Case4:14-cv-01048 Document 1 Filed in TXSD on 04/16/14 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

IN RE: DORA ANN BURNETT, ET AL.

Plaintiff,

AND

PARTY WITH INTEREST

MEDICARE, Secondary Payer Act

v.

ConocoPhillips, Chevron Phillips Chemical Company LP, Chevron Phillips Chemical Company LLC, Chevron Phillips Chemical Company, Phillips Petroleum Co., Phillips Chemical Company, Phillips 66 Company, Pacific Employers Insurance Company, ACE U.S.A., ACE American Insurance Company, ESIS U.S.A., ESIS, AETNA U.S. Health Care, Aetna Life Insurance Company, Benefit Concepts, MetLife, Metropolitan Life Insurance, ACE Property and Casualty Insurance Company and Affiliated Insurers, Oil Company Insurance Limited (OCIL) of Bermuda, SOMA GODINEZ, Adjuster, CRAWFORD & COMPANY, LINDA GOIDNA, Benefit Assistant, DEARBORN NATIONAL, TPCIGA, DAVID HEINSOHN, Benefit Plan Administrator of Chevron Phillips Chemical Company LP, VIRGINIA HUBBARD of Human Resource for Chevron Phillips Chemical Company LP, MYKE CAPPS of Human Resources Chevron Phillips Chemical Company LP, LISA LAURIN, HR Manager Chevron Phillips Chemical Company LP, SHEILA FELDMAN, HR Manager Conoco Phillips Company, TFM KTEHI, Plan Administrator Conoco Phillips Company, JAMES MULVA

§ CIVIL ACTION NO. 4:14-cv-1048

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previous President and CEO Conoco Phillips, § et al, RYAN LANCE Current President/CEO § Conoco Phillips Chemical Company LP, § PETER CELLA Chevron Phillips President § and CEO, and all present and past BOARD § OF DIRECTORS of ConocoPhillips, et al, § CHARLES COVERT, MD, CHERYL § HARTMAN, USW Local 12-227, JIM § LEFON, International Representative, JOHN § MICKEY BREAUX, Union Director and § DANIELLE SANTORI, Corporate § Compliance Chevron Phillips and § SAVANNA SAM, Employee Relations § Conoco Inc., §

§

Defendants. §

NOTICE OF REMOVAL

Defendant, Oil Company Insurance Limited (OCIL) of Bermuda (hereinafter "OCIL")

files this Notice of Removal pursuant to 28 U.S.C. §1446(a). Introduction

1. On February 27, 2014 Plaintiff Dora Ann Burnett ("Plaintiff) filed her First

Amended Petition in Cause No. 76066-CV, In Re Dora Ann Burnett et al. V. ConocoPhillips et

al., in the 149th Judicial District Court of Brazoria County, Texas. OCIL did not receive notice

of the suit until approximately March 17, 2014 when the Texas Department of Insurance

forwarded Plaintiffs First Amended Petition. Consequently, OCIL timely filed this notice of

removal within the 30-day period required by 28 U.S.C. § 1446(b).

Basis for Removal

2. Plaintiffs claims involve an alleged dispute between a citizen of Texas and

numerous defendants, some of whom would admittedly be considered non-diverse citizens of

Texas, but for the fact that all defendants have been fraudulently or improperly joined. In

particular, Plaintiffs First Amended Petition affirmatively stated that her complaints concern an

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incident in 2000.l Fourteen years later, all possible statutes of limitation concerning the incident

have run. Consequently, removal is proper on the basis of diversity of citizenship because there

are no properly joined non-diverse defendants.

