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Case 1:13-cv-00104-WS-C Document 1 Filed 03/01/13 Page 1 of 20

IN THE UNITED DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION BURL V. MUSGROVE, Plaintiff, v. ) ) ) ) ) ) ) ) ) ) ) ) )

CASE NO.: 13-104

KELLOGG BROWN AND ROOT, LLC, ACE AMERICAN INSURANCE COMPANY, ESIS, INC., CHRIS PETERS, KEVIN BYRD, et al., Defendants.

JOINT NOTICE OF REMOVAL COME NOW the Defendants, Ace American Insurance Company and ESIS, Inc., (hereinafter referred to as Ace and ESIS respectively), in the above styled cause, and give notice that this cause is hereby removed from the Circuit Court of Washington County, Alabama to the United States District Court of the Southern District of Alabama, Southern Division and for their Notice of Removal, Ace and ESIS show unto this Court as follows: 1. This lawsuit is a civil action within the meaning of the acts of

Congress relating to removal of cases. The Plaintiff, Burl V. Musgrove, originally

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instituted this civil action for workers compensation benefits against Defendant Kellogg Brown and Root, LLC, on May 14, 2012, where it was assigned case number CV-12-900024. The Plaintiff then amended his Complaint on January 30, 2013 and added Defendants ACE, ESIS, Chris Peters, Kevin Byrd and fictitious defendants. Additionally, the Amended Complaint alleged common law tort claims of outrage, conspiracy, fraud, and abuse of process. Additionally, the Plaintiff alleged a claim of retaliatory discharge based on the Workers Compensation Act of Alabama. 2. A true and correct copy of the entire court file, with all process,

pleadings and orders served on the removing is attached as Exhibit A. I. TIMING OF REMOVAL NOTICE. 3. Although the original lawsuit was filed on May 14, 2012, it only

alleged claims arising under Alabamas Workers Compensation Act, and thus was not removable at that time. However, the Plaintiff amended his Complaint on January 30, 2013 alleging common law tort claims, thus making the case removable. Defendants Ace and ESIS were served with the Amended Complaint on February 4, 2013. 4. This removal is filed within thirty (30) days of the Defendants being

served with the Amended Complaint pursuant to 28 U.S.C. 1446(b)(3).

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II.

COMLETE DIVERSITY OF CITIZENSHIP EXISTS BETWEEN THE PARTIES. 5. Plaintiff, Burl V. Musgrove, is and was at the institution of the civil

action, a citizen and resident of the State of Alabama. (See Complaint attached within Exhibit A). 6. Defendant ESIS, is and was at the time of the institution of this civil

action, a corporation organized and existing under and by virtue of the laws of the State of Pennsylvania (and not Alabama), with its principal place of business in the State of Pennsylvania. As a result, ESIS, is not now and was not at the institution of this civil action a resident or citizen of the State of Alabama within the meaning of the acts of Congress relating to the removal of cases. 7. Defendant ACE, is and was at the time of the institution of this civil

action, a corporation organized and existing under and by virtue of the laws of the State of Pennsylvania (and not Alabama), with its principal place of business in the State of Pennsylvania. As a result, ACE, is not now and was not at the institution of this civil action a resident or citizen of the State of Alabama within the meaning of the acts of Congress relating to the removal of cases. 8. Defendant Kellogg Brown and Root, LLC, is a limited liability

company. No member of Kellogg Brown and Root, LLC is now nor was at the institution of the civil action a resident or citizen of the State of Alabama within the meaning of the acts of Congress relating to the removal of cases.
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9.

