Document VGj0Ov5BzGa3DgwvawdrqkJRo

COURT OF COMMON PLEAS ERIE COUNTY, OHIO Mary A. Dendinger, et al., ) Case No. 46027 Plaintiffs, > ) [Hon. Ann B. Maschari] v. Chrysler Plastic Products ) ) NOTICE OF FILING PETITION ) AND BOND FOR REMOVAL ) Corp., et al., ) [Louis E. Tosi DefendantsPetitioners. ) Robert A. Bunda ) Peggy Ann Whipple ) 1200 Edison Plaza ) 300 Madison Avenue ) P.O. Box 2088 ) Toledo, Ohio 43603 ) Telephone: (419) 255-8220 ) Attorneys for Various ) Defendants-Petitioners] 98990ia n TO: ALL COUNSEL OF RECORD AND/OR PARTIES OF RECORD Please take notice that on the 11th day of February, 1987, defendants, The B.F. Goodrich Co., The Goodyear Tire & Rubber Co., Firestone Tire & Rubber Co., Conoco,Inc., Uniroyal, Inc., Union Carbide Corp., Diamond Shamrock Corp., Tenneco, Inc., and Occidental Chemical Corp., filed in the United States District Court for the Northern District of Ohio, Western Division, their cash bond and verified petition for removal of the above entitled action. A copy of the verified petition for removal is attached. Also please take notice that a copy of the verified petition for removal will be filed with the Clerk of the Court of Common Pleas of Erie County, Ohio forthwit Of Counsel for Various Defendants-Petitioners: FULLER & HENRY 1200 Edison Plaza 300 Madison Avenue P.0. Box 2088 Toledo, Ohio 43603 Louis E. Tosi Robert A. Bunda Peggy Ann Whipple 1200 Edison Plaza 300 Madison Avenue P.O. Box 2088 Toledo, Ohio 43603 Telephone: (419) 255-8220 Trial Counsel for Various Defendants-Petitioners CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Notice of Filing Petition and Bond for Removal was served upon Kirk J. Delli Bovi, Esq., counsel for plaintiffs, Murray & Murray Co., L.P.A., 300 Central Avenue, Sandusky, Ohio 44870, by ordinary mail, postage prepaid, this 11th day of February, An Attorney for Various Defendants-Petitioners m&ii nan 2- - IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION Mary A. Dendinger, et al., Plaintiffs, v. Chrysler Plastic Products, Corp., et al. DefendantsPetitioners. ) _ Case No. ) ) [Hon. Nicholas J. Walinski] ) ) VERIFIED PETITION FOR REMOVAL ) ) [Louis E> Tosi ) Robert A. Bunda ) Peggy Ann Whipple ) 1200 Edison Plaza ) 300 Madison Avenue ) P.O. Box 2086 ) Toledo, Ohio 43603 ) Telephone: (419) 255-8220 ) Attorneys for Various ) Defendants-Petitioners] TO: THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOP THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION Petitioners The B.F. Goodrich Co.', The Goodyear Tire & Rubber Co., Firestone Tire & Rubber Co., Conoco, Inc., Uniroyal, Inc., Union Carbide Corp., Diamond Shamrock Corp., Tenneco, Inc., and Occidental Chemical Corp. to support their petition for removal, say: 1. On January 22, 1987 and January 21, 1987, two civil actions, Etta Wallace v. Chrysler Plastic Products Corp., et al., Case No. C84-7864, and Herman A. Dendinger, et al. v. Chrysler Plastic Products Corp., et al.. Case No. C84-7854, these being case numbers designated on this Court's docket, were remanded by Judge Walinski to the Erie County Court of Common Pleas for lack of diversity jurisdiction. URL U6689 2. On or about February 4, 1987, the Erie County Court of Common Fleas entered an order granting plaintiffs' motion to consolidate and for leave to amend the complaint. 3. That the matter in controversy in said action exceeds the sum or value of Ten Thousand Dollars ($10,000.00), exclusive of interest and costs. 4. That there is now diversity of citizenship between the plaintiff Wallace in said action and all defendants, in that upon information and belief plaintiff Wallace is a citizen and resident of the State of Florida and defendants are all corporations organized by and under the laws of states other than Florida. Plaintiff Dendinger is an Ohio resident. 5. That the amendment of the complaint by plaintiffs permitting removal pursuant to 28 U.S.C. S1441(c) occurred within thirty (30) days before filing this petition. 6. That in the state action plaintiffs seek to recover for damages for negligence, strict liability in tort, and wrongful death to their respective deceased spouses. The claims of the two plaintiffs are separate and independent in nature, having been filed in separate actions originally and having been prosecuted as separate actions in this Court prior to remand. Both seek recovery from defendants for $10,000,000.00 compensatory damages and $10,000,000.00 punitive damages. These -2- claims are therefore within this Court's original jurisdiction pursuant to 28 U.S.C. 51332, and may be removed to this Court pursuant to 28 U.S.C. 51441(c): (c) Whenever a separate and independent elaim or cause of action, which would be removable if sued upon alone, is joined with one or store otherwise non~removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction. Because plaintiff Wallace's cause of action is properly removable due to the complete diversity existing between the parties, this Court should remove the entire action pursuant to 51441(c). 