Case 4:18-cv ALM Document 1 Filed 11/15/18 Page 1 of 5 PageID #: 1

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1 Case 4:18-cv ALM Document 1 Filed 11/15/18 Page 1 of 5 PageID #: 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION TODD ANTHONY FOUST Removed for the District Court Plaintiff, for the 413 s Judicial District in Denton County, Texas v. CIVIL ACTION NO. 4:18-cv CITY OF CORINTH AND THE LAKE CITIES FIRE DEPARTMENT Defendants. DEFENDANT S, CITY OF CORINTH, NOTICE OF REMOVAL TO THE HONORABLE UNITED STATES DISTRICT COURT: Defendant, City of Corinth ( Corinth ), through undersigned Counsel, respectfully files this Notice of Removal pursuant to 28 U.S.C on the basis that Plaintiff s, Todd Anthony Foust ( Plaintiff ), Original Petition invokes Federal-Question Jurisdiction. In support thereof, Corinth would respectfully show this Honorable Court the following: A. INTRODUCTION 1. On or about October 17, 2018, Plaintiff commenced an action in the District Court for the 431st Judicial District in Denton County, Texas, located at 1450E. McKinney Street, Denton, Texas A copy of Plaintiffs Original Petition ) is attached and marked as Exhibit A 2. Corinth was served with the suit on October 17, Corinth files this notice of removal within the 30-day time period required by 28 U.S.C. 1446(b)(1). Bd. of Regents of Univ. of Tex. Sys. v. Nippon Tel. & Tel. Corp., 478 F.3d 274, 278 (5th Cir. 2007). 3. Pursuant to Local Rule 81 of the Eastern District of Texas, Corinth offers the following information. Parties in the case are: Plaintiff, Todd Anthony Foust; Defendant, City of Corinth. The current status of the case: the case is pending in Texas s 431st Judicial District Court, PAGE 1

2 Case 4:18-cv ALM Document 1 Filed 11/15/18 Page 2 of 5 PageID #: 2 the Plaintiff has filed an Original Petition and Corinth is awaiting a ruling on a Motion to Extend Time to Answer. B. BASIS FOR REMOVAL 4. United States District Courts have Original Jurisdiction over this action and removal is proper because Plaintiff s suit involves a Federal Question. 28 U.S.C. 1331, 1441(a); Grable & Sons Metal Prods., Inc. v. Darue Eng g & Mfg., 545 U.S. 308, 312 (2005); Broder v. Cablevision Sys. Corp., 418 F.3d 187, 194 (2d Cir. 2005); Peters v. Union Pac. R.R., 80 F.3d 257, 260 (8th Cir. 1996). Plaintiff s Original Petition explicitly seeks relief under 42 U.S.C.A Sec. 1983, a Federal Statute. Exhibit A, p. 11, The Federal Courts have supplemental jurisdiction over Plaintiffs state law claims pursuant to 28 U.S.C. 1367(a) because Plaintiff s state and federal law claims arise from the same case or controversy. Claims form the same case or controversy, if they arise out of a common nucleus of operative fact. See, State Nat. Ins. Co. Inc. v. Yates, 391 F.3d 577, 579 (5th Cir. 2004). Plaintiffs state and federal claims arise from a common nucleus of operative fact. They are based on the same facts. See Exhibit A. 6. Specifically, Plaintiffs assert a state law claim of Whistleblower Retaliation against Corinth under the Texas Whistleblower Act. Exhibit A, pp. 9-10, This claim arises out of the same case or controversy that forms the basis of the Federal Claims. The United States District Courts may exercise supplemental jurisdiction over Plaintiffs state law claims because they are so related to Plaintiffs federal claims that they form part of the same case or controversy. 28 U.S.C Accordingly, removal of this action in its entirety to Federal Court is proper. 7. All defendants who have been properly joined and served join in or consent to the removal of this case to federal court. 28 U.S.C. 1446(b)(2)(A); Cook v. Randolph Cty., 573 F.3d 1143, (11th Cir. 2009); Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir. 2008); PAGE 2