Defendant Chris Peters, is and was at the time of the institution of the

civil action a resident and citizen of the State of Georgia. As a result, Defendant Chris Peters is not now and was not at the institution of the civil action a resident or citizen of the State of Alabama within the meaning of the acts of Congress relating to the removal of cases. 10. Upon information and belief and the allegations in plaintiffs

complaint, Defendant, Kevin Byrd, is and was at the time of the institution of the civil action, a resident and citizen of the State of Texas. As a result, Defendant Kevin Byrd is not now and was not at the institution of this civil action a resident or a citizen of the State of Alabama within the meaning of the acts of Congress relating to the removal of cases. 11. The Amended Complaint purports to state claims against unnamed

fictitious parties named A, B, and C. Pursuant to 28 U.S.C. 1441(b)(1) the citizenship of Defendants sued under fictitious names shall be disregarded for the purposes of removal. 12. There is therefore complete diversity of citizenship because plaintiff is

a citizen of Alabama and, under the principles for determining citizenship in diversity cases, no defendant is an Alabama citizen.

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III.

THE AMOUNT OF CONTROVERSY REQUIREMENT HAS BEEN SATISFIED. 13. In addition to establishing diversity of citizenship amongst the parties,

the removing party must also establish that the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs . . . See 28 U.S.C. 1332(a)(1). Where, as here, a Plaintiff makes an unspecified demand for damages in state court, a removing Defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the . . . jurisdictional requirement. Roe v. Michelin N. Am., Inc., 613 F. 3d 1058, 1061 (11th Cir. 2010) (quoting Tapscott v. MS Dealer Service Corp., 77 F. 3d 1353, 1357 (11th Cir. 1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F. 3d 1069 (11th Cir. 2000)). In some cases, this burden requires the removing Defendant to provide additional evidence demonstrating that removal is proper. Id. Pretka v. Kolter City Plaza II, Inc., 608 F. 3d 744 (11th Cir. 2010). In other cases, however, it may be facially apparent from the pleading itself that the amount in controversy exceeds the jurisdictional minimum, even when the complaint does not claim a specific amount of damages. Id. at 754 (quoting Williams v. Best Buy Company, Inc., 269 F. 3d 1316, 1319 (11th Cir. 2001)). 14. In satisfying its burden on removal, a removing defendant is not

required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it. Pretka, 608 F. 3d at 754. To the contrary, Eleventh Circuit
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precedent permits district courts to make reasonable deductions, reasonable inferences, or other reasonable extrapolations from the pleadings to determine whether it is facially apparent that a case is removable. Roe, 613 F. 3d at 1061 62 (quoting Pretka, 608 F. 3d at 754). Put simply, a district court need not suspend reality or shelve common sense in determining whether the face of a complaint . . . establishes the jurisdictional amount. Instead courts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements. Id. at 1062 (quoting Pretka, 608 F. 3d at 754) (affirming district courts independent appraisal of plaintiffs claim for unspecified damages and finding that district court did not overstep by relying on [his] judicial experience and common sense to determine whether [plaintiffs unspecified damages] likely exceed $75,000.00.). Here, judicial experience and common sense dictate that the amount in controversy put forth in Plaintiffs Complaint easily exceeds $75,000.00. 15. In the Plaintiffs Complaint, the Plaintiff seeks both compensatory and

punitive damages in an unspecified amount. In particular the Plaintiff is claiming damages in regards to his workers compensation claim, but in addition he claims to have suffered as follows: he has experienced emotional distress to the extent that he has had to endure pain and suffering beyond what he would be expected from his on-the-job injury due to his inability to obtain proper medical care; he has 6

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incurred medical bills and will continue to do so; he has incurred medical bills which he is unable to pay; his income has been completely cut off, his wife cannot obtain necessary medical treatment and he has been rendered destitute by the Defendants. (See Plaintiffs Amended Complaint attached within Exhibit A). Additionally the Plaintiff claims injuries of both mental and physical anguish and will continue to suffer mental and physical anguish in the future; he has lost time and wages from his employment; he has past medical bills; he will have future medical bills; he has no health insurance; and will suffer future lost wages. (See Plaintiffs Amended Complaint attached within Exhibit A). 16. It is important to note that the plaintiff is claiming damages in the

form of medical bills and lost wages from the alleged outrageous conduct of all Defendants. The plaintiff has the following medical bills from the following medical care providers: 1) Washington County Hospital - $15,249.57; 2) IMC Northside Clinic - $284; and 3) The Orthopedic Group - $3,077. Copies of these medical bills, received from plaintiffs attorney, are being filed under seal with this Notice of Removal marked as Exhibit B. Total medical bills to date are $18,610.57. 17. Additionally, the plaintiff testified that he missed work from the date

of the alleged accident, April 10, 2012, through October 15, 2012. (See Plaintiff Deposition, p. 25, attached herein as Exhibit C). In the plaintiffs original 7

