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Karen Vaughan McManus 

Application for Pro Hac Vice Admission 

 to be filed 

FEDERAL EXPRESS CORPORATION 

Legal Department - Litigation 

Building B, Third Floor 

3620 Hacks Cross Road 

Memphis, Tennessee 38125 

(901) 434-8320 

(901) 434-4523 fax 

kvmcmanus@fedex.com

Attorney for Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

KIMBERLY PRIESTLEY, 

Plaintiff, 

v. 

FEDERAL EXPRESS CORPORATION 

SHORT TERM DISABILITY PLAN, 

FEDERAL EXPRESS CORPORATION, 

and AETNA LIFE INSURANCE 

COMPANY, 

Defendants. 

Case No. ________________________

DEFENDANTS’ 

NOTICE OF REMOVAL 

 Defendants Federal Express Corporation Short Term Disability Plan (“STD 

Plan”), Federal Express Corporation (“FedEx”), and Aetna Life Insurance 

Company (“Aetna”), by and through their undersigned counsel, and pursuant to 28 

U.S.C. §§ 1331, 1332, 1441, and 1446, hereby file this Notice of Removal in the 

above-styled action. 

Case 2:15-cv-02290-SRB Document 1 Filed 11/12/15 Page 1 of 11
 

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I. The State Court Action

 On or about October 21, 2015, Plaintiff Kimberly Priestley filed the present 

lawsuit against Defendants STD Plan, FedEx, and Aetna in the Superior Court for 

Maricopa County, Arizona, Case No. CV2015-054356 (“State Court Action”), 

alleging breach of contract and unpaid wages in violation of A.R.S. § 23-355. 

Plaintiff seeks remedies in the form of unpaid wages and/or benefits under the 

STD Plan, the Federal Express Corporation Long Term Disability Plan (“LTD 

Plan”), and other FedEx benefits plans. (Complaint at ¶¶ 28-29, 34-36; p. 8 ¶ B) 

In addition, Plaintiff seeks to recover treble damages and compensatory damages 

under A.R.S. § 23-255, and her attorneys’ fees. (Complaint at ¶¶ 36, 44-45; pp. 8-

9, ¶¶ D-E) 

 Verified copies of all pleadings, process, and orders served in the State 

Court Action on Defendants are attached hereto as Exhibit A. 

II. Complete diversity exists between Plaintiff and Defendants.

A. Plaintiff is a citizen of Arizona.

 Plaintiff is a citizen and resident of Maricopa County, Arizona. (Complaint 

¶ 3) 

B. Defendants are citizens of Delaware, Tennessee, and 

Connecticut. 

 The Federal Express Corporation Short Term Disability Plan (“STD Plan”) 

is an employee welfare benefit plan administered by Federal Express Corporation. 

(Exhibit B: Declaration of Tamara K. Turner, dated November 12, 2015 (“Turner 

Case 2:15-cv-02290-SRB Document 1 Filed 11/12/15 Page 2 of 11
 

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Dec.”), ¶¶ 4, 6) Federal Express Corporation is incorporated in the State of 

Delaware and maintains its world headquarters and principal place of business in 

Tennessee. (Exhibit C: Declaration of Shahram A. Eslami, dated November 6, 

2015 (“Eslami Dec.”), ¶ 4) The majority of Federal Express Corporation’s highlevel officers work at its world headquarters in Tennessee, and most of the 

executive and administrative functions for FedEx’s U.S.-based operations is 

performed in Tennessee. (Id. ¶ 5) 

 Aetna Life Insurance Company, Inc. (“Aetna”) is the Claims Paying 

Administrator for the STD Plan. (Ex. B: Turner Dec. ¶ 8) Aetna is incorporated 

and maintains a principal place of business in Connecticut. (Exhibit D:

Declaration of Susan L. Cotter, dated November 9, 2015 (“Cotter Dec.”) ¶ 4) 

Aetna’s officers direct, control, and coordinate Aetna’s business activities in 

Connecticut. (Id. ¶ 5) 

 For purposes of diversity, a corporation is a citizen of both its state of 

incorporation and the state where it has its principal place of business. See 28 

U.S.C. § 1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 1186 

(2010)(“we conclude that the phrase ‘principal place of business’ refers to the 

place where the corporation’s high-level officers direct, control, and coordinate the 

corporation’s activities”) Accordingly, Defendants are – and were at the time of 

the filing of the Complaint – citizens of Delaware, Tennessee, and Connecticut. 

