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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO REMAND AND FOR ATTORNEY’S FEES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 David R. Keesling,

 Pro Hac Vice

 Keesling Law Group, PLLC 401 S. Boston Ave., Suite 450 Tulsa, OK 74103 (918) 924-5101 Phone (918) 512-4888 Fax David@KLGattorneys.com Steven A. Fink, CA Bar No. 93762

Law Offices of Steven A. Fink 

 13 Corporate Plaza Dr., Suite 150  Newport Beach, CA 92660 (949) 706-5900 Phone (949) 706-5901 Fax sfink@stevefinklaw.com 

 Attorneys for Defendants

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – WESTERN DISTRICT

 

CLARK CARR, on s own ea an on  behalf of a class of similarly situated  persons,

 

Plaintiff, vs.  NATIONAL ASSOCIATION OF FORENSIC COUNSELORS, INC, a  Nevada Corporation; NATIONAL ASSOCIATION OF FORENSIC COUNSELORS; AMERICAN ACADEMY OF CERTIFIED FORENSIC COUNSELORS d/b/a AMERICAN COLLEGE OF CERTIFIED FORENSIC COUNSELORS, a Nevada Corporation; KARLA DEISLER TAYLOR; FRANCIS DEISLER aka FRANK JOHN PALANI; and DOES 1-10, Defendants.

Case No: CV14-8761-JFW-JCT DEFENDANTS’ JOINT RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR REMAND AND FOR ATTORNEYS’ FEES; MEMORANDOM OF POINTS AND AUTHORITIES.

JUDGE: Hon. John F. Walter Hearing Date: January 5, 2015 Time: 1:30 p.m. Courtroom: 16

DEFENDANTS’ JOINT RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR REMAND AND FOR ATTORNEYS’ FEES

Defendants National Association of Forensic Counselors, Inc. (“NAFC”), American Academy of Certified Forensic Counselors d/b/a American College of

Case 2:14-cv-08761-JFW-JC Document 18 Filed 12/15/14 Page 1 of 8 Page ID #:270

 

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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO REMAND AND FOR ATTORNEY’S FEES

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Certified Forensic Counselors (“ACCFC”), Karla Taylor Deisler, and Frank Deisler (collectively “Defendants”), hereby file their joint Opposition to Plaintiff’s Motion for Remand and For Attorneys’ Fees. In Support of their Opposition, Defendants hereby state as follows:

INTRODUCTION AND BACKGROUND

Plaintiff’s version of the underlying facts of this case is overly simplistic. The subject matter of this case, the Defendants named in this case, and the timing of the case are part of a calculated effort to intimidate and fatigue the Defendants. At best (if at all), Plaintiff’s baseless claims should be counterclaims in the related case filed in the Eastern District of Oklahoma. As stated previously in Defendants NAFC and ACCFC’s Motion to Dismiss [Dkt. 6], Plaintiff Clark Carr’s C.C.D.C. certification is also the subject of currently pending litigation between Plaintiff and the Entity Defendants in the matter of

 National Association of Forensic Counselors, Inc., et al. v. Narconon International, Inc., et al.

, which was filed on May 16, 2014 in the United States District Court for the Eastern District of Oklahoma (the “NAFC Case”). A copy of the Complaint in the NAFC Case is attached to Defendants Notice of Pendency of Other Action [Dkt. 2]. The NAFC case involves eighty-two defendants – all associated with the Church of Scientology and its affiliated drug rehabilitation program Narconon – and their theft of  NAFC and ACCFC’s logos, trademarks, certifications and established business reputation to bait vulnerable victims into the Narconon Network and consequently the Church of Scientology. Clark Carr is the President of Narconon International, the entity that leads the Narconon Network through Narconon’s flagship facility in Oklahoma (thus the filing in the United States District Court for the Eastern District of Oklahoma). Additionally, Carr personally participated in the scheme by falsely attaching C.C.D.C. to his name prior to ever receiving the certification from NAFC and then continuing to falsely advertise his certification after he allowed it to expire. [Dkt. 2-2]. Carr’s claims concerning the validity of the NAFC certifications directly relate to the claims made by the Entity Defendants in the NAFC Case in Oklahoma. Clearly, there is

Case 2:14-cv-08761-JFW-JC Document 18 Filed 12/15/14 Page 2 of 8 Page ID #:271

 

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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO REMAND AND FOR ATTORNEY’S FEES

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much more to this case than the bare bones allegations contained in Plaintiff’s Complaint,  precipitating Defendants’ filing of its Notice of Removal.

MEMORANDUM OF POINTS AND AUTHORITIES I. THIS MATTER WAS APPROPRIATELY REMOVED

 In its Motion, Plaintiff attempts to distract the Court by making weak policy arguments about Defendants’ alleged “compounding” of their purported “error,” but entirely ignores the authority cited by Defendant in its Amended Notice of Removal, which holds that notice of removal may be freely amended so long as the notice sets forth the same grounds.

Smiley v. Citibank (South Dakota), N.A.

, 863 F.Supp. 1156, 1158-1159 (C.D.Cal. 1993). Defendants incorporate by reference its Amended Notice of Removal [Dkt. 7] in its entirety. Defendants stand upon the timing of the service of the Supplemental Notice, the amount of controversy, and the basis for the calculations as stated in its Amended Notice of Removal [Dkt. 7]. Defendants aver that they must show the amount in controversy by a  preponderance of evidence, but take issue with Plaintiff’s patently false and misleading statement that “the party seeking remand

must

 present the court with ‘summary- judgment-type evidence relevant to the amount in controversy at the time of removal.’” [Dkt. 17 at Page 11 on Lines 12-13 (emphasis added)], citing to

Singer v. State Farm  Mutual Automobile Insurance Co.

, 116 F.3d 373, 377 (9

th

 Cir. 1997). However, a quick  preview of the

Singer

case reveals that the court stated that it “

may

 ‘require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.’” Thus, Plaintiff has willfully misstated the law on not just one, but two fronts: (1) stating that the party “must” present evidence, rather than “may”; and (2) the submission of evidence is to be by BOTH parties, only after the court has made a “facially apparent” determination to look at the face of the Complaint.

 Id.

 (citing

 Allen v.  R&H Oil & Gas Co.

, 63 F.3d 1326, 1336 (5

th

 Cir. 1995));

See Jimenez v. Allstate Ins. Co.

, No. CV 10-8486, 2011 WL 65764, * 2 (C.D.Cal. Jan. 7, 2011). If the “facially apparent” determination fails, the Court can look at facts in the removal petition, and if that fails, at that point the Court may request the “summary-judgment-type” evidence

Case 2:14-cv-08761-JFW-JC Document 18 Filed 12/15/14 Page 3 of 8 Page ID #:272