UNITED STATES DISTRICT coum 

NORTHERN DISTRICT OF FLORIDA 

TALLAHASSEE DIVISION 

STATE OF FLORIDA, ex rel, 

ZOLTAN BARATI, 

Plaintiffs, 

MOTOROLA, INC., A Foreign 

For Profit Corporation, and 

MORPHOTRAK, INC., A Foreign 

For Profit Corporation, 

Defendants. 

Case No.: 4:10cv316-RHNCS 

PLAINTIFF'S MOTION FOR REMAND, REQUEST TO WITIHHOLD RULINGS, AND 

TO TOLL TIME PERIODS, PENDING COURT'S DECISION REGARDING FEDERAL 

COURT JURISDICTION, REMOVAL AND REMAND 1'0 STATE COURT 

COMES NOW ex re1 Zoltan Barati, Relator and Plaintiff in the above styled case (herein 

also referred to as "Plaintiff' or "Relator"), by and through his undersigned counsel, and hereby 

asserts there is no federal court jurisdiction in the above styled case and moves this Honorable 

Court to remand the said case to the Circuit Court of the Second Judicial Circuit In and For Leon 

County, Florida (herein also referred to as "state court"), and with the exception of matters 

relating to federal court jurisdiction, removal and remand, to withhold all rulings and to toll all 

time periods the Plaintiff may have pursuant to the Fed. R. Civ. P., N.D. Fla. Loc. R., and 

relevant Court Orders, pending the Court's ruling regarding federal court jurisdiction, removal 

and remand in the present case, and states: 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 1 of 16
I. The Presence of The State of Florida As A Real Party In Interest In the Subject 

Lawsuit Precludes Diversity Jurisdiction And Removal To Federal Court 

1. Notwithstanding the Florida Attorney General's decision to not intervene in the 

Plaintiffs Florida False Claims Act qui tam action (Fla. Stat. $ $ 68 .O8 1 - 68.09) at this time, the 

State of Florida is nevertheless a "real party in interest" in this case. 

2. Because the State of Florida is a real party in interest, diversity jurisdiction 

pursuant to 28 U.S.C. $ 1332 does not exist as a matter of law. Absent diversity jurisdiction, 

removal to federal court pursuant 28 U.S.C. $5 1441 and 1446 is not authorized as this case does 

not involve a case or controversy under the U.S. Constitution, treaty, federal statute or otherwise 

present a federal question, and should therefore, be remanded to state court. 

11. The Defendants' Failure To Timely Demonstrate Unanimity Regarding Removal 

Precludes Their Right To Remove The Subject Case To Federal Court 

3. Plaintiff served Defendants Motorola Inc. ("Motorola") and MorphoTrak, Inc. 

("MorphoTrak") with a Summons and copies of the Complaint, including Exhibits, on July 2, 

2010, as stated in the "Notice of Return of Service" filed by Plaintiff in state court on July 8, 

20 10 (Doc. 19-3, composite). 

4. On July 27, 2010, Defendant Motorola filed a "Notice of Removal" pursuant to 

28 U.S.C. $5 1441 and 1446 (albeit defective), asserting diversity jurisdiction under 28 U.S.C. 

$1332. 

5. While the Plaintiffs case was pending in state court, Defendant MorphoTrak 

requested, and Plaintiff agreed, to extend Defendant MorphoTrak's time for filing a response to 

Plaintiffs Complaint until August 9, 2010. Plaintiffs counsel does not recall discussing with 

Defendant MorphoTrak's counsel the need for filing any kind of "stipulated motion" confirming 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 2 of 16
the agreed upon extension, and is certain counsel did not discuss removal to U.S. District Court, 

much less an extension of time for doing so. 

6. While the subject lawsuit was pending in state court, Defendant Motorola 

requested, and Plaintiff agreed, to extend Defendant Motorola's time for filing a response to 

Plaintiffs Complaint pending in state court, until August 20, 2010. Plaintiffs counsel does not 

recall discussing with Defendant Motorola's counsel the need for filing any kind of "stipulated 

motion" confirming the agreed upon extension, which appears to be supported by the fact 

Defendant Motorola did not file any kind of "stipulated motion" in state court seeking 

confirming the parties' agreement. Similarly, Plaintiffs counsel and Defendant Motorola's 

counsel never discussed Defendant Motorola filing a Motion seeking the U.S. District Court's 

"Approval of Stipulation Extending Time to File Response to Complaint." 

