MILLER NASH LLP ATTORNEYS AT LAW

TELEPHONE: (503) 224-5858

3400 U.S. BANCORP TOWER

111 S.W. FIFTH AVENUE

PORTLAND, OREGON 97204-3699

Peter C. Richter

OSB No. 711465

peter.richter@millernash.com

Justin C. Sawyer, P.C.

OSB No. 014057

justin.sawyer@millernash.com

Jonathan H. Singer

OSB No. 105048

jonathan.singer@millernash.com

MILLER NASH LLP

3400 U.S. Bancorp Tower

111 S.W. Fifth Avenue

Portland, Oregon 97204-3699

Telephone: (503) 224-5858

Facsimile: (503) 224-0155

Attorneys for Plaintiff Randy Ritmiller

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

Portland Division

RANDY RITMILLER, for himself and 

derivatively on behalf of Spirit Enterprises

of Oregon, Inc., a nominal defendant,

Plaintiff,

v.

MICHAEL SPICER, and SPIRIT 

ENTERPRISES OF OREGON, INC., 

(D/B/A Stan the Hot Water Man), an 

Oregon corporation,

Defendants.

Case No. 3:14-cv-02011-KI

PLAINTIFF'S MOTION TO REMAND 

PURSUANT TO 28 USC § 1447

ORAL ARGUMENT REQUESTED

EXPEDITED HEARING REQUESTED

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LOCAL RULE 7.1 CERTIFICATION:

The undersigned certifies that the counsel for the parties made a good faith effort 

through a telephone conference to resolve the dispute and have been unable to do so.

MOTION

Seeking to avoid his deposition on December 23, 2014, and a hearing scheduled 

before the Honorable Edward E. Jones tomorrow, Michael Spicer ("Spicer") has removed this 

action, which has been pending in state court since June 2013. Pursuant to 28 USC § 1447(c), 

plaintiff Randy Ritmiller moves to remand this matter to the Multnomah County Circuit Court 

because:

1. There is a "'strong presumption against removal jurisdiction,'" which 

"'means that the defendant always has the burden of establishing that removal is proper,' and that 

the court resolves all ambiguity in favor of remand to the state court." Hunter v. Phillip Morris 

USA, 582 F3d 1039, 1042 (9th Cir 2009) (quoting Gaus v. Miles, Inc., 980 F2d 564, 566 (9th Cir 

1992) (per curiam) (internal quotation marks omitted)).

2. Spicer has mischaracterized the record, ignoring the motion he filed in 

state court on May 22, 2014, which added Spirit Enterprises of Oregon, Inc. (the "Company") as 

a defendant, so that the Company could assert counterclaims against plaintiff Randy Ritmiller

(which it has done). There is no diversity jurisdiction.

3. In addition to asserting counterclaims and engaging in extensive motion 

practice and discovery in state court, Spicer and his counsel committed to deposition dates and a 

date-certain trial date on February 23, 2015. Spicer has thereby waived and should be estopped 

from asserting any purported right of removal. 

4. The one-year window for removal since commencement of this action has 

long expired, and Spicer has provided no allegation of the bad faith necessary to trigger the 

equitable exception under 28 USC § 1446(c). The Notice of Removal is therefore defective and 

untimely.

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5. Spicer did not seek removal within the necessary 30 days after the entry of 

an order on March 7, 2014, which, if diversity has ever been present, existed then. 28 USC 

§ 1446(b)(3). Instead, Spicer filed a motion to add the Company as a defendant and thereby 

destroyed any potential diversity and waived any right of removal.

6. Finally, although any one of the points above warrant remand, the Court 

should also abstain from asserting jurisdiction over this action because it involves a statutory 

claim for minority shareholder oppression that implicates the Oregon state courts' interest in 

overseeing the governance of Oregon companies.

As reflected in Plaintiff’s Memorandum in Opposition to Spirit Enterprises of 

Oregon, Inc.'s Motion to Stay Proceedings,1 Spicer's removal is the latest in a series of evasive 

moves that seek to delay and avoid resolution of this lawsuit, including a hearing tomorrow that 

was set by the Company, depositions scheduled for next week, a hearing on December 29 that 

was set by agreement of all the parties, and trial in February. Ritmiller respectfully asks that this 

Court resolve this motion on an expedited basis. 

In support of the motion to remand, Randy Ritmiller relies on his memorandum in 

support of motion to remand, the Declaration of Justin C. Sawyer ("Sawyer Decl."), and the 

records and files in this action.

MEMORANDUM

I. Ritmiller's Claims.

As summarized in paragraphs 1 through 3 of the First Amended Complaint, this 

action arises out of the discovery by Ritmiller, 49 percent shareholder of the Company, that the 

Company's majority shareholder, Spicer, and his family have improperly taken out of the 

Company hundreds of thousands of dollars in personal expenses, extra shareholder distributions, 

1 A draft of this memorandum is attached as Exhibit 1 to the Declaration of Justin C. Sawyer. 

The Company scheduled an expedited hearing on its motion to stay for tomorrow. Declaration 

of Justin C. Sawyer, ¶ 3, Ex. 2. 

