UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION
LEE BERRY, et al,
Plaintiffs,





v.
CIVIL ACTION NO.


ACE AMERICAN INSURANCE \
COMPANY, THE CINCINNATI
INSURANCE COMPANY and LANDMARK
AMERICAN INSURANCE COMPANY,

Defendants.
N O T I C E O F R E MO V A L
TO THE HONORABLE COURT:
Pursuant to 28 U.S.C. 1441 and 1446, Landmark American Insurance Company
("Landmark"), one of the Defendants in Cause No. DC-14-02525, pending in the 193
rd
Judicial
District Court of Dallas County, Texas, files this Notice of Removal from that court to the United
States District Court for the Northern District of Texas, Dallas Division, on the basis of diversity of
citizenship and amount in controversy and respectfully shows:
Plaintiffs and Defendants, and the amount in controversy exceeds $75,000, exclusive of interest,
costs and attorneys' fees.
2. Plaintiffs seekjudgmentinthe amount of $1,780,931.90.
3. Complete diversity exists between Plaintiffs and Defendants as follows:
I . BASIS FOR REMOVAL
1. Removal is proper because complete diversity of citizenship exists between the
DEFENDANT'S NOTICE OF REMOVAL - Page 1
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a. Plaintiffs, Lee Berry, Carl Gooden, Edward Green, Tracy Hodge, Ranthanius
Horn, Daniel Garza, Barret Gibson, Kimyatta Grimes, Randy Mathis, Gerardo
Moreno, Johnny Haskins and Wilson Peoples, are citizens of the State of Texas
because they are, and were at the time the lawsuit was filed, domiciled in the State of
Texas. See Palazzo v. Corio, 232 F.3d 38, 42 (2nd Cir. 2000)(an individual's
citizenship, within the meaning of 28 U.S.C. 1332, is determined by his or her
domicile); see also Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996)(stating that i f
diversity is established at the commencement and removal of the suit, it wi l l not be
destroyed by subsequent changes in citizenship).
b. Defendant Landmark is, and was at the time the lawsuit was filed, a citizen
of Oklahoma and Georgia for diversity purposes because it is organized under the
laws of Oklahoma and its principal place of business is in Georgia.
c. Defendant Ace American Insurance Company is, and was at the time the
lawsuit was filed, a citizen of Pennsylvania for diversity purposes because it is
organized under the laws of Pennsylvania and its principal place of business is in
Pennsylvania.
d. Defendant The Cincinnati Insurance Company is, and was at the time the
lawsuit was filed, a citizen of Ohio for diversity purposes because it is organized
under the laws of Ohio and its principal place of business is in Ohio.
4. Plaintiffs served Landmark with their Original Petition and process on April 22,
2014.
5. Pursuant to 28 U.S.C. 1446(b), Landmark timely removes this case within thirty
(30) days of its receipt of the initial pleading.
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6. Venue is proper in this district under 28 U.S.C. 1441(a) because the state court
action is pending in this district and division.
I I . BACKGROUND
7. On or about March 12, 2014, Plaintiffs filed its Original Petition in the state court
suit, seeking judgment against the Defendants for the amount of an arbitration award and judgment
allegedly entered against ATI Enterprises, Inc., ATI Acquisition Company, Ability Holdings, Inc.,
ATI Enterprises of Florida, Inc., Ability Intermediate Holdings, Inc., and Ability Acquisition, Inc.
(collectively, the "ATI Companies"). Plaintiffs allege they were parties to an arbitration proceeding
(the "Underlying Action") against the ATI Companies involving claims arising out the ATI
Companies' ownership and operation of certain for-profit, proprietary schools. Plaintiffs allege its
claims were submitted, with the consent of the ATI Companies, to binding arbitration, resulting in
an award in favor of Plaintiffs in the amount of $1,780,931.90, which Plaintiffs claim was later
reduced to judgment against the ATI Companies. Plaintiffs allege that each Defendant issued
liability insurance policies to ATI Companies covering the claims asserted by Plaintiffs in the
Underlying Action. Plaintiffs now seek to recover directly against the Defendants.
8. Simultaneously with the filing of this Notice of Removal, attached as Exhibit "A" is
the Index of State Court Documents clearly identifying each document and indicating the date
the document was filed in state court. Attached as Exhibit "B" is a copy of the docket sheet and
all documents filed in the state court action enumerated as Exhibit " B- l " thru Exhibit "B-7" as
identified on the Index of State Court Documents.
9. Landmark wi l l promptly file a copy of this removal with the clerk of the state court
in which the action was pending.
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I I I . CONCLUSION
10. Accordingly, Landmark hereby removes this case to this Court for trial and
determination.
Respectfully submitted,
I si J. Richard Harmon
J. Richard Harmon
State Bar No. 09020700
Jo Allison Stasney
State Bar No. 19080280
THOMPSON, COE, COUSINS & IRONS, L.L.P.
Plaza of the Americas
700 N. Pearl Street, Twenty-Fifth Floor
Dallas, Texas 75201-2825
Telephone: (214) 871-8200
Telecopy: (214) 871-8209
C OU N S E L F O R D E F E N D A N T
L A N D MA R K I NS URANCE C OMP A N Y
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C E R T I F I C A T E O F S E R V I C E
The undersigned certifies that a true and correct copy of the foregoing Notice of Removal
was served through the CM/ECF Filing System and certified mail return receipt requested to
counsel below on this 2
n d
day of May, 2014.
Jay C. English
ENGLISH & ASSOCIATES, P.L.L.C.
1700 Pacific Avenue, Suite 3680
Dallas, Texas 75201
Counsel for Plaintiff
Darius N. Kandawalla
Holly W. Wallinger
BAILEY CAVALIERI, LLC
10 W. Broad Street, Suite 2100
Columbus, Ohio 43215
Counsel for The Cincinnati Insurance
Company
Thomas M. Spitaletto
WILSON ELSER MOSKOWITZ EDELMAN
& DICKER LLP
Bank of America Plaza
901 Main Street, Suite 4800
Dallas, Texas 75202
Counsel for Ace American Insurance Company
Rocky Little
FANNING HARPER MARTINSON
BRANDT & KUTCHIN, P.C.
Two Energy Square
4849 Greenville Avenue, Suite 1300
Dallas, Texas 75206
Counsel for The Cincinnati Insurance
Company
Isl Jo Allison Stasney
Jo Allison Stasney
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