3 Case 4:18-cv ALM Document 1 Filed 11/15/18 Page 3 of 5 PageID #: 3 Harper v. AutoAlliance Int l, Inc., 392 F.3d 195, (6th Cir. 2004). Corinth is the only defendant properly served; and therefore, all defendants consent to removal as required under 42 U.S.C The Lake Cities Fire Department has not been properly served and it has not appeared. 28 U.S.C. 1446(b)(2)(A); Knight v. Mooring Capital Fund, LLC, 749 F.3d 1180, (10th Cir. 2014); see Harper v. AutoAlliance Int l, Inc., 392 F.3d 195, 201 (6th Cir. 2004). Therefore, Lake Cities Fire Department s consent to removal is not required here. 9. Pursuant to 28 U.S.C. 1441(a) and 1446(a), a Defendant desiring to remove any Civil Action from a State Court shall file the Notice of Removal in the District Court of the United States for the district and division within which such action is pending. Venue is proper in Eastern District of Texas because the 431st Judicial District where the removed action has been pending is located in the Sherman Division of the Eastern District of Texas. Corinth seeks to properly remove this action to the nearest Federal District Court, the Texas Eastern District Court in Plano, because it is located within the Eastern District of Texas, Sherman Division. 10. Pursuant to 28 U.S.C. 1446(a) and Local Rule 81 the following exhibits are attached to this Notice of Removal: (1) a completed civil cover sheet (Exhibit C); (2) a copy of all pleadings and answers: Plaintiff s Original Petition (Exhibit A) and Defendant, City of Corinth, First Motion to Extend Time (Exhibit B), except discovery material; (3) a complete list of attorneys involved in the action, including bar numbers, addresses, phone numbers, and parties represented by them (Exhibit E); (4) a list of all parties, current status of the case, and the name and address of the court from which the case is being removed (Exhibit E). We have requested a certified copy of the state court docket sheet from the relevant State Court (Exhibit D). Due to delays on the part of the State Court, Corinth is unable to obtain the certified state court docket sheet in time PAGE 3

4 Case 4:18-cv ALM Document 1 Filed 11/15/18 Page 4 of 5 PageID #: 4 to meet the filing deadline for this Notice of Removal. However, Corinth is working diligently to acquire the certified state court docket sheet as soon as possible. 11. Defendant will promptly file a copy of this Notice of Removal with the clerk of the 431st Judicial District Court in Denton County, where the suit has been pending. C. JURY DEMAND 12. A jury demand was made by Plaintiff in State Court. D. CONCLUSION 13. Defendant City of Corinth hereby gives notice under 29 U.S.C 1446 of the removal of this action from the District Court for the 431st Judicial District in Denton County, Texas to the United States District Court for the Eastern District of Texas, Sherman Division, Plano, Texas. Plaintiffs have invoked a federal question by explicitly seeking relief under Federal Law. For this reason, Corinth asks the Court to remove the suit to Federal District Court of the Eastern District of Texas in Plano, Texas. Respectfully submitted, THE LAW OFFICES OF WILLIAM W. KRUEGER III P.C. /s William W. Krueger, III WILLIAM W. KRUEGER, III State Bar No Lead Counsel BENJAMIN J. GIBBS State Bar No N. Collins Blvd., Suite 150 Richardson, Texas Facsimile ATTORNEYS FOR DEFENDANT CITY OF CORINTH PAGE 4

5 Case 4:18-cv ALM Document 1 Filed 11/15/18 Page 5 of 5 PageID #: 5 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing instrument has been mailed, telecopied or hand delivered to all attorneys of record, in compliance with Rule 21a of the Texas Rules of Civil Procedure, on this the 16th day of November, By:/s/ William W. Krueger WILLIAM W. KRUEGER, III PAGE 5