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and "loans" over the last several years. The extra distributions paid to Spicer amounted to 

$124,550 just since 2008. The expenses include, but are not limited to:

1. College tuition for one of Michael Spicer's children;

2. Travel to and shopping in Las Vegas;

3. Travel to and entertainment in Hawaii;

4. Fraternity fees;

5. Cosmetic procedures; and

6. NASCAR experience.

When Ritmiller raised concerns regarding the operation of the Company, Spicer:

1. Fired Ritmiller;

2. Unilaterally removed Ritmiller as a director;

3. Refused and delayed full disclosure of the Company's books and records;

4. Cut off Ritmiller's salary and benefits;

5. Reduced or eliminated distributions to Ritmiller (at a time when the 

Company's gross revenues rose from $2.5 million in 2011 to $2.9 million 

in 2013); and

6. Quadrupled his own salary.

Since June 2013, Ritmiller has been seeking to correct these abuses and to prevent 

further harm to both him and the Company by bringing various claims, including minority 

shareholder oppression under ORS 60.952, which provides for equitable relief, including, but not 

limited to the removal of Spicer as a director; the appointment of an independent custodian; an 

equalization of distributions; an accounting; and a forced sale of Ritmiller's shares.

2

2 See, First Amended Complaint ¶¶ 1-3. 

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II. The Litigation.

This litigation was commenced on June 20, 2013, when Ritmiller filed the 

Original Complaint against Spicer and members of his family based on allegations that "funds of 

Spirit Enterprises [were] being diverted for the personal benefit of Michael Spicer" and his 

family through credit card spending, improper distributions, and improper loans. Sawyer Decl.,

¶ 4, Ex. 3, (Plaintiff's Original Complaint ¶¶ 12-13, 16-18, 21). On December 16, 2013, the 

defendants filed an Answer, Affirmative Defenses and Counterclaims. Sawyer Decl., ¶ 5, Ex. 4. 

On March 7, 2014, an order was entered dismissing all of the defendants, except 

Michael Spicer. Sawyer Decl., ¶ 6, Ex. 5. Rather than filing a Notice of Removal, Spicer filed a 

filed a motion seeking to add the Company as a defendant on May 22, 2014. Sawyer Decl., ¶ 7, 

Ex. 6. The motion was granted, and both the Company and Spicer have since actively asserted 

counterclaims against Ritmiller and sought extensive discovery from him.

3

 Sawyer Decl., ¶¶ 8-

13, Exs. 7-12. 

During September and October, counsel for the parties committed to a datecertain trial date in February and then agreed to participate in a mediation on December 4, 2014. 

Sawyer Decl., ¶¶ 14-15, Ex. 13. Spicer and the Company insisted on holding discovery until the 

mediation, and consequently, a critical condition to Ritmiller's agreement to mediate was the 

commitment of the Company, Spicer, and their counsel to proceed with the following schedule if 

the mediation failed: 

December 12 Remaining discovery exchanged

December 22 Deposition of Randy Ritmiller

3 On June 30, 2014, defendants filed their First Amended Answer, Affirmative Defenses and 

Counterclaims—including permissive counterclaims by the Company against Ritmiller for 

conversion (Second Counterclaim), tortious interference with economic relations (Third 

Counterclaim), breach of contract (Fourth Counterclaim), and replevin (Fifth Counterclaim). At 

that time, Ritmiller was asserting claims against Spicer only. The Company seeks judgments 

against Ritmiller in the amounts of $90,000 (Second and Fourth Counterclaims) and $25,000 

(Third and Fifth Counterclaims), plus pre- and post-judgment interest.

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December 23 Deposition of Michael Spicer

December 29 Hearing on any outstanding discovery issues

January 5-14 Remaining depositions 

February 23 Trial

Sawyer Decl., ¶¶ 15-16, Ex. 13-14.

The mediation failed. But rather than abiding by their scheduling agreement, the 

Company and Spicer have since stonewalled Ritmiller's discovery requests and seek to further 

delay his day in court through an expedited motion to stay that was filed by the Company on 

December 12, 2014, and now this removal. 

III. This Action Should Be Remanded.

"District courts must construe the removal statutes strictly against removal and 

resolve any uncertainty as to removability in favor of remanding the case to state court." Acosta 

v. Direct Merchants Bank, 207 F Supp 2d 1129, 1131 (SD Ca 2002) (citing Takeda v. 

Northwestern Nat'l Life Ins. Co., 765 F2d 815, 818 (9th Cir 1985)). As discussed below, this 

action should be remanded. 

First, this Court should remand this matter under 28 USC § 1447(c) because 

subject matter jurisdiction is lacking. Contrary to the assertions in the Notice of Remand, the 

Company has taken substantial action to advance interests directly adverse to those of Ritmiller, 

including the assertion of counterclaims, a motion to stay his claims, and extensive discovery 

directed at supporting defendants’ counterclaims.4

 The Company and plaintiff Ritmiller are both 

residents of Oregon, and diversity jurisdiction is consequently lacking. 