Law and Argument

3. Diversity jurisdiction requires complete diversity of citizenship, meaning that the

exercise of jurisdiction generally is not appropriate if any plaintiff shares the same state

citizenship as any defendant. However, the "citizens" upon whose diversity jurisdiction rests

must be real and substantial parties to the controversy.4 Thus, a party can also remove a case

from state to federal court on the basis of diversity jurisdiction by showing that any seemingly

non-diverse parties were fraudulently or improperly joined.5 Whenever fraudulent or improper

joinder has occurred, the fraudulently-joined or improperly-joined parties should be disregarded

in the diversity jurisdiction analysis.6

4. The Fifth Circuit recognizes at least two types of fraudulent or improper joinder

applicable to this case: (1) fraud in the pleading of jurisdictional facts; or (2) the inability of the

Plaintiff to establish a cause of action against the non-diverse party in state court. The district

1 Exhibit 1, Plaintiffs First Amended Petition, Page 6.

2 28 U.S.C. § 1332(a); see also Smallwood V. III. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (stating that defendants are entitled to remove a case to federal court "unless an in-state defendant has been 'properly joined'").

3 Corfield v. Dallas Glen Hills, LP., 355 F.3d 853,857 (5th Cir. 2003).

Id.

5 See Jernigan v. Ashland Oil Co., 989 F.2d 812, 815 (5th Cir. 1993).

6 See Smallwood, 385 F.23d at 573 (5th Cir. 2004) (stating that defendants are entitled to remove a case to federal court "unless an in-state defendant has been 'properly joined'").

Id.

Case4:14-cv-01048 Document 1 Filed in TXSD on 04/16/14 Page 4 of 8

court may use a summary judgment-like procedure and consider affidavits and other evidence

o

outside the pleadings represented by a defendant in its notice of removal.

5. Plaintiffs pleading of jurisdictional facts was fraudulent and improper because

the state district court cannot possibly have jurisdiction over this case for at least two reasons: • Plaintiffs First Amended Petition was filed fourteen years after the

incident, past all possible statutes of limitations, depriving the state district court of jurisdiction; and

• Texas courts do not have jurisdiction over a nonresident defendant unless the defendant purposely established "minimum contacts" with Texas.9

OCIL (and likely many other defendants) lacks the required minimum contacts.10

6. Similarly, Plaintiff cannot establish a cause of action against any defendant in

state court because her First Amended Petition was filed fourteen years after the incident, past all

possible statutes of limitations. Indeed, Plaintiff never had any kind of contact with OCIL that

could give rise to a cause of action against OCIL.11

7. In addition, removal is proper because the amount in controversy exceeds $75,000

exclusive of interests and costs. Specifically, Plaintiffs First Amended Petition alleged:

• "Defendants, jointly and severally, have taken as much as and possibly over $5 trillion from the United States Government in the years 1975 to present, the said unlawful taking consisting of the unlawful creation of claims against the U.S. Treasury to the extent of millions of dollars in the years 1975 to present."13

8 Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 311-312 (5th Cir. 2002); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256,259-260 (5th Cir. 1995).

9

10

Burger King Corp. v. Rudzewicz, 471 U.S. 462,474-476 (1985).

See Exhibit 2, Affidavit of Theodore R. Henke.

See id.

See id.

Exhibit 1, Plaintiffs First Amended Petition, Page 8. Emphasis added.

4

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Plaintiff also alleged:

• Physical pain and mental anguish suffered since 2000 and continuing into the future;

• Reasonable medical expenses incurred since 2000 and continuing into the future;

• Physical impairment suffered since 2000 and continuing into the future;

• Loss of enjoyment of life suffered since 2000 and continuing into the future; and

• Lost earning capacity.14

Based on the damages alleged on the face of Plaintiff s First Amended Petition, Plaintiffs claims

add up to potentially trillions of dollars, and the amount in controversy therefore far exceeds the

$75,000 minimum for diversity jurisdiction.15 Accordingly, all the requirements are met for

removal 28 U.S.C. §1332 and 1441(b).

