Case 4:05-cv TSL-AGN Document 63 Filed 10/14/2008 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION

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1 Case 4:05-cv TSL-AGN Document 63 Filed 10/14/2008 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION U-SAVE AUTO RENTAL OF AMERICA, INC. VS. PLAITIFF CASE NO. 4:05cvl17TSL-AGN KATHY FURLO, JENNIE T. VALDES AND VFB, INC. DEFENDANTS U-SA VE'S RESPONSE TO FURLOS' LATEST FILING U-Save Auto Rental of America, Inc. ("U-Save"), acting timely pursuant to Uniform Local Rule 7.2(D), submits this response to defendant's latest filng (docket no. 62), which appears to be in the nature of a motion to alter or amend the judgment (docket no. 61). U-Save would respectfully show the following: The Furlos claim that the amount in controversy requirement, which was easily and indisputably met when this case was fied,i must now be met anew, this time by the amount of the arbitrator's award. The Furlos are wrong. See Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir. 1996) ("(T)he amount in 1 The FurIo's Florida Complait, attached as Exhibit One to the Complaint by which U-Save initiated the above-captioned action (docket no. 1), aleges on page one: 1. This is an action for damages within the jurisdiction of ths Cour tht exceed the sum of $250,000 exclusive of interest; attorney's fees costs. and

2 Case 4:05-cv TSL-AGN Document 63 Filed 10/14/2008 Page 2 of 5 controversy in a motion to compel arbitration is the amount of the potential award in the underlying arbitration proceeding"). That the Webb rule continues to apply even after the arbitrator renders an award, and the winner seeks to have it confirmed, is shown by Origen Financial, L.L.C. v. Thompson, 2007 WL (S.D. Miss.). The Plaintiff in Origen, like U-Save, had been sued in State Court by a party that should have initiated arbitration instead. Like U-Save, he turned to federal court for help. Relying on diversity jurisdiction, like U-Save, he sought an order compellng arbitration and enjoining the State-Court proceedings. As to amount in controversy, Judge Barbour cited and applied Webb. He then compelled arbitration and enjoined the State Court proceedings - just as this Court did in the instant case - adding: IT is FURTHER ORDERED that... (e)ither Origen or the Thompsons may move to reopen this case if further judicial intervention is necessary... to enter judgment on the arbitration award. Id. at *9. Obviously, had Judge Barbour shared the Furlos' misconception he would have written instead something along these lines: IT is FURTHER ORDERED that... (e)ither Qrigen or the Thompsons may move to reopen this case if further judicial intervention is necessary... to enter judgment on the arbitration award, and if, but only if, the award is greater than $75,000. In the event of an award of $75,000 or less, this Court wil be helpless to see that today's ruling is given effect. Judge Barbour, correctly apprehending that Webb applies throughout the life of the suit to compel arbitration, not just at its birth, and that any other rule would mean that as a practical matter federal courts lack the power to vindicate a defendant's right to arbitrate, wrote no such nonsense.

3 Case 4:05-cv TSL-AGN Document 63 Filed 10/14/2008 Page 3 of 5 Although Webb makes the point academic within the Fifth Circuit, the cases cited by the Furlos are easily distinguishable2 and wrongly decided to boot.3 Conclusion The Furlo's latest fiing is meritless. What's more, had the Furlos made even the feeblest attempt to inform themselves - and, more importantly, this Court -- about Fifth Circuit law, they would have known that their motion was meritless. The Furlos' latest filng is of a piece with their entire approach to this dispute. Time and again they have belched forth reams of paper, citing dozens and dozens of inapposite cases.4 Every time the Furlos engage in this sort of conduct it costs U-Save money to respond (to say nothing of further delaying 2 See Choice Hotels Intern., Inc. v. Shiv Hospitality, L.L. C., 491 F.3d 171, (4th Cir. 2007) (emphasis origial): Although we have yet to opine on this interesting question, we have no occasion to do so here, as these cases (such as the case from which the Furlo's authorities are sprung, Baltin v. Alaron Trading Corp., 128 F.3d 1466 (11th Cir. 1997)) are inapposite to our inquiry. In the aforementioned cases, the paries filed actions in the district cour after a final award by an arbitrator. Choice Hotels, on the other hand, fied its initial complaint in late 2000 and its amended complaint in early 2001, and its federal action was stayed pending arbitration. We are therefore presented with a situation quite different from one in which the paries proceed directly to arbitration and then fie a complaint in district cour seeking confrmation or vacatur of an arbitration award. Here, Choice Hotels first filed a complaint in district cour, and the district cour then stayed the complaint until after arbitration. It was only after the arbitrator issued its award that Choice Hotels asked the district cour to reopen the original case. 3 See generally Karsner v. Lothian, 532 F.3d 876, (D.C. Cir. 2008). 4 Their March 27, 2008 "Notice of Revoking Arbitration," etc. cited four cases; Westlaw had a bright red on each one of them. Each one of them had been overruled on the point for which the Furlos cited them.

4 Case 4:05-cv TSL-AGN Document 63 Filed 10/14/2008 Page 4 of 5 the day on which U-Save can take this claim off of its financing documents). Had the Furlos cost U -Save four or five thousand dollars by carelessly backing their car into a U-Save vehicle, the law would have unhesitatingly made the Furlos pay. But when they cause the same amount of damage with a carelessly-fied pleading, the law is more cautious. This is largely understandable; for policy reasons we permit a great deal of litigation damage to go uncompensated. But it does not follow that we ought to leave unused any tool that we have for preventing such damage. This Court has the inherent authority to control fiings made with it. It can, and should, enter an order (1) directing the Furlos, before filing anything else, to first submit the proposed fiing to the Court, accompanied by sworn declarations from the Furlos and their attorneys that expressly affirm that the proposed filing has been prepared in compliance with Rule 11; and (2) relieving U-Save of any responsibility for responding to same unless and until same is fied with this Court's permission. WHEREFORE, premises considered, U-Save prays that this Court wil enter an order overruling the Furlos' latest fiing, enter the order described above, and grant U-Save such other or further relief, in law or equity, as to which it may be justly entitled. ::~~ --~ Robert M. Frey, MSB #5531 ATTORNEY FOR U-SAVE AUTO RENTAL OF AMERICA, INC.

5 Case 4:05-cv TSL-AGN Document 63 Filed 10/14/2008 Page 5 of 5 OF COUNSEL: BUTLER, SNOW, O'MARA, STEVENS & CANNADA, PLLC 17th Floor, Regions Plaza 210 East Capitol Street Post Office Box Jackson, MS Telephone: (601) Facsimile: (601) CERTIFICATE OF SERVICE I, Robert M. Frey, attorney for U-Save Auto Rental of America, Inc., do hereby certify that I have this day electronically fied the foregoing with the Clerk of the Court using the ECF system, and have, in addition, served the forgoing by United States Mail, first-class postage pre-paid, to the following: Alan K. Marcus, Esq. Alan K. Marcus, P.A Douglas Road Suite 111 Coral Gables, Florida John C. Enochs, Esq. Burke & Mayer 20th Floor Energy Centre 1100 Poydras Street New Orleans, Louisiana THIS the V\\\ay of October, A.D ~ lsi Robert M. Frey ROBERT M. FREY.. Jackson v.l