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complaint he alleged his Average Weekly Wage (AWW) to be $960.00, which was admitted by his employer, Defendant Kellogg, Brown and Root, LLC. In the context of a workers compensation claim denial, a wage loss is the amount of unpaid compensation benefits, or 2/3 of the AWW for the period claimed (here 29 weeks). That formula calculates the plaintiffs damages for lost wages as $18,569.28. Total economic damages to date, of which defendants are aware, for the plaintiff equal $37,179.85. It should be noted that the plaintiff is claiming an unspecified amount of future medical bills and lost wages, which would increase the hard-dollar claim. Given that $37,000.00-plus figure, and the other stated elements of plaintiffs damage claim, the question becomes whether it is more likely than not that plaintiffs claims for physical pain, emotional distress, and punitive damages have an aggregate value of at least $38,000.00. 18. The Supreme Court's instructions on calculating unliquidated damages

have not been that extensive. Substantial guidance is found in a case arising from the Middle District, Bell v. Preferred Life Assurance Society, 320 U.S. 238 (1943). Bell was a diversity-jurisdiction investment fraud case. Plaintiff Bell purchased an insurance certificate from defendant with a face value of $1,000. When the complaint was filed plaintiff had paid a total of about $202. Plaintiff sued for $200,000. It was undisputed that plaintiff's maximum possible economic loss was the $1,000 face value of the certificate. On defendant's motion, the district court 8

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dismissed because it concluded that the $3,000 diversity amount in controversy requirement was not satisfied. On appeal, then Montgomery lawyer Richard T. Rives led his future brethren on the Fifth Circuit into error. That court affirmed the dismissal, concluding that it was "legally inconceivable" that plaintiff could recover $3,000. Bell v. Preferred Life Assurance Society, 131 F.2d 516, 518 (5th Cir. 1942). 19. When the Bell case reached the Supreme Court on certiorari, Justice

Black, for a unanimous Court, gave short shrift to the "legally inconceivable" evaluation. The first principle he stated is equally applicable here: Where both actual and punitive damages are recoverable under a complaint each must be considered to the extent claimed in determining jurisdictional amount." 320 U.S. at 240. After acknowledging the $1,000 limit on economic damage the Court turned to punitive damages. There was a question whether the controlling substantive law was provided by South Carolina or Alabama, so the Court looked at both. As to South Carolina, the Court said the answer was clear, noting a South Carolina case where "it appears that punitive damages of $1,211.70 were allowed although the actual damages were only $11.70. No other details about that case were discussed. Id. at 241 n. 5. There was a more extensive discussion of Alabama law, with Justice Black concluding that the Complaint alleged the equivalent of "gross fraud," warranting punitive damages in Alabama. Id. at 241. 9

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As to a recoverable amount for such a claim, the Court cited an Alabama case affirming a $6,000 judgment where actual damages were no more than $1,000. Again, there was no discussion of any other details of that case. Id. at 242 n. 7. Under the Supreme Courts guidance from Bell, it is appropriate to (a) use some actual-to-punitive multiplier in assessing potential recovery, and (b) look to prior decisions for the same purpose. 20. Courts in the Eleventh Circuit, including this Court, have deemed it

appropriate to consider a plaintiffs claim for physical pain and suffering in determining the amount of controversy. In Henderson v. Dollar General Corp., 2009 WL 959560 (S.D. Ala. April 7, 2009), this Court held that a fair and impartial mind would find that an unspecified amount of pain and suffering, plus other damages, would exceed the jurisdictional amount in controversy; Carr v. Holloway, 2010 WL 3937507, *3 (M.D. Ga. Oct. 1, 2010) (Court used common sense and judicial experience to determine that an unspecified amount in controversy over $75,000.); Katz v. J.C. Penny, 2009 WL 1532129, *5 (S.D. Fla. June 1, 2009) (Court considered damages for pain and suffering in finding that amount in controversy requirement had been met.). Likewise, other Courts in the Eleventh Circuit have found the requisite amount in controversy. See Love v. N. Tool & Equip. Co., Inc., 08-20453-CIV, 2008 WL 2955124, and *5 (S.D. Fla. Aug. 1, 2008); see also Butler v. Charter Commcns, Inc., 755 F. Supp. 2d 1192, 10