7. This removal petition is permissible even after this action has been previously remanded because the grounds for removal have changed due to the consolidation of plaintiffs' actions, thus permitting the application of 28 U.S.C. 51441(c), see Fritzler v. Boatmen's Bank, 21? C.S. 364 (1909). 8. All defendants have consented to removal of this action to this Court. 9. These defendants present and file hereunder their cash bond in the sum of Two Hundred Fifty Dollars ($250.00) on condition that they will pay all costs and disbursements Incurred by reason of the removal proceedings herein sought should it be determined that the state suit is not removable or that it was improperly removed. -3- URL 06690 10. Copies of the state court pleadings and federal court pleadings returned to the state court upon remand are not included herein because they are too voluminous. This Court can obtain said pleadings through its power to issue a writ of certiorari to the state court. 11. A copy of the Petition for'Removal will be mailed for filing with the Cleric of the Erie County Court of Common Pleas this date; attached hereto as Exhibit A is a copy of the notice of such filing which will be served upon plaintiffs' attorney and counsel for all defendants. WHEREFORE, petitioners demand that the state suit be removed to this Court, that this Court accept the cash bond presented herewith, and that this Court enter this cause of action in its docket and entertain such further proceedings herein as may be proper and authorized by law. Of Counsel for The B.F. Goodrich Co., The Goodyear Tire & Rubber Co., Firestone Tire t Rubber Co., Conoco, Inc., Uniroyal, Inc., Union Carbide Corp., Diamond Shamrock Corp., Tenneco, Inc. and Occidental Chemical Corp.: FULLER & HENRY 1200 Edison Plaza 300 Madison Avenue P.O. Box 2088 Toledo, Ohio 43603 Louis E. TOsi Robert A. Bunda Peggy Ann Whipple 1200 Edison Plaza 300 Madison Avenue P.O. Box 2088 Toledo, Ohio 43603 Telephone; (419) 255-8220 Trial Counsel for The B.F. Goodrich Co., The Goodyear Tire & Rubber Co., Firestone Tire & Rubber Co., Conoco, Inc., Uniroyal, Inc., Union Carbide Corp., Diamond Shamrock Corp., Tenneco, Inc., and Occidental Chemical Corp. -4- X3 cr, Oj to URL U6692 AFFIDAVIT I, Robert A. Bunda, being first duly sworn, state that I an one of the attorneys for petitioners in the foregoing action; and I am duly authorized to verify the foregoing petition for removal; that all defendants have consented to removal of this action to federal court; that I have prepared and read the foregoing petition for removal; and that the matters contained herein are true and correct to the best of my knowledge and belief. r Sworn to before me and subscribed in my presence this day of February, 1987. Notary Public -5- COURT OF COMMON FLEAS ERIE COUNTY, OHIO Mary A. Dendinger, et al., ) Case No. 46027 ) Plaintiffs, ) [Hon. Ann B. Maschari] ) v. ) NOTICE OF FILING PETITION ) AND BOND FOR REMOVAL Chrysler Plastic Products ) Corp., et al., ) [Louis E. Tosi ) Robert A. Bunda Defendants- ) Peggy Ann Whipple Petitioners. ) 1200 Edison Plaza ) 300 Madison Avenue ) P.O. Box 2088 ) Toledo, Ohio 43603 ) Telephone: (419) 255-8220 ) Attorneys for Various ) Defendants-Petitior.ers) TO: ALL COUNSEL OF RECORD AND/OR PARTIES OF RECORD Please take notice that on the 11th day of February, 1987, defendants. The B.F. Goodrich Co., The Goodyear Tire & Rubber Co., Firestone Tire & Rubber Co., Conoco,Inc., Uniroval, Inc., Union Carbide Corp., Diamond Shamrock Corp., Tenneco, Inc. and Occidental Chemical Corp., filed in the United States District Court for the Northern District of Ohio, Western Division, their cash bond and verified petition for removal of &dubit A Page 1 of 2 the above entitled action. A copy of the verified petition for removal is attached. Also please take notice that a copy of the verified petition for removal will be filed with the Clerk of the Court of Common Pleas of Erie County, Ohio forthwith*}. / Of Counsel for Various --izsu Defendants-Petitioners: FULLER fc HENRY 1200 Edison Plaza 300 Madison Avenue P.O. Box 20B8 Toledo, Ohio 43603 Louis E.. Tosi Robert A. Bunda Peggy Ann Whipple 1200 Edison Plaza 300 Madison Avenue P.O. Box 2088 Toledo, Ohio 43603 Telephone: (419) 255-8220 Trial Counsel for Various Defendants-Petitioners CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Notice of Filing Petition and Bond for Removal was served upon Kirk J. Delli Bovi, Esq., counsel for plaintiffs, Murray & Murray Co., L.P.A., 300 Central Avenue, Sandusky, Ohio 44870, by ordinary mail, postage prepaid, this 11th day of Feb] An Attorney for Various Defendants-Petitioners URL 06694 2- - Schibit A page 2 of 2