7. Prior to August 2, 2010, copies of the documents Defendant Motorola 

electronically filed in U.S. District Court regarding the subject case were provided to Plaintiffs 

counsel by regular U.S. Mail. Plaintiffs counsel did not learn of Defendant Motorola's "Motion 

for Approval of Stipulation Extending Time to File Response to Complaint" (Doc. 3) seeking 

federal court confirmation of the parties' previously agreed upon extension, until the U.S. 

District Court entered an Order granting the said motion on August 2,201 0. (Doc. 18) 

8. As stated in Defendant Motorola's "Motion for Approval of Stipulation Extending 

Time to File Response to Complaint" (Doc. 3), counsel for Motorola informed Plaintiffs counsel 

Defendant Motorola anticipated pursuing removal of the subject case to U.S. District Court. 

Plaintiffs counsel informed Motorola's counsel that Plaintiff opposed removal of the Plaintiffs 

lawsuit to U.S. District Court, and questioned Motorola's basis for asserting federal court 

jurisdiction. Counsel for Defendant Motorola acknowledged furfher review regarding removal 

3 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 3 of 16
and federal court jurisdiction may be in order, and in no way suggested Defendant Motorola 

would promptly file its "Notice of Removal" following counsels' telephone conference; contrary 

to any implication otherwise in Defendant Motorola's "Motion For Approval of Stipulation 

Extending Response To Complaint." 

9. Defendant MorphoTrak did not file a "Notice of Removal" or a "Notice of 

Consent To Removal" within the 30-day period following service of a Summons and a copy of 

Plaintiffs Complaint, and as of this date has not yet filed a "Notice of Consent to Removal." 

10. Because Defendant MorphoTrack failed to file a timely "Notice of Removal" or 

"Notice of Consent To Removal," the Defendants have failed to timely demonstrate unanimity in 

their desire to remove the subject case to federal court, and therefore, are now precluded from 

removing the subject case to U.S. District Court. 

111. Request to Stay Ruling on Defendant MorphoTrak's Motion to Dismiss And To Toll 

Plaintiff's Time Periods To Respond To Defendants' Motions And The Court's Initial 

Scheduling Order Pending Court's Rulings On Federal Jurisdiction, Removal and Remand 

11. Based on the relevant statutes, appellate case law and decisions of other U.S. 

District Courts faced with factually similar cases, "Plaintiffs Notice To Court Regarding Federal 

Court Jurisdiction" (Doc. 25), and this "Motion for Remand" appear to be well-founded. 

12. Should Plaintiff prevail in its Motion for Remand based on a lack of federal court 

jurisdiction, prior rulings by the U.S. District Court substantively impacting the Plaintiffs claims 

may be rendered void. 

13. Plaintiff respectfully suggests that except for matters relating to federal court 

jurisdiction, removal and remand, this Honorable Court should withhold rulings and toll all time 

periods Plaintiff has to respond to Defendants' motions (including Defendant MorphoTrak's 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 4 of 16
ending Motion to Dismiss) and the Court's "Initial Scheduling Order," until the Court has 

entered it rulings relating to federal court jurisdiction, removal and remand. 

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REMAND 

COMES NOW ex rel Zoltan Barati by and through his undersigned counsel and files this 

"Memorandum Of Law" in support of Plaintiffs assertion this case should be remanded to the 

Circuit Court of the Second Judicial Circuit In and For Leon County, Florida, as there is no 

federal court jurisdiction, and states: 

Introduction 

In its "Notice of Removal" (Doc. 1) Defendant, Motorola stakes the following in support 

of its assertion of "complete diversity of citizenship" in the subject lawsuit for purposes of 

federal court jurisdiction pursuant to Title 28 U.S.C. Section 1332: 

The Plaintiff alleges that the State of Florida is a party to the action although on 

information and belief the State of Florida has declined to intervene in the action. 