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1196 (M.D. Ala. 2010) ([T]he specific facts alleged by Defendants, and supported by the attachments to the Notice of Removal and opposition to remand, along with requests for additional damages for emotional distress and punitive damages, specifically establish the amount in controversy exceeds $75,000.00, exclusive of interests and costs.) 21. Plaintiff also demands punitive damages. Plaintiffs demand for

punitive damages is, of course, included in the determination of the amount in controversy. Bell v. Preferred Life Assurance Socy, supra; (claims for compensatory and punitive damages should be aggregated to determine amount in controversy); Holley Equip Co. v. Credit Alliance Corp., 821 F. 2d 1531, 1535 (11th Cir. 1987) (When determining the jurisdictional amount in diversity cases, punitive damages must be considered, unless it is apparent to a legal certainty that such cannot be recovered.) (internal citations omitted); see also South Dallas Water Authority v. Guarantee Co. of North America, USA, 767 F. Supp. 2d 1284, 1303 and n. 21 (S.D. Ala. 2011) (holding that the defendant could have marshaled enough evidence of the jurisdictional facts to support a notice of removal . . . when one considers plaintiffs demand for compensatory and punitive damages); Blackwell v. Great American Financial Resources, Inc., 620 F. Supp. 2d 1289, 1290 (N.D. Ala. 2009) (Blackwell) ([I]n determining the jurisdictional amount in controversy in diversity cases, punitive damages must be considered unless it is 11

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apparent to a legal certainty that such cannot be recovered.) (internal citations omitted). 22. In the recent Blackwell decision, the court held that an unspecified

claim of punitive damages can be added to fulfill the amount in controversy requirement when the compensatory damages claim alone falls short. 620 F. Supp. 2d at 1292. In Blackwell, the plaintiffs claimed $23,172.28 in compensatory damages, but also claimed an unspecified amount of punitive damages. Id. at 1290. The Blackwell court said that it is the constitutionally-permissible limits of punitive damages in a particular case that are used to compute the jurisdictional amount-in-controversy required. Id. at 1291. Since the compensatory damages in Blackwell were already $23,172.28, the court held that a punitive award of slightly more than double the compensatory damages claim . . . is uncontroversially within the limits of the Due Process Clause. Id. Therefore, since that was all that was needed to reach the required amount in controversy, the court found that it had diversity jurisdiction. Id. at 1292. In the current case, compensatory damages already equal $37,179.85, and are alleged to increase in the future. Therefore, punitive damages that are double the compensatory damages would bring the amount in controversy up to $111,539.55, which far exceeds the required $75,000 amount in controversy requirement.

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23.

Additionally, taking into account outrage verdicts affirmed on appeal

(as the Supreme Court did in Bell), the amount in controversy exceeds the designated amount. See e.g. Travelers Indent. Co. of Illinois v. Griner, 809 So.2d 808 (Ala. 2001) (affirming a judgment of $500,000.00 relating the fraud and outrage claims in the context of a dispute over medical benefits in which the plaintiff had offered to settle his claims for $80,000 prior to filing his action); Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208 (Ala. 1990) (affirming a judgment of $750,000.00 in an outrage case). 24. Based on all of the above it is clear that the amount in controversy

exceeds the $75,000.00 statutory threshold based on the Plaintiffs claim for economic damages, physical pain, mental anguish and punitive damages, as well as prior jury awards for claims of outrage in the workers compensation context. IV. STATEMENT REGARDING REMOVAL OF WORKERS COMPENSATION CLAIMS. 25. Ordinarily workers compensation claims are not removable to federal

