Bexar

County, Texas. 1

2. Defendant, AVIOR LOGISTICS, LLC has its primary place of business in Alabama.

Defendants HARRIZON OLULU and DANIEL RICHARD, JR. are citizens of Alabama. 

3. On or about February 25, 2020 the state action was filed in the 224th Judicial District

Court, Bexar County, Texas under Cause 2020-CI-03791; CLELL "JOHN" WINDHAM, Ill v.

DANIEL RICHARD, JR., AVIOR LOGISTICS, LLC, AND HARRIZON OLULU, INDIVIDUALLY 

1 See Plaintiff's Original Petition attached as Exhibit A. 

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AND AS SOLE PROPRIETOR OF AVIOR LOGISTICS, LLC. Defendants DANIEL RICHARD, 

JR., AVIOR LOGISTICS, LLC, AND HARRlZON OLULU, INDIVIDUALLY AND AS SOLE 

PROPRIETOR OF AVIOR LOGISTICS, LLC herein after "Defendants," file this Notice of 

Removal within thirty days of Defendants receiving notice of Plaintiffs' state court proceeding, as 

required by 28 U.S.C. § 1446 (b). 

4. Plaintiff's Original Petition affirmatively asserts that he is seeking damages within 

the jurisdictional limits of the state court and not expressly limited to less than $75,000.2 

Therefore, Plaintiff's sought after damages appear to be in excess of $75,000 as required for this 

Court to have jurisdiction. 3 

5. Defendants have attached the required state court documents pursuant to 28 U.S.C. 

§ 1446 (a).4 

6. As for venue, venue is proper in this District, the Western District of Texas, San 

Antonio Division, under 28 U.S.C. § 1441 (a) and 28 U.S.C. § 1446 (a) because this District and 

Division embrace the place where the removed action is pending. 

7. Defendants will promptly file a copy of this Notice of Removal with the Clerk of 

the state court where the action is pending. Defendants made a demand for trial by jury in the state 

court action. 

8. There is no named Co-Defendant in this action. Therefore, consent to removal from 

any other defendant is not required in this proceeding. 

2 See Plaintiff's Original Petition attached as Exhibit A. 3 See 28 U.S.C. § 1332 and§ 1441. 4 State Court Docwnents attached as Exhibit B. 

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BASIS FOR REMOVAL 

9. The Federal Court's basic diversity jurisdiction extends to "all civil actions where 

the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, 

and is between ... citizens of different States. "5 As set forth, this Court has original jurisdiction 

over this civil action pursuant 28 U.S.C. § 1332 and the action may therefore be removed to this 

Court pursuant to 28 U.S.C. § 144l(a) because: 

a. It is a civil action between a citizen of a State (Texas) and a corporation of 

(principal place of business) and citizens of a different State (Alabama); and 

b. It is a civil action wherein the amount in controversy exceeds the sum of 

$75,000, exclusive of costs and interest.6 

A. Diversity of Citizenship 

10. A civil case filed in state court may be removed by the defendant to Federal Court 

if the case could have been brought originally in Federal Court. 7 Diversity jurisdiction requires 

complete diversity; every plaintiff must be diverse from every defendant. 8 Defendant was 

informed and believes that Plaintiff is at the time of filing this lawsuit, and still is, a citizen of the 

State of Texas. Defendant, AVIOR LOGISTICS, LLC has its primary place of business in Alabama. 

Defendants HARRIZON OLULU and DANIEL RICHARD, JR. are citizens of Alabama. 

Therefore, there is complete diversity of citizenship between Plaintiffs and Defendants. 

B. Amount in Controversy 

12. Removal is proper when there is complete diversity of citizenship between the true 

5 28 U.S.C. § 1332(a)(l); see e.g., Darden v. Ford Consumer Fin. Co., 200 F.3d 753, 755 (I Ith Cir. 2000). 6 See Plaintiff's Original Petition attached as Exhibit A. 7 28 U.S.C. § 1332(a). 8 28 U.S.C. § 1332; see e.g., Tapscottv. MS Dealer Service Corp., 77 F.3d 1353, 1359 (I Ith Cir.1996) (abrogated on 

other ground by Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (I Ith Cir. 2000) (overruling Tapscott on the issue 

of calculating the amount in controversy in class action suits). 