Zoltan Barati, the Relator, is a citizen of California. Complaint at T/ 12. 

Defendant Motorola has its principal place of business in the State of Illinois. See 

Complaint at 7 13. Defendant MorphoTrak, Inc. is a foreign for profit corporation 

and wholly-owned subsidiary of Sagem Securite, a French corporation 

headquartered in Paris, France. See Complaint at T/ 16. 

Defendant Motorola's focus on the fact the State of Florida is technically not a party to 

the subject lawsuit (at least for the present) due to the Florida Attorney General's failure to 

intervene at this time, is entirely misplaced. Moreover, Defendant MorphoTrak has failed to file 

a timely "Notice of Consent" to the subject removal. The State of Florida's status as a "real 

party in interest," as well as the Defendants' failure to timely demonstrate unanimity regarding 

their desire to remove the subject case to federal court, require remand of the Plaintiffs lawsuit 

to the Circuit Court of the Second Judicial Circuit In and For Leon County, Florida. 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 5 of 16
I. The State of Florida's Status As A "Real Party In Interest" 

Precludes Federal Jurisdiction Based On Diversity 

1. Presented with facts similar to those in the present case involving a defendant's 

removal of a state qui tam action filed in New Mexico State Court pursuant to New Mexico's 

"Fraud Against Taxpayers Act" (NMSA 8544-9-1 to 44)' the United States District Court for the 

District of New Mexico, relying on long-established federal appellate court authority, held "the 

presence of a state or state agency as a party to a lawsuit precludes ilny possibility that diversity 

jurisdiction will exist; it is settled law that neither a state nor an arm of a state is a 'citizen' of 

any state, for purposes of the diversity-jurisdiction statute." New Mexico, ex re1 National 

Education Assn. of New Mexico, Inc. v. Austin Capital Management Ltd., 671 F.Supp. 2d 1248 

(D.N.M., 2009), citing Moor v. Alameda County, 411 U.S. 693, (1973), wherein the United 

States Supreme Court held "[tlhere is no question that a State is not a 'citizen' for purposes of 

diversity jurisdiction. That proposition has been established at least since this Court's decision in 

Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482, 487, 15 S.Ct. 192, 194, 39 L.Ed. 23 1 

(1 894)" 

2. U.S. District Courts located in other states having state qui tam statutes have 

consistently held that even if a state declines to intervene in a state qui tam or similar action 

brought on behalf of a state, diversity jurisdiction is still precluded if the state is a real party in 

interest. New Mexico, ex re1 National Education Assn. of New Mexico, Inc. v. Austin Capital 

Management Ltd., 67 1 F.Supp. 2d 1248 (D.N.M., 2009); State of Alabama ex re1 Galanso v. Star 

Service & Petroleum Co., Inc., 616 FSupp. 429 (S.D. Ala. 1985). The Supreme Court of the 

United States has defined a real party in interest as "an actor with a substantive right whose 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 6 of 16
interests may be represented in litigation by another . . . who generally benefits from the action's 

final outcome." United States ex re1 Eisenstein, 129 S.Ct. 2230, 2235 (2009). 

3. The State of Florida has a significant financial interest in the present case as it is 

entitled to receive 70% - 75% of all amounts recovered (which include three (3) times the 

amount of overpayments the Defendants' received as a result of fraud or gross negligence, fines 

and penalties). Moreover, the Florida Attorney General, who may seek intervention at any time 

despite having previously declined to intervene, remains on the on the certificate of service of all 

documents filed in the action, and may seek to voluntarily dismiss the action at any time 

notwithstanding the objections of the person initiating the action. Finally, Florida's Chief 

Financial Officer, through the Florida Department of Financial Services, may intervene at any 

time on its own behalf as a matter of right. See Florida False Claims Act, 55 68.081 - 68.09, 

Florida Statutes. Accordingly, the State of Florida is very much a real party in interest. 