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19 Case 4:18-cv ALM Document 1-2 Filed 11/15/18 Page 1 of 6 PageID #: 19 CAUSE NO TODD ANTHONY FOUST IN THE DISTRICT COURT Plaintiff, v. 431 ST JUDICIAL DISTRICT CITY OF CORINTH AND THE LAKE CITIES FIRE DEPARTMENT Defendants. DENTON COUNTY, TEXAS DEFENDANT S, CITY OF CORINTH, FIRST MOTION TO EXTEND TIME TO THE HONORABLE JUDGE OF THIS COURT: Defendant, City of Corinth, through undersigned counsel, respectfully ask the Court to grant an additional 14 days to answer or to otherwise respond to Plaintiff s Original Petition, as authorized by Texas Rule of Civil Procedure 5. INTRODUCTION 1. Plaintiff, Todd Anthony Foust ( Plaintiff ), sued Defendant, City of Corinth, for whistleblower retaliation under Texas Whistleblower Act, Section and 42 U.S.C.A Sec Plaintiff has served Plaintiff s Original Petition on the City of Corinth on or about October 17, Plaintiff, a former employee of the Lake Cities Fire Department, claims that he was retaliated against and terminated because he filed complaints regarding alleged violations of City Ordinances and various other policies by his co-workers and superiors. City of Corinth is in the process of analyzing Plaintiff s employment history, the facts pleaded in Plaintiff s Original Complaint in light of other facts uncovered during an Internal Investigation, and both

20 Case 4:18-cv ALM Document 1-2 Filed 11/15/18 Page 2 of 6 PageID #: 20 the federal and state law claims brought by Plaintiff. City of Corinth seeks to respond as speedily as possible with strong, meritorious defenses. BACKGROUND 3. The City of Corinth intends to actively defend against the allegations raised against them in Plaintiff s Original Petition. However, at this time, the City of Corinth has been unable to conduct a sufficient investigation to file responsive pleadings by the current deadline. 4. The City of Corinth was required to Respond by November 12, The nature of the claims brought by Plaintiff involve a complex set of facts and law. The City of Corinth has been in the midst of investigating internally to determine the validity of the facts plead in Plaintiff s Original Petition and is working diligently to posit meritorious and appropriate defenses. Since Plaintiff has brought an action under both Texas Law and Federal Law, the City of Corinth is still in the process of analyzing the complexity of claims and defenses available to it. 6. Therefore, the City of Corinth respectfully request this Honorable Court to enlarge the deadline for filing responsive pleadings until November 26, This is the City of Corinth s first such motion. II. ARGUMENT AND AUTHORITIES 7. A court may grant a party an extension of time to perform an act for cause shown when the party seeks the extension before the deadline to act has expired. Tex. R. Civ. P. 5. The City of Corinth asks the Court to grant more time to respond to Plaintiff s Original Petition because

21 Case 4:18-cv ALM Document 1-2 Filed 11/15/18 Page 3 of 6 PageID #: 21 the area of law for the claims and defenses is complex and requires additional research that cannot be completed before the deadline. 8. First, Plaintiff has claimed retaliation due to his multiple complaints, some of which were not filed at all and some of which were not filed with the correct authority. Plaintiff s Petition invokes, in broad generality and without specific details, multiple City Ordinances that were allegedly violated. City of Corinth is working diligently to investigate these complaints, analyzing Defendant s employment history with the City of Corinth, and researching the City Ordinances of which Plaintiff has alleged violations of. 9. Second, Plaintiff is seeking relief under both the Texas Whistleblower Act and 42 U.S.C.A Sec The combination of state and federal claims further complicates the legal research and analysis City of Corinth needs to perform in order to respond. The City of Corinth is working to carefully bring strong, meritorious defenses in its response. The surplus of research required cannot be completed before the deadline. 10. Finally, Plaintiff has brought an action based on incomplete facts regarding his employment. Plaintiff s employment history with the City of Corinth is long and complicated. The City of Corinth is still working studiously to analyze Plaintiff s whistleblower claim in light of a plethora of issues the Plaintiff s previous supervisors have noted during Plaintiff s employment with the City of Corinth. 11. City of Corinth requests an extension of time for the reasons stated in this motion, not for the purpose of delay. CONCLUSION

22 Case 4:18-cv ALM Document 1-2 Filed 11/15/18 Page 4 of 6 PageID #: The City of Corinth is still in the process of internal investigations regarding Plaintiff s complaints and analyzing the law and complete facts to determine the appropriate defenses available. Due the complexity of facts, the intermingling of state and federal claims, and the incompleteness of Plaintiff s statement of facts in his Original Petition, The City of Corinth respectfully requests a 14-day extension to respond to Plaintiff s Original Petition. PRAYER 13. For these reasons, City of Corinth respectfully asks the Court to grant its motion to extend the time to respond to Plaintiff s Original Petition until November 26, Respectfully submitted, THE LAW OFFICES OF WILLIAM W. KRUEGER III P.C. /s William W. Krueger, III WILLIAM W. KRUEGER, III State Bar No Lead Counsel MAVISH BANA State Bar No N. Collins Blvd., Suite 150 Richardson, Texas Facsimile ATTORNEYS FOR CITY OF CORINTH