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parties to the lawsuit and the amount in controversy exceeds Seventy-Five Thousand Dollars 

($75,000) exclusive of costs and interest.9 

13. In De Aguilar v. Boeing Co., 10 the United States Fifth Circuit Court of Appeals held 

that when a defendant removes such a case, the defendant then has the burden to prove that the 

amount in controversy exceeds the jurisdictional amount. 11 The De Aguilar Court went on to hold 

that to remand to state court, the plaintiff must establish as a matter of law that, if successful, it 

would not be able to recover more than the jurisdictional amount. 12 

13. In determining whether the amount in controversy exceeds $75,000, courts must 

consider the full litany of damages that a plaintiff is seeking, including statutory and punitive 

damages. 13 Specifically, the court must consider penalties, statutory damages, and punitive 

damages in calculating the amount in controversy. 14 

16. As applied here, Defendants can meet their burden to prove that the amount in 

controversy in this case exceeds the federal jurisdictional requirement of $75,000 based on the 

language of Plaintiff's Original Petition.15 As discussed above, Plaintiff's Original Petition 

affirmatively asserts that he is seeking damages within the jurisdictional limits of the state court 

and not expressly limited to less than $75,00016 Therefore, the evidence is sufficient for 

Defendants to meet their burden to prove the amount in controversy removal requirement of 

$75,000. 

CONCLUSION 

9 28 U.S.C. § 1332(a). 10 47 F.3d 1404 (5th Cir.1995). 11 De Aguilar v. Boeing Co., 47 F.3d 1404, 1411 (5th Cir. 1995). 

i2 Id. 

13 St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253-55 (5th Cir. 1998). 

14 Id. 

15 See Plaintiff's Original Petition. 

i, Id. 

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17. Based on diversity of citizenship and satisfaction of the amount in controversy 

requirement, removal to Federal Court is proper. 17 Plaintiff is a citizen of the State of Texas and 

Defendants are not citizens of the State of Texas. Diversity of citizenship is clear from the pleadings 

and evidence. 

WHEREFORE PREMISES CONSIDERED, based on the Petition, evidence and the 

diverse citizenships of the proper parties, this Court therefore has original jurisdiction of this action 

under 28 U.S.C. § 1332 and removal of the action to this Court is proper under 28 U.S.C. § 1441 (a). 

17 28 U.S.C. § 1332(a); Darden, 200 F.3d at 755. 

Respectfully submitted, 

GOLDMAN & PETERSON PLLC 

10 I 00 Reunion Place, Suite 800 

San Antonio, Texas 78216 

Telephone: (210) 340-9800 

Telecopier: (210) 340-9888 

*E-Mail: mail@ljglaw.com 

*service by e-mail to this address only 

By: Isl 

LARRY J. GOLDMAN 

"Attorney in Charge" 

Federal Bar No. 341 

State Bar No. 08093450 

Larry@ljglaw.com 

VINCENT P. VASQUEZ 

Federal ID No. 2837841 

State Bar No. 24066237 

Vincent@ljglaw.com 

ATTORNEY FOR DEFENDANTS, DANIEL 

RICHARD, JR., AVIOR LOGISTICS, LLC, AND 

HARRIZON OLULU, INDIVIDUALLY AND AS 

SOLE PROPRIETOR OF AVIOR LOGISTICS 

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CERTIFICATE OF SERVICE 

This is to certify that a true and correct copy of the above and foregoing has been forwarded 

to the following counsel of record in compliance with the Federal Rules of Civil Procedure on this 

9th day of April, 2020. 

Via E-Service 

Mr. Philip G. Bernal 

JANICEKLAW 

1100 NE Loop 410, Suite 600 

San Antonio, TX 78209 

Isl 

LARRY J. GOLDMAN 

VINCENTP.VASQUEZ 

VERIFICATION 

STATE OF TEXAS § 

§ 

COUNTY OF BEXAR § 

BEFORE ME, the undersigned Notary Public, on this day personally appeared LARRY J. 

GOLDMAN, who being by me duly sworn upon his oath, deposed and stated that he is the attorney 

of record for DANIEL RICHARD, JR., AVIOR LOGISTICS, LLC, and HARRIZON OLULU, 

INDIVIDUALLY AND AS SOLE PROPRIETOR OF AVIOR LOGISTICS, LLC, Defendants in 

the above-entitled and numbered cause; that he has read the above NOTICE OF REMOVAL, and 

that the allegations contained therein are within his personal knowledge and are true and correct. 

LARRY J. GOLDMAN, Affiant 

SUBSCRIBED AND SWORN TO BEFORE ME, on this the 9th day of April, 2020, to certify 

which witness my hand and official seal. 

NOTARY PUBLIC 

IN AND FOR THE STATE OF TEXAS 

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