4. Plaintiff does not anticipate Defendants will challenge FDLE's status as an "armof-the-state," as the test for "arm-of-the-state" status asks whethler a judgment against the 

particular entity would be payable by the state, and then examines the following additional 

factors: (1) the characterization of the governmental unit under state law; (2) the guidance and 

control exercised by the state over the governmental unit; (3) the degree of state funding 

received; and (4) the governmental unit's ability to issue bonds and levy taxes on its own behalf. 

New Mexico, ex re1 National Education Assn. ofNew Mexico, Inc. ak 1252 (citing Sturdevant v. 

Paulsen, 21 8 F.3d 1 160, 1 165-66 (10th Cir.2000). 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 7 of 16
5. Article IV, section 4(g) of the Florida Constitution, places FDLE under the joint 

control of Florida's Governor (as chair), Chief Financial Officer, Attorney General, and 

Commissioner of Agriculture. Moreover, as the State of Florida's primary statewide law 

enforcement agency, the vast percentage of FDLE's annual operating budget is provided through 

appropriations approved by the Florida Legislature. Finally, any judlgment against FDLE would 

certainly be paid by the State of Florida. 

11. Defendants' Failure To Timely Demonstrate Unanimity Regarding Removal Precludes 

Their Right To Remove The Subject Case To Fedleral Court 

6. As previously stated, each Defendant was served with a Summons and a copy of 

the Plaintiffs Complaint on July 2, 2010. While the subject lawsuit was pending in the Circuit 

Court of the Second Judicial Circuit In and For Leon County, Florida, and before the deadline for 

filing a response to the Plaintiffs Complaint (July 22, 2010), attorneys for each Defendant 

contacted Plaintiffs counsel on a different occasion (first MorphoTrak's counsel followed by 

Motorola's counsel several days later) requesting an extension of time in which to file their 

respective client's response to the Plaintiffs Complaint. Plaintiffs counsel agreed to extend the 

deadline for filing a response to Plaintiffs Complaint as requested by each Defendant; August 9, 

201 0, as requested by Defendant MorphoTrack, and August 20,201 0, as requested by Defendant 

Motorola. Although without impact either way, it should be noted that in seeking extensions for 

their respective clients regarding the deadline for filing a response to Plaintiffs Complaint, 

neither Defendant MorphoTrak's counsel nor Defendant Motorola's counsel discussed with 

Plaintiffs counsel, or mentioned in any way, the possibility of an extension regarding the 

deadline for filing a "Notice of Removal" or a "Consent To Notice of Removal." 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 8 of 16
7. Title 28 U.S.C. 5 1446 sets forth the procedure for removing a state court case to 

federal court. Section 1446(a) of Title 28 provides "[a] defendant or defendants desiring to 

remove any civil action . . . fkom a State court shall file in the district court of the United States 

for the district and division within which such action is pending a notice of removal signed 

pursuant to Rule 11 of the Federal Rules of Civil Procedure . . . ." [Bold added]. Section 

1446(b) of Title 28 states "[tlhe notice of removal of a civil action or proceeding shall be filed 

within thirty days after the receipt by the defendant, through service or otherwise, of a copy 

of the initial pleading setting forth the claim for relief upon which such action or proceeding is 

based . . . ." [Bold added] 

8. Defendant Motorola filed a flawed "Notice of Removal" on July 27, 2010 (Doc. 

I), which Plaintiffs counsel received several days later by regular U.S. ~ai1.l The "Notice of 

Removal" (Doc. 1) filed by Defendant Motorola in no way refers to Defendant MorphoTrak 

having joined or otherwise consented to Defendant Motorola's "Notice of Removal." In fact, the 

"WHEREFORE" clause of Defendant Motorola's "Notice of Removal" (Doc. 1) states 

"Defendant Motorola respectfully requests that the referenced action now pending against it 

in the Circuit Court of the Second Judicial Circuit in and for Leon C!ounty, Florida, be removed 

therefrom to this Court." [Bold added] Moreover, Defendant Motorola's "Notice of Removal" 

(Doc. 1) refers to attached Exhibits A (omitted) and B, Defendant Motorola's Summons and 