 Since Defendants conduct business throughout the United States and the 

world, they do not perform a “substantial predominance” of business operations in 

Case 2:15-cv-02290-SRB Document 1 Filed 11/12/15 Page 3 of 11
 

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any one state. (Ex. B: Turner Dec. ¶ 4; Ex. C: Eslami Dec. at ¶ 6; Ex. D: Cotter 

Dec. ¶ 6) Thus, the “nerve center test” should be used to determine the principal 

place of business for each Defendant. See Friend, 130 S.Ct. at 1186; Montrose 

Chemical v. American Tourist Ins. Co., 117 F.3d 1128, 1134 (9th Cir. 

1997)(holding that a corporation’s principal place of business is the state in which 

it performs a substantial predominance of its corporate operations and, when no 

state contains a substantial predominance of the corporation’s business activities, 

then the corporation’s principal place of business is the state in which the 

corporation performs its executive and administrative functions); see also Tosco 

Corp. v. Communities for a Better Environment, 236 F.3d 495, 500 (9th Cir. 2001). 

 As explained above, the majority of Federal Express Corporation’s highlevel officers work in Tennessee at the Memphis world headquarters. (Ex. C: 

Eslami Dec. ¶ 5) The day-to-day management and administration of the STD Plan 

also takes place in Tennessee. (Ex. B: Turner Dec. ¶ 7) Aetna’s officers control 

and coordinate Aetna’s business activities in Connecticut. (Ex. D: Cotter Dec. ¶ 5) 

Accordingly, under the “nerve center” test, Defendants are citizens of Tennessee 

and Connecticut. 

 C. The amount in controversy exceeds the $75,000 jurisdictional 

minimum. 

 Plaintiff’s Complaint contemplates an amount in excess of $75,000 

exclusive of interest and costs. While Plaintiff’s Complaint does not contain an ad 

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damnum for her claims, Arizona Rule of Civil Procedure 54, the counterpart to 

Federal Rule of Civil Procedure 54, states: 

 (d) ...every final judgment shall grant the relief to which the party 

in whose favor it is rendered is entitled, even if the party has not 

demanded such relief in the party's pleadings. 

Ariz. R. Civ. P. 54(d). Pursuant to this Rule, a plaintiff may seek and recover any 

and all damages to which she is entitled, regardless of the amount prayed for in the 

complaint. 

 Although Plaintiff’s Complaint does not specify an exact amount of 

damages sought, it does state that Plaintiff is alleging that Defendants failed to pay 

her benefits to which she was entitled in the form of salary continuation under the 

STD Plan and the LTD Plan, as well as “any other employee benefits she was 

entitled to from...any other Company Plan.” (Complaint ¶¶ 9, 28-29, 34-35; p. 8, 

¶ B) As a result, Plaintiff is seeking past and future employee benefits and her 

attorneys’ fees. ( Id. ¶¶ 34-36, 45; p. 9, ¶ E) She is also seeking treble damages 

and compensatory damages under A.R.S. §§ 23-355 and 12-341.01. (Id. ¶¶ 44-45) 

 Plaintiff’s Complaint alleges that she became disabled in October 2013 and 

that she has remained disabled and unable to work in any occupation since that 

date. (Complaint ¶¶ 10, 20, 26) The Complaint alleges that Plaintiff’s STD 

benefits were wrongfully terminated on April 7, 2014, even though Plaintiff was 

eligible to continue receiving those benefits. (Complaint ¶¶ 9-14, 26) The STD 

Plan provided Plaintiff with a daily benefit of $115.64, which she received for 61 

days. (Ex. B: Turner Dec. ¶¶ 20-21) Plaintiff claims she is entitled to STD 

Case 2:15-cv-02290-SRB Document 1 Filed 11/12/15 Page 5 of 11
 

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benefits for the remainder of the 26-week period allowed under the STD Plan, 

which amounts to a total of $13,992.44 in STD benefits for 121 days. (Id. ¶ 21) 