court because of 28 U.S.C. 1445(c); however common law causes of action for fraud, outrage, conspiracy, and abuse of process are removable. In Raye v. Employers Ins. of Wausau, 345 F. Supp 2d 1313 (S.D. Ala. 2004), an employee filed a civil action in the Circuit Court of Choctaw County against his employers workers compensation carrier (and others) alleging that the defendants failed to pay medical benefits that were owed pursuant to a court approved settlement, and
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included causes of action for outrage and negligence. The defendants removed the case to this Court, and the employee moved to remand the case asserting, among other things, that 28 U.S.C. 1445(c) prohibited removal. This Court denied the employees motion to remand, and stated: A civil action in any State Court arising under the workmans compensation laws of such state may not be removed to any District Court of the United States. 28 U.S.C. 1445(c) (emphasis added). As this Court has previously held after extended discussion, State causes of action that are creatures of the common law do not arise under the workers compensation laws. White v. Travelers Insurance Co., Civil Action No. 01-398-S (Doc. 14 at 5-6). Thus, the Plaintiffs claims for outrage and negligence do not trigger application of 1445(c). Id. Similarly, in Sasser v. Ryder Truck Rental, 2008 WL 45736, *5-6 (M.D. Ala. Jan. 2, 2008), a plaintiff filed a suit in state court against his employer and a claims adjuster seeking compensatory and punitive damages arising out of the alleged failure to approve medical treatment for an on-the-job injury. Sasser and his employer had previously entered into a settlement agreement concerning Sassers disability claim; however, future medical benefits were left open. Sasser filed a complaint asserting causes of action for outrage, respondeat superior, and negligent/wanton supervision relating to the alleged failure of the defendants to approve future medical care. In determining that 1445(c) did not preclude removal, the court stated:
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Clearly, then, outrage is common law tort and common law tort actions do not arise under worker compensation laws. See Patin v. Allied Signal, Inc., 77 F. 3d 782, 789 (5th Cir. 1996); Raye v. Employers Ins. of Wausau, 345 F. 2d 1313, 1316 (S.D. Ala. 2004). [S]tate causes of action that are creatures of the common law do not arise under the workers compensation laws. Raye, 345 F. Supp. 2d at 1316. At best, common law tort claims relate to the underlying workers compensation claim but, because they are a creation of common law, they cannot arise under the statutory workers compensation scheme. Consequently, while the facts in this case may involve Sassers underlying workers compensation claim, the legal claims he presents do not find that they are genesis in Alabama Workers Compensation Act. Accordingly, the Court concludes that these claims are not precluded from removal by 28 U.S.C. 1445(c). Sasser, 2008 WL 45736 at *6. As in Raye and Sasser, Plaintiff Musgroves outrage, fraud, conspiracy, and abuse of process causes of action do not arise under the Workers Compensation Act, and 28 U.S.C. 1445(c) does not preclude removal of the present action. 26. In the case of Lamar v. The Home Depot, Civil Action Number 12-

0552-WS-C, 2012 U.S. Dist. LEXIS 171479 (S.D. Ala. Dec. 3, 2012) Chief United States District Judge William H. Steele laid out the proper procedures for removing a case to federal court involving both workers compensation issues and Alabama common law tort issues. The correct procedure is to remove the entire case, including the workers compensation claim and retaliatory discharge claim, to the Federal Court. The Federal Court will then sever the workers compensation claim
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and retaliatory discharge claim and remand those to State Court. The Federal Court will continue to exercise jurisdiction over the Alabama common law tort claims of outrage, conspiracy, fraud, and abuse of process. The inclusion of a non-removable workers compensation claim in the same lawsuit did not render removal of the action improper under either that statute or 1445(c). Instead, the presence of the workers compensation claim triggered 1445(c) as to only that claim and required remand of only that claim. Thus, the limits on federal jurisdiction imposed by 28 U.S.C. 1445(c) served only to render that the workers compensation claim must be remanded to State Court. Lamar at *8. Chief Judge Steele relied heavily on the 11th Circuit case Reed v. Heil Co., 206 F. 3d 1055 (11th Cir. 2000), in which claims for retaliatory discharge and violation of the Americans with Disabilities Act (ADA), was removed to Federal Court. Reed at 1058. The lower court retained both causes of action and granted summary judgment on all claims. Id. The 11th Circuit then ruled that the lower court did not have jurisdiction over the retaliatory discharge claim and thus required that the retaliatory discharge claim be remanded to the state court. Reed at 1061. However, the 11th Circuit addressed the merits of the ADA claim and ruled that it was under the proper jurisdiction of the lower court and that they ruled appropriately. Id. Based on the Reed decision, Chief Judge Steele, ruled as follows, this case was removed based on diversity jurisdiction, and therefore 16