The "Notice of Removal" Defendant Motorola filed on July 27, 20 10 (Doc. 1) was defective as it failed to include 

an "Exhibit A" as referenced in the said "Notice." On August 3, 2010, more than 30 days after being served the 

Summons and copy of Plaintiffs Complaint, Defendant Motorola filed a "Notice of Filing State Court Summons" 

(Doc. 17) having attached to it a copy of the Summons Plaintiff caused to be serve~d on Defendant Motorola on July 

2, 2010. Although the Clerk's docket entry refers to the said "Notice of Filing State Court Summons" (Doc. 17) as 

an "Amendment to 1 Notice of Removal," Defendant Motorola's "Notice of Filing State Court Sumnions" (Doc. 17) 

refers in no way to its "Notice of Removal" (Doc. I), nor does it purport in any manner to be an "Amendment." 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 9 of 16
copy of Plaintiffs Complaint respectively, constituting "copies of all process, pleadings and 

orders served upon this defendant [Motorola] on this action." [Bold added] 

9. "Defendant MorphoTrak Inc's Notice of Filing Motion For Extension of 

Response Deadline Previously Pending In State Court" (Doc. 22), filed on August 6, 2010, was 

the first document filed by Defendant MorphoTrak following Defendant Motorola's faulty 

"Notice of Removal." The "Notice of Filing Motion For Extension of Response Deadline 

Previously Pending In State Court" filed by Defendant MorphoTrak on August 6, 2010 (Doc. 

22), in no way states Defendant MorphoTrak's desire or consent to re;moval of the subject case to 

federal court. Moreover, even if Defendant MorphoTrak's "Notice of Filing Motion For 

Extension of Response Deadline Previously Pending In State Court" did imply Defendant 

MorphoTrak's notice of its desire or consent to remove the subject calse to federal court (which it 

does not), such notice is untimely as it was not filed until thirty-four (34) days after Defendant 

MorphoTrack was served with a Summons and copy of Plaintiffs Complaint. 

10. A Defendant must file its "Notice of Removal" within thirty (30) days of service. 

Additionally, all Defendants must consent to removal within the 30-day time period. The 

Eleventh Circuit Court of Appeal has long held "the law is well settled that in cases involving 

multiple defendants, all defendants must consent to the removal of a case to federal court." 

Russell Corporation v. American Home Assurance Co., 264 F.3d 1040, 1049 (I lth Cir. 2001) 

(citing Chicago, R.I. & P. Ry. Co., 178 U.S. at 247-48; see also In re Managed Care Litigation, 

unreported opinion 2009 WL 4 13 5 12 (S.D.Fla., 2009)). 

11. Should Defendants attempt to argue the extension MorphoTrak requested and 

received from the Plaintiff, while the subject case was pending in the Circuit Court of the Second 

Judicial Circuit In and For Leon County, Florida, regarding Defendant MorphoTrak's 20-day 

10 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 10 of 16
deadline for filing its response to the Plaintiffs Complaint also extended Defendant 

MorphoTrak's 30-day deadline for filing its "Notice of Consent to Removal," such argument 

would be without merit, and contrary to the Eleventh Circuit Court of Appeal's long standing 

position that "[flederal courts are courts of limited jurisdiction and there is a presumption against 

the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be 

resolved in favor of remand." Russell Corporation v. American Home Assurance Co., 264 F.3d 

1040, 1049 (1 1 th Cir. 200 1) (citing, Burns v. Windsor Ins. Co. 3 1 F.3d 1092, 10% (1 1" Cir. 

2004)). 

12. Any attempt by the Defendants to assert Plaintiff has waived in any way his 

objections to Defendant MorphoTrak's failure to file a timely "Notice of Removal" or "Notice of 

Consent to Removal" based on the Plaintiffs conduct since Defendant Motorola filed its faulty 

"Notice of Removal" would be baseless. In declaring a Plaintips post-removal stipulation 

granting Defendants a 10-day extension in which to file a response to the Plaintiffs Complaint in 

no way constituted a waiver of the 30-day limitation on removal to federal court, the U.S. 

