NO.

10-1035-CIV IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Altimum Solutions, Inc, Plaintiff Appellant, v. Carbon Solutions, Ltd., Geno Craig, Ph.D., Delbert Darmun, Defendant Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT, FLORIDA DIVISION

BRIEF OF APPELLEE

Student Number: XXXX 1422 W. Peachtree St. NW Atlanta, GA 30309 ATTORNEY FOR APPELLEE

TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . i ii

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . iii STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . Course of Proceedings and Disposition Below. . . . . . Statement of Facts . . . . . . . . . . . . . . . . . . Standard of Review . . . . . . . . . . . . . . . . . . SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . ARGUMENT AND CITATIONS OF AUTHORITY . . . . . . . . . . . . I. THIS COURT SHOULD AFFIRM THE DISTRICT COURTS ORDER AND JUDGMENT BECAUSE ________. . . . . . . . . . 1 2 2 3 7 7 9 9

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . .

28

TABLE OF CITATIONS United States Supreme Court

United States Circuit Courts of Appeals

United States District Courts

Statutes and Legislative History

Other Sources

STATEMENT OF JURISDICTION This case asserts a claim pursuant to Altimum Solutions Inc., v. Carbon Solutions, Ltd., and Geno Craig Ph.D., and Delbert Darmun. The United states District Court for the Eleventh Circuit had subject matter jurisdiction over this matter pursuant to 28 U.S.C. ____ (2006) because the claim is federal question. The United States Court of Appeals for the Middle District of Florida has jurisdiction of this appeal pursuant to 28 U.S.C. ____ because this is an appeal of a final judgment in a civil case. The final Order was entered on November 4, 2010. The Notice of Appeal was timely filed on November 9, 2010 pursuant to 28 U.S.C. _____.

STATEMENT OF THE ISSUES I. Was the case, Altimum Solutions Inc., v. Carbon Solutions,

Ltd., and Geno Craig Ph.D., and Delbert Darmun, properly decided in the lower court based on lack of Complete Diversity due to fraudulent Joiner on the assumption of Tortuous Interference?

STATEMENT OF THE CASE Course of Proceedings and Disposition Below

The Statement of the Facts

The Standard of Review On Appeal, the grant or denial of a motion for summary judgment if reviewed De Novo. {Salve Regina College v. Russell, 111 S. Ct. 1217}. SUMMARY OF THE ARGUMENT The case should not be remanded to Florida state court because Darnum was fraudulently joined into the suit by ASI. The Joinder was fraudulent because ASI claimed tortious interference with ASIs business relationships, yet they are unable to state a claim for Fraudulent Joinder because Darnums relationship with ASIs clients was justified through the Competition Privilege.

ARGUMENT AND CITATIONS OF AUTHORITY

I.

Diversity exists because Darnum was fraudulently joined in

the suit due to ASIs failure to state a claim for tortious interference. A. The first element required for tortious interference to exist is the defendants intentional and unjustified interference with the relationship. Int. Sales v. Austral 262 F.3D 1152 1. Competition Privilege states that Darnums interference was justified.

2. Appellant will argue that the contracts ASI had with their clients would have continued without the interference of Darnum, however this will not hold as the clients had already expressed interest in leaving ASI. B. Darnums relationship with ASIs clients was not tortious because ASIs contracts with their clients had expired therefore severing the business relationship they had. 1.

CONCLUSION

For all of the forgoing reasons, Carbon Solutions, Ltd., Geno Craig Ph.D., and Delbert Darmun requests that this Court affirm the District Courts Order dated November 4, 2010. Respectfully submitted this __ day of __, 2011.

XXXX Counsel for Appellee