4

 It is also worth noting that “[i]n actions in which there is more than one defendant, all 

defendants must consent to removal." Anderson v. Kaz, Inc., No. 08-CV-253-BR, 2008 WL 

2477559 (D Or Jun 12, 2008). Although there is an exception to this rule where a nonconsenting party is a nominal defendant, as discussed supra, the Company is not a nominal 

defendant. The Company—which has been an active defendant asserting its own 

counterclaims—did not join the Notice of Removal, and consequently, the Notice is defective. 

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Second, by asserting counterclaims, engaging in motion practice, and serving 

extensive discovery,5 both the Company and Spicer have waived and should be estopped from 

asserting a right of removal now. See, e.g., Acosta v. Direct Merchants Bank, 207 F Supp 2d 

1129, 1132 (SD Ca 2002) (defendant's voluntary cross complaint "intentionally invoked the state 

court's jurisdiction thereby waiving [defendant's] right to remove to federal court.").6 Indeed, 

defendants and their counsel committed to a schedule for discovery, depositions, and trial, and 

Ritmiller relied on that agreement. Defendants and their counsel should be required to abide by 

it. 

Third, a state court action cannot be removed on the basis of diversity jurisdiction 

more than one year after the commencement of the action absent a court's finding of bad faith on 

the part of the plaintiff. 28 USC § 1446(c). The Original Complaint was filed on June 20, 2013, 

nearly 18 months before removal, and there is no allegation of the bad faith necessary to trigger 

the exception. Spicer's Notice of Removal is therefore untimely.

Fourth, where, as here, the case stated by the initial pleading is not removable, "a 

notice of removal may be filed within 30 days after receipt by the defendant * * * of a copy of an 

amended pleading, motion, order or other paper from which it may first be ascertained that the 

case is * * * removable." 28 USC § 1446(b)(3) (emphasis added). If there was ever diversity 

among the parties, it was present on March 7, 2014, when the Multnomah County Circuit Court 

issued an order granting a motion to dismiss all of the claims, except claims asserted against 

Spicer. Instead of seeking removal within that 30-day window, Spicer joined the Company as a

5 On October 15, 2014, the Company propounded 24 broad Requests for Production on Randy 

Ritmiller, including requests for Randy Ritmiller's draft and final personal financial statements, 

his state and federal tax returns, his medical prescription records, and bills for his cellular phone. 

Sawyer Decl., ¶ 10, Ex. 9. 

6

 See also James W. Moore, et al., Moore's Federal Practice, § 107.18[3][a] (waiver of a 

defendant's right to remove occurs through "[p]articipating in state court proceedings, such as 

seeking some form of affirmative relief, when the defendant is not compelled to take the 

action.").

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defendant several months later thereby destroying any purported diversity. Spicer has waived 

and should be estopped from asserting a right of removal now.

Finally, although this action should be remanded based on any one of the points 

described above, Spicer's removal seeks to delay resolution of a state-law claim for minority 

shareholder oppression under ORS 60.952, which entitles Ritmiller to equitable relief, including 

the removal of directors of this Oregon company, the appointment of a custodian to manage it, an 

equalization of distributions, and a forced sale of Ritmiller's shares in the Company. 

The Oregon state courts have an interest in applying this state-law claim and 

overseeing the governance of Oregon companies. The Court should therefore abstain from 

asserting jurisdiction over this matter. See, e.g., Quackenbush v. Allstate Ins. Co., 517 US 706, 

721 (1996) (federal courts can decline to exercise jurisdiction over equitable claims by 

remanding to state court).

For the reasons discussed above, Ritmiller respectfully asks that this motion to

remand be granted. 

DATED this 17th day of December, 2014.

MILLER NASH LLP

/s/Justin C. Sawyer

Peter C. Richter

OSB No. 711465

peter.richter@millernash.com

Justin C. Sawyer, P.C.

OSB No. 014057

justin.sawyer@millernash.com

Jonathan H. Singer

OSB No. 105048

jonathan.singer@millernash.com

Phone: (503) 224-5858

Fax: (503) 224-0155

Attorneys for Plaintiff Randy Ritmiller

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I hereby certify that I served the foregoing plaintiff’s motion to remand pursuant 

to 28 USC § 1447 on:

William F. Martson, Jr.

Ryan M. Bledsoe

Alex Tinker

Tonkon Torp LLP

1600 Pioneer Tower

888 S.W. Fifth Avenue

Portland, Oregon 97204

Fax: (503) 974-8779

E-mail: rick.martson@tonkon.com

 ryan.bledsoe@tonkon.com

 alex.tinker@tonkon.com

Attorneys for Defendant Michael Spicer

Joshua P. Stump

Harrang Long Gary Rudnick P.C.

1001 S.W. Fifth Avenue, 16th Floor

Portland, Oregon 97204

Fax: 503 241-1458

E-mail: joshua.stump@harrang.com

Attorneys for Defendant Spirit 

Enterprises of Oregon, Inc.

by the following indicated method or methods on the date set forth below: 

 CM/ECF system transmission.

DATED this 17th day of December, 2014.

/s/Justin C. Sawyer

Justin C. Sawyer, OSB No. 014057

Of Attorneys for Plaintiff Randy Ritmiller

Page 1 - Certificate of Service

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