 However, Plaintiff’s Complaint alleges that Plaintiff continues to be 

disabled and unable to work in any occupation, which places past and future 

disability benefits under the LTD Plan at issue. (Complaint ¶¶ 10, 14, 20, 26) If 

Plaintiff met the definitions for an Occupational Disability under the STD and 

LTD Plans, as she alleges in the Complaint, Plaintiff could receive $3,015.00 in 

benefits per month for as much as two years after she exhausted 26 weeks of STD 

benefits. (Id. ¶¶ 11-12, 17-20, 26-29; Ex. B: Turner Dec. ¶¶ 13, 17, 21-22) This 

amounts to over $45,225.00 in additional disability benefits Plaintiff could recover 

for the period of August 8, 2014 through the date of this removal. (Ex. B: Turner 

Dec. ¶¶ 13-14, 22) 

 Thus, the total amount of unpaid employee benefits from April 7, 2014 to 

the present that Plaintiff seeks to recover is already more than $59,217.44 in just 

disability benefits, without including the “other potential employee benefits” to 

which Plaintiff claims to be entitled under other plans or programs by virtue of 

being disabled. (Ex. B: Turner Dec. ¶ 22 ; Complaint ¶¶ 27, 35) Should Plaintiff 

remain disabled from her occupation and pursue this action until it goes to trial in 

August of 2016, she could receive an award of as much as $86,354.44 just in 

disability benefits. (Ex. B: Turner Dec. ¶¶ 21-22) 

 If Plaintiff remains disabled and unable to work in any occupation, as her 

Complaint now alleges, she could also receive monthly benefits from August 9, 

Case 2:15-cv-02290-SRB Document 1 Filed 11/12/15 Page 6 of 11
 

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2016 until she reached age 65 under the LTD Plan for a Total Disability. 

(Complaint ¶¶ 10, 14, 20, 26; Ex. B: Turner Dec. ¶¶ 16, 23) Thus, Plaintiff’s 

Complaint places in issue future benefit payments that have a total value of 

approximately $ 221,703.00. (Ex. B: Turner Dec. ¶ 23) 

 In addition to past and future benefits, Plaintiff is seeking unspecified 

compensatory damages and treble damages, which would further increase the 

amount in controversy far in excess of the jurisdictional minimum. (Complaint ¶¶ 

44-45) See Miller v. Maverik Country Stores, Inc., 2003 U.S. App. LEXIS 15312, 

*3, n. 1 (9th Cir., July 30, 2003); Lake v. Delta Air Lines, Inc., 2011 U.S. Dist. 

LEXIS 80645, *9-10 (C.D.Cal., July 22, 2011). Based solely on the amount of 

disability benefits Plaintiff alleges she is owed as of the date of this removal, she is 

seeking $177,652.32 in trebled damages. (Id. ¶ 44; p. 8, ¶ D; Ex. B: Turner Dec. 

¶¶ 13-14, 22) 

 Finally, Plaintiff’s Complaint seeks an award of attorneys’ fees. 

(Complaint ¶¶ 36, 45; p. 9, ¶ E) It is well-settled that, for purposes of calculating 

the amount in controversy, the Court should consider a potential award of 

attorneys’ fees. See Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir. 

1998); Ansley v. Metro. Life Ins. Co., 215 F.R.D. 575, 577 (D. Ariz. 2003). An 

award of attorneys’ fees to Plaintiff would push the amount of controversy even 

farther beyond the jurisdictional minimum. 

 Therefore, Defendants allege in good faith that Plaintiff’s claims for 

monetary relief in the form of all disability benefits to which Plaintiff is allegedly 

Case 2:15-cv-02290-SRB Document 1 Filed 11/12/15 Page 7 of 11
 

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owed under the STD Plan and LTD Plan, treble damages, and attorneys’ fees, 

exceed the sum or value of $75,000, exclusive of interest and costs. Therefore, the 

amount in controversy in this case satisfies the requirements for federal diversity 

jurisdiction under 28 U.S.C. § 1332. 