District Court for the Northern District of Illinois stated: * 

[tlhe type of post-removal conduct that constitutes a waiver of the right to remand 

has been described as ". . . affirmative conduct or unequivocal assent of a sort which 

would render it offensive to fundamental principles of fairness to remand . . ." 

Ortiz v. General Motors Acceptance Corporation, Inc., 5 83 F.Supp. 526 (N.D.11. 1 984) (citing 

Maybruck v. Haim, 290 F.Supp. 721 (S.D.N.Y. 1968)). 

13. Because Defendant MorphoTrack failed to file a timely "Notice of Removal" or 

"Notice of Consent To Removal," the Defendants have failed to timely demonstrate unanimity in 

their desire to remove the subject case to federal court and are thereby precluded fiom removal to 

U.S. District Court, rendering remand to the Circuit Court of the Second Judicial Circuit In and 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 11 of 16
For Leon County, Florida, appropriate. "Like all rules governing removal, this unanimity 

requirement must be strictly interpreted and enforced because of the significant federalism 

concerns arising in the context of federal removal jurisdiction." Russell Corporation v. 

American Home Assurance Co., 264 F.3d 1040, 1 044 (1 1 th Cir. 200 1). 

111. The Plaintiff's State Whistleblower Claims In Counts I1 And I11 Are Inextricably 

Linked To The Plaintiffs Florida False Claims Act Qui Tam Claims In Count I 

Accordingly 

All Of The Claims In The Plaintiff's Complaint Should Be Remanded 

14. The case of Moore v. Abbott Laboratories, Inc., 900 F.Supp. 26 (S.D.Miss. 1995), 

involved a state anti-trust action as well as an "unfair and deceptive trade practices claim" by the 

Mississippi Attorney General on behalf of the State of Mississippi and parens patriae on behalf 

of the citizens of Mississippi, relating to certain infant formula products manufactured and 

distributed by the defendant corporations, all of whom were domiciled and headquartered in 

states other than Mississippi. In addition to the Mississippi Attorney General, other plaintiffs in 

Abbott included class representatives, represented by private attorneys bringing state class 

actions alleging various Mississippi state law violations on behalf of Mississippi consumers 

adversely impacted by the defendant corporations' anti-competitive and deceptive conduct. The 

case was filed in Mississippi state court, and the defendant corporations promptly removed all 

claims by all parties to U.S. District Court. After determining the State of Mississippi was a 

"real party in interest," and rejecting the defendant corporations' assertions the case involved 

federal law claims "artfully pleaded" by the Mississippi Attorney General as purely state law 

claims, the U.S. District Court remanded all claims and all parties back to Mississippi state court 

as the State of Mississippi had no citizenship for purposes of establishing diversity jurisdiction 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 12 of 16
and the case did not involve a claim under the U.S. Constitution, federal statute or other federal 

question. 

15. Having examined at length the issue of whether the various Mississippi state law 

claims of the plaintiff Mississippi class representatives should also be remanded to Mississippi 

state court when the U.S. District Court lacked diversity jurisdiction over the State of Mississippi 

as a real party in interest, the U.S. District Court for the Southern District of Mississippi held that 

the defendant corporations must bear the burden of showing the claims for which diversity 

jurisdiction is not prohibited are "separate and independent" and should not be remanded to state 

court with the rest of the action. Abbott at 29 and 32. 

16. The Abbot Court specifically held the state law claims brought by the class 

representatives must also be remanded to Mississippi state court as they arose from the same set 

of facts as the Mississippi Attorney General's claims and were not "separate and independent" 

claims, citing the United States Supreme Court's position in American Fire & Casualty Co. c. 

Finn, 71 S. Ct. 534, 540 (1951), which held "where there is a single wrong to plaintiff, for which 

relief is sought, arising from an interlocked series of transactions, there is no separate and 

independent claim or cause of action." Abbott at 32. 

17. In the present case, neither Defendant MorphoTrak nor Defendant Motorola can 

show the claims in Counts I1 and I11 of Plaintiffs Complaint are "separate and independent" of 

the claims in Count I, as the claims in all three counts arose from the same conduct by the 

Defendants, and are inextricably linked. 

