IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Case No. 

BENJAMIN VALDEZ,

Plaintiff,

v.

APOLLO GROUP, INC., an Arizona corporation, INSIGHT SCHOOLS, INC., an Oregon 

corporation, d/b/a INSIGHT SCHOOL OF COLORADO and INSIGHT SCHOOL COLORADO 

AT JULESBURG, now a subsidiary of Iowa College Acquisition Corp., a Delaware corporation, in 

turn a subsidiary of Kaplan Higher Education Corporation, a Delaware corporation,

Defendants.

NOTICE OF REMOVAL

Defendant Insight Schools, Inc., d/b/a Insight School of Colorado and Insight School 

Colorado at Julesburg, now a subsidiary of Iowa College Acquisition Corp., in turn a subsidiary 

Kaplan Higher Education Corp. (“Insight Schools”), by and through its attorneys, Margaret 

Parnell Hogan and Allison R. Cohn of Littler Mendelson P.C., removes this action to this Court 

from the District Court of Denver County, Colorado. Removal jurisdiction exists pursuant to 28 

U.S.C. § 1332 (diversity of citizenship). In support of this Notice of Removal, Defendant states:

STATE COURT ACTION

1. On August 8, 2011, Plaintiff Benjamin Valdez (“Plaintiff”) filed a Complaint and 

Jury Demand against Apollo Group, Inc. (“Apollo Group”) and Insight Schools in the District 

Court, Denver County, Colorado, entitled Benjamin Valdez v. Apollo Group, Inc., an Arizona 

corporation, Insight Schools, Inc., an Oregon Corporation, d/b/a Insight School of Colorado; 

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and Insight School of Colorado at Julesburg, n/k/a Iowa College Acquisition Corp., an Iowa 

Corporation, a subsidiary of Kaplan Educational Centers, Inc., a Delaware Corporation, Case 

No. 11CV557. A true and correct copy of the Complaint is attached as Exhibit A. A true and 

correct copy of the Summons is attached as Exhibit B. A true and correct copy of the Civil 

Cover Sheet is attached as Exhibit C. 

2. On August 26, 2011, prior to effecting service on Insight Schools, Plaintiff filed 

an Amended Complaint and Jury Demand (“Amended Complaint”) to correct inaccuracies in the 

case caption. The Amended Complaint is entitled Benjamin Valdez v. Apollo Group, Inc., an 

Arizona Corporation, Insight Schools, Inc., an Oregon Corporation, d/b/a Insight School of 

Colorado and Insight School of Colorado at Julesburg, now a subsidiary of Iowa College 

Acquisition Corp., a Delaware Corporation, in turn a subsidiary of Kaplan Higher Education

Corporation, a Delaware Corporation. A true and correct copy of the Amended Complaint is 

attached as Exhibit D. 

3. On August 26, 2011, Apollo Group accepted service of the Summons and 

Complaint and waived further service of the Summons and Amended Complaint pursuant to 

Rule 4 of the Colorado Rules of Civil Procedure. A true and correct copy of Apollo Group’s 

Acceptance and Waiver of Service is attached as Exhibit E. A true and correct copy of counsel 

for Apollo Group’s Entry of Appearance is attached as Exhibit F. 

4. On September 2, 2011, Insight Schools accepted service of process and waived 

further service of the Summons and Complaint. A true and correct copy of Apollo Group’s 

Acceptance and Waiver of Service is attached as Exhibit G. 

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5. This Notice of Removal is filed within 30 days of the date of service on Insight 

Schools, as required by 28 U.S.C. § 1446(b).

6. No proceedings have taken place in the District Court, Denver County, Colorado.

7. This action is a civil action brought by a former employee of Insight Schools for 

wrongful termination in violation of public policy and breach of contract (Am. Compl. ¶¶ 15). 

DIVERSITY JURISDICTION

8. This Court has jurisdiction over this case because the parties are of completely 

diverse citizenship.

9. Plaintiff is a resident of Denver, Colorado. (See Am. Compl. ¶ 1.) As such, 

Plaintiff is a Colorado citizen.

10. Apollo Group is an Arizona corporation with its principal place of business in 

Phoenix, Arizona. See Printout from Arizona Secretary of State Website, attached hereto as 

Exhibit H.

11. Insight Schools, Inc. is an Oregon corporation with its principal place of business 

in Portland, Oregon. See Declaration of Peter Schwartz (“Schwartz Decl.”), ¶ 3, attached hereto 

as Exhibit I.

12. Iowa College Acquisition Corp. is a Delaware corporation with its principal place 

of business in Chicago, Illinois. See id. ¶ 4.