III. This case presents a substantial federal question.

 Alternatively, this action is removable pursuant to 28 U.S.C. §§ 1331 and 

1441. Plaintiff asserts a claim for disability benefits that raises a substantial 

question of federal law and arises out of federal law. At all relevant times, 

Plaintiff was a Covered Participant in the LTD Plan, as that term is defined by the 

plan. (Ex. B: Turner Dec. ¶¶ 5, 11, 19) The LTD Plan is an employee welfare 

benefit plan within the meaning of, subject to, and governed by the Employee 

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. (Id. ¶ 11) 

Plaintiff’s Complaint seeks to recover benefits under the LTD Plan that she 

would have received but for Defendants’ allegedly wrongful denial of benefits 

under the STD Plan. (Complaint ¶¶ 9, 28-29, 34-35) To determine whether 

Plaintiff is entitled to recover benefits under the LTD Plan, the Court is required to 

interpret the LTD plan documents, particularly with respect to whether Plaintiff 

meets the definitions of disability and the eligibility requirements to apply and 

receive benefits under the LTD Plan. (Ex. B: Turner Dec. ¶¶ 13-17) If Arizona’s 

contract and wage laws are applied to address Plaintiff’s grievances about benefits 

provided by FedEx’s LTD Plan, the application of those state laws would serve to 

regulate and “relate to” an employee benefit plan governed by ERISA. See 29 

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U.S.C. § 1144(a); Providence Health Plan v. McDowell, 385 F.3d 1168, 1172 (9th 

Cir. 2004). Plaintiff’s claims are based on and require the application of ERISA. 

Thus, this Court has original jurisdiction over this action because it is founded on 

claims or rights arising under a law of the United States. 

IV. Removal is timely and proper in this Court. 

The thirty-day removal period starts to run when the party seeking the 

action receives a “paper from which it may first be ascertained that the case 

is...removable.” 28 U.S.C. § 1446(b). This Notice of Removal is being filed 

within thirty (30) days after Defendants received copies of the Complaint through 

service of process through their registered agent, CT Corporation, on October 23, 

2015 (FedEx/STD Plan) and October 29, 2015 (Aetna). Therefore, the original 

removal of this case is timely under 28 U.S.C. § 1446(b). 

 Venue is proper in this Court because the Phoenix Division for the District 

of Arizona encompasses Maricopa County, where the State Court Action is 

pending. 

 Written notice of the filing of this Notice of Removal will be served on 

Plaintiff and filed with the Superior Court of the State of Arizona for Maricopa 

County. 

 By filing this Notice of Removal, FedEx does not waive any defense to this 

Complaint. 

 WHEREFORE, Defendants Federal Express Corporation Short Term 

Disability Plan, Federal Express Corporation, and Aetna Life Insurance Company 

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remove this action from the Superior Court of the State of Arizona for Maricopa 

County to the United States District Court for the District of Arizona, Phoenix 

Division. 

DATED this 12th day of November, 2015. 

 

 

 s/Karen Vaughan McManus

 Application for Pro Hac Vice Admission 

 to be filed 

 FEDERAL EXPRESS CORPORATION 

 Legal Department – Litigation 

 Building B, Third Floor 

 3620 Hacks Cross Road 

 Memphis, Tennessee 38125 

 (901) 434-8600 

 (901) 434-9279 fax 

 kvmcmanus@fedex.com

Attorney for Defendants 

Case 2:15-cv-02290-SRB Document 1 Filed 11/12/15 Page 10 of 11
 

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CERTIFICATE OF SERVICE 

 I hereby certify that the foregoing Defendant’s Notice of Removal was 

electronically filed on November 12, 2015 with the Clerk of the Court by using the 

CM/ECF system. 

Hard-copies of this pleading were also delivered via FedEx to: 

Scott E. Davis 

SCOTT E. DAVIS P.C. 

8360 E. Raintree Drive, Suite 140 

Scottsdale, Arizona 85260 

Scott M. Harris 

SCOTT M. HARRIS P.C. 

8360 E. Raintree Drive, Suite 140 

Scottsdale, Arizona 85260 

Parties may access this filing through the Court’s CM/ECF system. 

s/Karen Vaughan McManus 

Attorney for Defendants 

Case 2:15-cv-02290-SRB Document 1 Filed 11/12/15 Page 11 of 11