18. Because of the State of Florida's status as a "real party in interest," as well as the 

Defendants' failure to timely demonstrate unanimity regarding their desire to remove the subject 

case to federal court, coupled with the fact this case does not involve a claim or right arising 

13 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 13 of 16
under the U.S. Constitution, treaties, laws of the United States or a federal question, federal 

jurisdiction does not exist in this case. Accordingly, this entire case, including the state 

whstleblower claims in Counts I1 and 111, should be remanded to the Circuit Court of the Second 

Judicial Circuit In and For Leon County, Florida, as Counts I and I1 arise from the same 

interlocking facts as the cause of action set forth in Count I. 

WHEREFORE, Plaintiff respectllly requests this Honorable Court enter an order 

remanding the above captioned case to the Circuit Court of the Second Judicial Circuit In and 

For Leon County, Florida, and except for matters relating to federal court jurisdiction, removal 

and remand, withhold rulings and toll all time periods Plaintiff has to respond to Defendants' 

motions (including MorphoTrak's pending Motion to Dismiss) and the Court's "Initial 

Scheduling Order," until the Court has entered its rulings relating to federal court jurisdiction, 

removal and remand, and to grant such further relief as the Court d.eems just and proper under 

the circumstances. 

Respectllly submitted this /&day of August, 201 0. 

MOYE LAW FIRM 

527 East Park Avenue 

Tallahassee, Florida 323 0 1 

(850) 224-~0~fi (6693) Voice 

(850) 222-~0~1~ (6693) Facsimile 

DAVID W. MOYE 1v 

Fla. Bar No: 0782350 

TRACY P. MOYE 

Fla. Bar No. 07,82361 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 14 of 16
CERTIFICATE OF N.D. Fla. R. 7.1(B) CONFERENCE: AND SERVICE 

N.D. Fla. R. 7.1(B) CONFERENCE 

I HEREBY CERTIFY that I have conferred with counsel for the opposing parties in a 

good faith effort to resolve by agreement the issues raised in this Motion pursuant to N.D. Fla. 

Loc. R. 7.1 (B), as set forth below, and report to this Honorable Court the Defendants' respective 

positions regarding the Plaintiffs request for remand, stay of rulings, and tolling of time periods: 

Remand the case back to the Circuit Court of the Second Judicial Circuit In and For 

Leon County, Florida: 

Defendant MorphoTrak - AGREES 

Defendant Motorola - DISAGREES 

Stay ruling on any Motions filed by the Defendants until the Court decides whether or 

not there is federal court jurisdiction for this case and whether or not to remand the case 

to the Circuit Court of the Second Judicial Circuit In and For Leon County, Florida: 

Defendant MorphoTrak - AGREES 

Defendant Motorola - AGREES 

Tolling time period(s) for filing a response to any motion and complying with the 

Court's Initial Scheduling Order until the Court decides whether or not there is federal 

court jurisdiction and whether not to remand this case to the Circuit Court of the Second 

Judicial Court In and For Leon County, Florida. 

Defendant MorphoTrak - AGREES with tolling response to Initial Scheduling Order, 

DISAGREES with Plaintiff not filing a response to pending 

Motion To Dismiss Counts I and 11. 

Defendant Motorola - AGREES 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on this /@day of August, 2010, a true and correct copy of the 

foregoing has been electronically filed with the Court via CMIECF, which will send a notice of 

electronic filing to: Elizabeth L. Bevington and Kevin W. Cox, Holland & Knight, LLP, P.O. 

Box 810 Tallahassee, Florida, 32302; Brian Newman and Brandice Dickson, Pennington, 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 15 of 16
Moore, Wilkinson, Bell & Dunbar, 2 15 S. Monroe Street, Suite 200, Tallahassee, Florida 32301 ; 

and J. Mark Kraus, Department of Legal Affairs, 400 South Monroe Street, #PL-01, 

Tallahassee, Florida 323 99. 

DAVID W. MOT 

Fla. Bar No: 078:2350 

TRACY P. MOYE 

Fla. Bar No. 0781236 1 

Case 4:10-cv-00316-RH-WCS Document 26 Filed 08/14/10 Page 16 of 16