13. Kaplan Higher Education Corporation is a Delaware corporation with its principal 

place of business in Chicago, Illinois. See id.

14. Accordingly, complete diversity of citizenship exists.

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15. The amount in controversy exceeds the jurisdictional minimum for diversity 

jurisdiction within the meaning of 28 U.S.C. § 1332(a), as interpreted by Woodmen of the World 

Life Ins. Society v. Manganaro, 342 F.3d 1213, 1217 (10th Cir. 2003) (diversity jurisdiction is 

proper where it “is not legally certain that the claim is less than the jurisdictional amount”).

16. In McPhail v. Deere & Co., 529 F.3d 947 (10th Cir. 2008), the Tenth Circuit 

applied the Woodmen of the World Life Insurance Society holding to a case in which the plaintiff 

did not allege any particular sum in her prayer for relief. Recognizing that a plaintiff may not 

destroy diversity jurisdiction by failing to plead a specific sum, the Tenth Circuit held that a 

defendant seeking removal must “prove jurisdictional facts by a ‘preponderance of the evidence’ 

such that the amount in controversy may exceed $75,000.” Id. at 953 (emphasis added). These 

jurisdictional facts may include, among other things, “an estimate of the potential damages from 

the allegations in the complaint,” plaintiff’s settlement demands, plaintiff’s discovery responses, 

and other external evidence demonstrating how much it would cost to satisfy the plaintiff’s 

demands. Id. at 956. Applying that rule to the instant facts, the Tenth Circuit found that the 

defendant met its burden because the plaintiff sought “actual damages, punitive damages . . . , 

plus pre and post judgment interest, costs, attorney fees and such other and further relief which 

the Court deems appropriate.” Id. at 956. The appellate court also considered the parties 

settlement correspondence, which could be read to indicate that plaintiff was seeking more than 

$75,000. Id. at 957.

17. Similar to the McPhail case, the Amended Complaint does not contain a 

numerical damage calculation or prayer. However, a reasonable person could conclude that 

Plaintiff is seeking damages in an amount greater than the $75,000 jurisdictional amount. 

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18. Insight Schools’ good faith belief that Plaintiff is seeking damages in excess of 

$75,000 is based on a reading of the Complaint, including Plaintiff’s allegations that: 

15. Mr. Valdez’ discharge by Insight was wrongful and in 

violation of the clearly stated public policies of the State of 

Colorado, and in breach of its contract with him. 

16. As a result of the termination, Mr. Valdez become 

unemployed and his reputation as an educator was diminished. 

Subsequent employment will not pay the salary, benefits and bonus 

that he would have received at Insight and he has been financially 

damages according.

WHEREFORE, plaintiff Benjamin Valdez seeks damages against 

the defendants in an amount to be determined by a jury, and 

judgment for costs and such other legal and equitable relief as is

provided for by law.

Am. Compl. at 4. 

19. Accordingly, if successful in this lawsuit, Plaintiff will obtain both economic 

damages from December 22, 2010 through trial and non-economic damages. See Genova v. 

Longs Peak Emergency Physicians, P.C., 72 P.3d 454, 460 (Colo. Ct. App. 2003) (approving of 

jury instruction in a wrongful discharge/public policy case which permitted the jury to award 

economic damages and non-economic damages).

20. “Economic damages for wrongful discharge are limited to back pay, loss of

future pay, loss of benefits, and related economic losses proximately resulting from the 

discharge.” Genova, 72 P.3d at 460. 

21. Here, Plaintiff earned an annual salary of $76,000, with bonus potential. He also 

received a variety of health and welfare benefits. See Schwartz Decl. ¶ 5 & Ex. 1 (signed offer 

letter confirming Plaintiff’s annual salary). He alleges that he is unemployed. Am. Compl. ¶ 16. 

Based on these facts, if Plaintiff succeeds on his wrongful discharge claim, it is highly possible 

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that he will recover back and front pay damages in excess of $75,000. See McPhail, 529 F.3d at 

955 (holding that a defendant might support diversity jurisdiction by attaching a copy of the 

contract, valued at more than $75,000 to the notice of removal).

22. Plaintiff may also recover non-economic damages. Under Colorado law, noneconomic damages are capped at $500,000, well above the jurisdictional minimum. See C.R.S. § 

13-21-102.5(3)(a) (capping non-medical malpractice, non-economic, civil damages at $250,000; 

except when the court finds justification by clear and convincing evidence to raise the cap to 

$500,000). 

23. Moreover, correspondence between Plaintiff’s counsel, Bruce G. Smith, and 

Insight Schools demonstrates that Plaintiff is seeking damages in an amount greater than the 

$75,000 jurisdictional amount. See McPhail, 529 F.3d at 956 (“[D]ocuments that demonstrate 

plaintiff’s own estimation of its claim are a proper means of supporting the allegations in the 

notice of removal, even though they cannot be used to support the ultimate amount of liability.”)

Specifically, on February 23, 2011, Mr. Smith sent a letter to Keith Oelrich, President of Insight 

Schools, stating the Plaintiff is entitled to economic and non-economic damages for his wrongful 

discharge. 

Mr. Valdez’ annual base with Insight was $76,000, with approximately $21,280 

value in benefits and almost certain bonus potential of $15,200. Because he was 

fired at the end of December, his ability to mitigate his losses for the balance of 

the economic year is limited. More importantly, he will not have the benefit of 

the salary differential Insight paid relative to his alternative prospects, primarily in 

the public education sector. He estimates his economic loss at over $250,000 

through the next five years. Moreover, his quickly terminated tenure at Insight 

provides a hugely negative feature on his resume. While Insight will, we assume, 

provide no information to prospective employers as a reason for separation, the 

fact remains his departure creates a black mark. Needless to say, his loss of 

immediate income has imposed a huge hardship and emotional stress on himself 

and his wife, who have two children in high school.

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In sum, we are confident Mr. Valdez has a legally viable discharge claim. He has 

authorized us to negotiation a resolution of his claims if terms can be reached 

quickly and with mutual releases. Given his anticipated losses and damages, 

Mr. Valdez has authorized a settlement of $150,000.00.

See Schwartz Decl. ¶ 6 & Ex. 2 (emphasis added). 

24. In further support, Plaintiff stated in his Civil Cover Sheet—a pleading filed in the 

State Court Case—that he was seeking more than $100,000 in his lawsuit. See Ex. C. See 

Valdez v. Byers, No. 09-cv-00764-CMA-CBS, 2009 U.S. Dist. LEXIS 46086, at *6 (D. Colo. 

May 20, 2009) (noting that, while not dispositive, the Civil Cover Sheet is evidence to be 

considered in evaluating whether the amount in controversy is met). 

25. Accordingly, this lawsuit is one that may be removed to this Court by Insight 

Schools, pursuant to the provisions of 28 U.S.C. §§ 1441 and 1446, because this Court has 

jurisdiction over this matter pursuant to 28 U.S.C. § 1332. 

26. Counsel for Insight Schools has conferred with counsel for Apollo Group, James

D. Kilroy, regarding removal of this action. Apollo Group consents to removal of this action to 

federal court. See Apollo Group, Inc.’s Notice of Consent, attached hereto as Exhibit J.

VENUE

27. The District Court, Denver County, Colorado lies within the District of Colorado. 

Accordingly, this is the proper Court to receive this removed action.

STATE COURT TO BE NOTIFIED

28. Pursuant to 28 U.S.C. § 1446(d), Insight Schools will file, on this same date, a 

Notice To State Court, in which the State Court will be notified of the removal of this action to 

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this Court. Copies of this Notice of Removal will also be served on Plaintiff and Defendant 

Apollo Group.

THEREFORE, having fulfilled all statutory requirements, Insight Schools respectfully 

removes the instant action now pending in the District Court of the County of Denver, Colorado, 

and requests that this Court assume full jurisdiction over the matter as provided by law and 

permit this action to proceed before it. 

Dated: September 21, 2011 Respectfully submitted,

s/ Margaret Parnell Hogan

Margaret Parnell Hogan

Allison R. Cohn

Littler Mendelson, PC

1200 17th Street, Suite 1000

Denver, CO 80202

Telephone: 303.629.6200

Facsimile: 303.629.0200

ATTORNEYS FOR INSIGHT SCHOOLS, 

INC., D/B/A INSIGHT SCHOOL OF 

COLORADO AND INSIGHT SCHOOL 

COLORADO AT JULESBURG; IOWA 

COLLEGE ACQUISITION CORP.; AND

KAPLAN HIGHER EDUCATION 

CORPORATION

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CERTIFICATE OF SERVICE

I hereby certify that on this 21st day of September 2011, a true and correct copy of the 

foregoing NOTICE OF REMOVAL was mailed via first class U.S. mail to the following. The 

duly signed original is on file at the office of Littler Mendelson, P.C.

Bruce G. Smith, Esq.

Darling Milligan Smith & Lesch, PC

1331 17th Street, Suite 800

Denver, CO 80202

James Dennis Kilroy, Esq.

Snell & Wilmer LLP

1200 17th St., Suite 1900

Denver, CO 80202

s/Peggy P. Quines

Peggy P. Quines

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