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removal was proper under 1441(a). Because Reed holds that, when removal is properly accomplished under 1441(a), the Federal Court is to remand the workers compensation claim and retain the properly removed claims, it forecloses remand of the plaintiffs State law claims. Lamar at *12. Therefore, the current case is properly removed to Federal Court and the claims for workers compensation benefits and retaliatory discharge, should be severed and remanded to State Court. The remaining claims of outrage, fraud, conspiracy, and abuse of process should remain in Federal Court. V. ALL OTHER REMOVAL PREREQUISITES HAVE BEEN SATISFIED. 27. This Notice of Removal is timely pursuant to 28 U.S.C. 1446(b)

because it is filed within the required thirty (30) days of Defendants Ace and ESIS receipt of the Amended Complaint. 28. 29. Defendants have sought no similar relief with respect to this matter. Venue is proper in this district under 28 U.S.C. 1446(a), because

this district and division embrace Washington County, in which the removed action has been pending in the Circuit Court of Alabama. 30. been met. 31. Co-Defendants Kellogg Brown and Root, LLC, will file separately its The prerequisites for removal under 28 U.S.C. 1441 and 1446 have

consent to this removal. Additionally, it should be noted that co-defendant Kevin


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Byrd has only very recently been served with the Amended Complaint, but he will shortly file a joinder in this Notice of Removal, as will recently served codefendant Chris Peters. 32. A Notice of Filing Notice of Removal, with a copy of this Notice of

Removal attached, will promptly be filed with the Circuit Court Clerk for the Circuit Court of Washington County. 33. Written notice of the filing of this Notice of Removal will be given to

the adverse parties as required by law. 34. The allegations of this Notice of Removal are true and correct, this

cause is within the jurisdiction of the United States District Court for the Southern District of Alabama, and this cause is removable to the United States District Court for the Southern District of Alabama. 35. If any questions arise to the propriety of the removal of this action,

Defendants Ace and ESIS request the opportunity to present a brief and oral argument in support of its position that this case is removable. See Sierminski v. Transouth Fin. Corp., 216 F. 3d 945, 949 (11th Cir. 2000).

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Respectfully submitted by, /s/Paul A. Miller Paul A. Miller (ASB-7131-M71P) Miller, Christie & Kinney, P.C. Vestavia Centre 2090 Columbiana Road, Suite 3400 Birmingham, AL 35216 Telephone: (205) 326-0000 Fax: (205) 326-2945 Email: Pmiller@mck-law.com CERTIFICATE OF SERVICE I certify that I have served a copy of the above and foregoing pleading by EFiling on this the 1st day of March, 2013, on all counsel of record as stated above. Robert D. Bo Keahey, Jr. Keahey Law Office, LLC P. O. Box 934 Grove Hill, AL 36451 Edward Tatum Turner Turner, Onderdonk, Kimbrough, Howell, Huggins & Bradley P. O. Box1390 Chatom, AL 36518 Jarrod J. White, Esq. Cabaniss, Johnston, Gardner, Dumas & O'Neal P. O. Box 2906 Mobile, AL 36652-2906 Kevin Byrd Kellogg Brown & Root, LLC 601 Jefferson Street Houston, TX 77002 19

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Chris Peters ESIS, Inc. Routing 9250 P. O. Box 6560 Scranton, PA 18505
/s/Paul A. Miller Of Counsel

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