8. No proper defendants exist. Consequently, there is no need to obtain the consent

to removal of other fraudulently or improperly joined defendants.16

9. All pleadings, process, orders, and other filings in the state court action are

1 n

attached to this notice as required by 28 U.S.C. §1446(a) and Local Rule 81. Below is an index

of such attached documents:

Exhibit 3: Civil Case Information Sheet

Exhibit4: Plaintiffs Original Petition

14 Id. at Page 16.

15 See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (noting that courts generally "consult the state court petition to determine the amount in controversy); St. Paul Reins. Co. Ltd. V. Greenberg, 134F.3d 1250, 1253 (5th Cir. 1998) (same).

16 Jernigan, 989 F.2d at 815.

17 OCIL is unable to provide the list of counsel of record required by Local Rule 81.6 because, according to documents obtained by OCIL from the state court, no parties have yet answered. Consequently, the only counsel of record would be the undersigned and the pro se Plaintiff.

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Exhibit 5: Pro Se Notice

Exhibit 6: Plaintiffs First Amended Petition

Exhibit 7:

Exhibit 8:

Exhibit 9:

Exhibit 10:

Exhibit 11:

Exhibit 12:

Exhibit 13:

Exhibit 14:

Exhibit 15:

Exhibit 16:

Exhibit 17:

Exhibit 18:

Exhibit 19:

Exhibit 20:

Exhibit 21:

Exhibit 22:

Exhibit 23:

Exhibit 24:

Exhibit 25:

Exhibit 26:

Exhibit 27:

Process Request

Process Request

Process Request

Correspondence from Texas Department of Insurance to Plaintiff

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

Citation and Return

(Conoco)

(Crawford & Company)

(OCIL)

(Aetna U.S.)

(Virginia Hubbard/Chevron Phillips)

(James Mulva/Conoco Phillips)

(Cheryl Hartman/USW Local 13-227)

(Jimmy Easton/USW Local 13-227)

(Conoco Phillips)

(Dearborn National)

(TPCIGA)

(Aetna Life)

(Benefit Concepts)

(Judith Rathgeber)

(Mark Megaw/AII Ace Group)

(Metropolitan Life)

(David Heinsohn/Chevron Phillips Chemical)

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Exhibit 28: Citation and Return (Myke Capps/Chevron Phillips Chemical)

Exhibit 29: Citation and Return (Chevron Phillips)

Exhibit 30: Citation and Return (Chevron Phillips)

Exhibit 31: Citation and Return (Chevron Phillips)

Exhibit 32: Citation and Return (Phillips Petroleum)

Exhibit 33: Citation and Return (Conoco Phillips)

Exhibit 34: Citation and Return (Chevron Phillips)

10. Venue is proper in this Court under 28 U.S.C. §1441(a) because this district and

division embrace Brazoria County, Texas, the place where the removed action has been pending.

11. A copy of this Notice of Removal will be filed with the Clerk of the 149th

Judicial District Court of Brazoria County, Texas.

Conclusion and Prayer

For these reasons, Defendant, Oil Company Insurance Limited (OCIL) of Bermuda, asks

the Court to remove the above action, now pending in the 149th Judicial District Court of

Brazoria County, Texas to the United States District Court for the Southern District of Texas,

Houston Division.

Respectfully submitted,

/s/Ronald E. Tianer Ronald E. Tigner Attorney-In-Charge State Bar No. 20028000 Fed. ID No. 3095 E-mail: rtigner@cozen.com

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OF COUNSEL:

Karl A. Schulz kschulz@cozen.com COZEN O'CONNOR 1221 McKinney, Suite 2900 Houston, Texas 77010 Telephone: (832)214-3900 Facsimile: (832) 214-3905

ATTORNEYS FOR DEFENDANT, OIL COMPANY INSURANCE LFMITED (OCIL) OF BERMUDA

CERTIFICATE OFSERVICE

I certify that a true and correct copy of the above and foregoing instrument was sent by certified mail, return receipt requested on this the 16th day of April, 2014 to:

Ms. Dora Ann Burnett ProSe 3607 Lauren Trail Pearland, Texas 77581 doraannswan @att. net

/s/Ronald E. T/'oner Ronald E. Tigner