23 Case 4:18-cv ALM Document 1-2 Filed 11/15/18 Page 5 of 6 PageID #: 23 CERTIFICATE OF CONFERENCE On November 12, 2018, Defense Counsel for the City of Corinth contacted Plaintiff s Counsel by telephone and . Plaintiff Counsel indicated that Plaintiff is opposed to the extension. Thus, this motion is submitted as Opposed. /s William W. Krueger, III WILLIAM W. KRUEGER, III CERTIFICATE OF SERVICE I certify that Defendant s First Motion to Extend Time was served on Plaintiff s counsel of record in compliance with the Texas Rules of Civil Procedure, on November 12, Via chuck@elsylaw.com Chuck L. Elsey State Bar No Via chad@elseylaw.com Chad D. Elsey State Bar No Via brittney@elseylaw.com Brittney A. McClinton State Bar No Elsey & Elsey 3212 Long Prairie Road Suite 200 Flower Mound, Texas Phone: (972) Fax: (972) /s William W. Krueger, III WILLIAM W. KRUEGER, III

24 Case 4:18-cv ALM Document 1-2 Filed 11/15/18 Page 6 of 6 PageID #: 24 CAUSE NO TODD ANTHONY FOUST IN THE DISTRICT COURT Plaintiff, v. 431 ST JUDICIAL DISTRICT CITY OF CORINTH AND THE LAKE CITIES FIRE DEPARTMENT Defendants. DENTON COUNTY, TEXAS ORDER Before the court is Defendant s, City of Corinth, opposed Motion to Extend Time to respond Plaintiff s Original Petition filed on November 12, The court determines that the motion should be, and is hereby, GRANTED. It is therefore, ORDERED, ADJUDGED, AND DECREED, that Defendant s Motion to Extend time is GRANTED. Accordingly, the deadline for Defendants to file their answer to Plaintiff s Amended Complaint is extended to November 26, It is so ordered this day of November, JUDGE PRESIDING PROPOSED ORDER GRANTING AGREED MOTION FOR EXTENSION TO FILE ANSWER TO PLAINTIFF S AMENDED COMPLAINT PAGE 1

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27 Case 4:18-cv ALM Document 1-4 Filed 11/15/18 Page 1 of 2 PageID #: 27 information. EXHIBIT E: INFORMATION SHEET Pursuant to Local Rule 81 of the Eastern District of Texas, Corinth offers the following 1. Parties in the case are: Plaintiff, Todd Anthony Foust; Defendant, City of Corinth. 2. The current status of the case is: pending in State Court, the Plaintiff has filed an Original Petition and Defendant City of Corinth is awaiting a ruling on a Motion to Extend Time to answer. 3. Name and address of the State Court is: 431 st District Court in Denton County, Denton County Courts Building, 1450 East McKinney Street, Denton, Texas Complete list of attorneys involved in the action, including their bar numbers, addresses, phone numbers, and parties represented by them: a. Attorneys For Plaintiff Todd Anthony Foust i. Chuck L. Elsey 1. State Bar No Address: 3212 Long Prairie Road, Suite 200, Flower Mound, Texas Phone: (972) ii. Chad D. Elsey 1. State Bar No Address: 3212 Long Prairie Road, Suite 200, Flower Mound, Texas Phone: (972) iii. Brittney A. McClinton 1. State Bar No Address: 3212 Long Prairie Road, Suite 200, Flower Mound, Texas Phone: (972) b. Attorneys for Defendant City of Corinth i. William E. Krueger, III 1. State Bar No Address: 2097 N. Collins Blvd., Suite 150, Richardson, Texas

28 Case 4:18-cv ALM Document 1-4 Filed 11/15/18 Page 2 of 2 PageID #: Phone: ii. Ben Gibbs 1. State Bar No Address: 2097 N. Collins Blvd., Suite 150, Richardson, Texas Phone: