3:10-cv-03083-CMC -JRM Date Filed 12/02/10 Entry Number 1 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

WILLIAM STEWART, )
)
Plaintiff, )
vs. )
)
3:10-3083-CMC-JRM
Case No. - - - - - - - -
AT&T INC., RADIO SHACK CORP., )
MOTOROLA, INC., )
)
Defendants. )

NOTICE OF REMOVAL

TO THE HONORABLE CLERK AND JUDGES OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA:

PLEASE TAKE NOTICE that Defendant Motorola, Inc. ("Motorola") hereby removes

this action from the Richland County COUli of Common Pleas pursuant to 28 U.S.C. § 1441 and

28 U.S.C. § 1332 because there is complete diversity and the amount in controversy exceeds the

jurisdictional minimum. In suppOli of this Notice of Removal, Motorola states as follows:

BACKGROUND

1. Plaintiff William Stewart filed his Complaint (pro se) on October 1, 2010 in the

Richland County COUli of Common Pleas, bearing docket number 2010CP4006864. (Ex. A,

3:10-3083-CMC-JRM
CompI.) Motorola was served no earlier than November 3, 2010. (Ex. B, Dee DecI. ~ 2.) On

information and belief, Defendants AT&T, Inc. ("AT&T") and Radio Shack Corp. ("Radio

Shack") have not been properly served. This Notice of Removal has been timely filed within

thiliy days of service upon Motorola. See 28 U.S.C. § 1446(b).

2. Plaintiff alleges that he suffered personal injuries as a result of "radiation" emitted

from his cell phone during a single call in October 2007. (Ex. A., CompI. ~ 11.) Specifically,
 3:10-cv-03083-CMC -JRM Date Filed 12/02/10 Entry Number 1 Page 2 of 10

Plaintiff claims that this phone call caused "pelmanent injuries to the nerves and other tissues on

the left side of his head, neck, [and] throat that affected his hearing, vision, speech and other

bodily functions .... " (Id. ~ 13.) Although Plaintiff does not specify individual causes of action

in his Complaint, he purpOlis to asseli claims for "defective design" (id. ~ 5) and "failing to

adequately forewam." (Id. ~ 12(b).)

3. Plaintiff seeks "actual damages and punitive damages .... " (Id. at 2.)

ARGUMENT

I. Complete Diversity of Citizenship Exists.

4. There is complete diversity between the Plaintiff and the named Defendants. 28

U.S.C. § 1332(a). For purposes of diversity jurisdiction, "a corporation shall be deemed to be a

citizen of any State by which it has been incorporated and of the State where it has its principal

place of business .... " 28 U.S.C. § 1332(c)(1).

5. Plaintiff is a resident ofthe State of South Carolina. (Ex. A, Compl. at 2.)

6. Defendant Motorola is a Delaware Corporation with its principal place of

business in the State of Illinois. (Ex. C, South Carolina Secretary of State Website (listing

Motorola' s State of Incorporation as Delaware)); SEC v. Yuen , No. CV 03-4376MRP(PLAX),

2006 WL 1390828, at *28 (C.D. Cal. Mar. 16,2006) ("Motorola is a Delaware corporation with

its principal place of business in Schaumburg, Illinois.").

7. Defendant AT&T is a Delaware corporation with its principal place of business in

the State of Texas. (Ex. D, South Carolina Secretary of State Website (listing AT&T's State of

Incorporation as Delaware)); Stewart v. AT&T Inc., No. C 06-7363 SI, 2007 WL 1031263, at *1

(N.D. Cal. Apr. 3, 2007) ("AT&T is a Delaware corporation with its principal place of business

in San Antonio, Texas.").

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8. Defendant Radio Shack is a Delaware corporation with its principal place of

business in the State of Texas. (Ex. E, South Carolina Secretary of State Website (listing Radio

Shack's State ofIncorporation as Delaware)); Shore v. Tandy Corp., Civ. A. No. 85-4374, 1986

WL 1554, at * 1 (E.D. Pa. Jan. 31, 1986) (Radio Shack "is a citizen of both Delaware and

Texas.").

II. The Amount in Controversy Exceeds the Minimum Required for Diversity
Jurisdiction. l

9. Plaintiff's claims put more than $75,000 at issue, exclusive of interest and costs.

28 U.S.c. § 1332(a). "The test for detelmining the amount in controversy in a diversity

proceeding is the pecuniary result to either patty which a judgment would produce." Hendrix

Ins. Agency, Inc. v. Cont'l Cas. Co., C.A. No. 7:10-2141-HMH, 2010 WL 4608769, at * 1

(D.S.C. Nov. 3, 2010) (internal quotation marks, citation, and brackets omitted). In determining

the amount in controversy, the Comt should consider the allegations raised in the complaint,

including allegations of both actual and punitive damages. JTH Tax, Inc. v. Frashier, -- F.3d --,

2010 WL 4486746, at *2 (4th Cir. Nov. 10,2010) ("Courts generally determine the amount in

controversy by reference to the plaintiff's complaint."); Am. Health & Life Ins. Co. v. Heyward,

272 F. Supp. 2d 578, 581 (D.S.C. 2003) (punitive damages "must be included in the calculation

of the amount in controversy"). "The possible damages recoverable may be shown by the

amounts awarded in other similar cases." Green v. Metal Sales Mfg. Corp., 394 F. Supp. 2d

864,866 (S.D. W. Va. 2005) (citation omitted).

1 Plaintiff's claims have no merit. However, for the purposes of removal, the merit of
Plaintiff's claims is not to be considered; rather, the question is whether Plaintiff's Complaint
puts more than $75,000 at issue. Thus, Motorola discusses the amount put in controversy
without conceding that any such monies can or should be recovered.

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 3:10-cv-03083-CMC -JRM Date Filed 12/02/10 Entry Number 1 Page 4 of 10

10. Although the Complaint does not demand a specific sum and Motorola denies

Plaintiff s allegations, the face of Plaintiff s Complaint demonstrates that the amount in

controversy exceeds the jurisdictional minimum of $75,000.

11. Plaintiff seeks "actual" damages and "punitive damages in an appropriate amount

" (Ex. A, CompI. at 2.) Plaintiff alleges that he suffered "permanent injuries to the nerves

and other tissues on the left side of his head, neck [and] throat . .. ." (Ex. A, CompI. ~ 13.)

Plaintiff claims that these permanent injuries "affected his hearing, vision, speech and other

bodily functions .... " (Id.) Specifically, Plaintiff says that his "ability to hear is impaired," he

"lose[ s] [his] balance," his "memory is worse," and his "ability to speak is impaired "

(Ex. A, CompI. Attach. at 2-3 .)

12. Fmther, as a result of these injuries, Plaintiff allegedly "suffered and will continue

to suffer great pain and mental anguish . . .. " (Ex. A, CompI. ~ 13 .) Plaintiff claims that since

the time of his 2007 cell phone call, he has "felt as though [his] head had been struck repeatedly

by a ball peen hammer. The pain is more long lasting and worse than I ever suffered before,

worse than a constant throbbing headache, severe tooth infection and concussion combined."

(Ex. A, CompI. Attach. at 1.)

13. Plaintiff also claims that he has been forced to "expend monies for doctors' care

and other medical necessities" and that he has "lost much time from his self-employed work

.... " (Ex. A, CompI. ~ 13.) Plaintiff claims: "I have not been able to work or sleep much since

I first used a cellular telephone. I have spent most of my time in bed." (Ex. A, CompI. Attach. at

2.)

14. Cases involving similar claims and injuries illustrate the fact that Plaintiff has put

more than $75,000 at issue. In Bennett v. T-Mobile USA, Inc., 597 F. Supp. 2d 1050,

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 3:10-cv-03083-CMC -JRM Date Filed 12/02/10 Entry Number 1 Page 5 of 10

1051 (C.D. Cal. 2008), the plaintiff alleged that repeated use of his cellular phone caused a

"sudden hearing loss in his right ear, ve11igo, loss of equilibrium, and other personal injuries."

The case was originally filed in Califomia state court, but the defendants removed the case to

federal court "on the basis of diversity jurisdiction." Id. at 1051-53. By dismissing the

complaint on the merits, the cOUl1 recognized that federal jurisdiction was proper. Id.

(dismissing complaint as preempted by federal law).

15. FUl1her, juries in this COUl1 and in this Circuit have awarded damages in excess

of $75,000 where, due to a defendant's purported misconduct, the plaintiff suffers injuries

similar to those complained of by Plaintiff in this case. For example, in a case where the

plaintiff suffered permanent ve11igo and headaches after a car crash (as well as a concussion,

cervical strain, and bruising incident to the accident), the jury awarded plaintiff $750,000. Aylor

v. HJ Holtz & Son, No. CL09-1565-2, 2009 WL 6297161 (Va. Cir. Ct. Dec. 18,2009); see also

King v. SKR Enters., Inc., No. 05CVS005172, 2006 WL 4542672 (N.C Dist. Ct. Sept. 2006)

(awarding $115,000 in a premises liability case where the plaintiff alleged that he suffered pm1ial

hearing loss, a skull fracture, temporary visual impairment, and facial and head lacerations with

scaning); Anderson v. Blue Ribbon Taxicab Co., No. 02CP405431, 2004 WL 5392442 (S.C. Ct.

C.P. Jan. 29,2004) (awarding $540,000 after plaintiff suffered pm1ialloss of vision as a result of

a defective airbag deployment); Shover v. Vogel Peterson Furniture Co., No. CAL93-04699,

1998 WL 633011 (Md. Cir. Ct. Apr. 1998) (awarding $100,228 after plaintiff suffered cervical

strain, head contusions, and other minor contusions after he fell off a defective office chair).

16. The fact that Plaintiff seeks punitive damages here-even though not

appropriate-confirms that more than $75,000 is in controversy. To establish the probable

extent of punitive damages, courts in this Circuit consider the amount of damages that have been

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 3:10-cv-03083-CMC -JRM Date Filed 12/02/10 Entry Number 1 Page 6 of 10

awarded on analogous claims. See, e.g., Green, 394 F. Supp. 2d at 867. Punitive damages

awards in product-defect and failure-to-warn cases in this Circuit have exceeded $75,000. See,

e.g. , Dudley v. Bungee Int'l MIg. Corp. , No. 93-0021-C, 1994 WL 729495 (W.D. Va. 1994)

(punitive damages award of $350,000 for defective bungee cord).

III. The Other Named Defendants Consent to Removal.

17. On infOlmation and belief, as of the date of this filing, Defendants AT&T and

Radio Shack have not been properly served with Plaintiffs Complaint. However, out of an

abundance of caution, counsel for Motorola has sought and obtained consent from Defendants

AT&T and Radio Shack to file this Notice of Removal. A declaration reflecting AT&T's

consent is attached as Exhibit F. (Ex. F, Duffy Decl. ~ 5.) Radio Shack intends to separately file

a consent to removal.

IV. The Applicable Procedural Requirements Have Been or Will Be Satisfied.

18. Pursuant to 28 U.S.C. § 1446(a), Motorola has attached hereto as Exhibit A a

copy of all process, pleadings, and orders served on Motorola in the state court action.

19. Pursuant to 28 U.S.c. § 1446(d), upon filing this motion, Motorola will promptly

provide Plaintiff with written notice of this Notice of Removal and will file a copy of this Notice

with the clerk of the Richland County Court of Common Pleas.

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 3:10-cv-03083-CMC -JRM Date Filed 12/02/10 Entry Number 1 Page 7 of 10

Dated: December 2, 2010 Respectfully submitted,

JOHNSON, TOAL & BATTISTE, P.A.

For Motorola, Inc.

I.S. Leevy Johnson, Fe

1615 Barnwell Street
Columbia, SC 29201
Telephone: (866) 216-9700
Facsimile: (803) 252-9102
islj @jtbpa.com

TelTence J. Dee, P.c.

Michael B. Slade
Daniel R. Lombard
KIRKLAND & ELLIS LLP
300 N011h LaSalle Street
Chicago, Illinois 60654
Telephone: (312) 862-2000
Facsimile: (312) 862-2200
[email protected]
michael. [email protected]
[email protected]

Counsel for Defendant Motorola, Inc.

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 3:10-cv-03083-CMC -JRM Date Filed 12/02/10 Entry Number 1 Page 8 of 10

STATE OF SOUTH CAROLINA

COUNTY OF RICHLAND
IN THE COURT OF COMMON PLEAS

WILLIAM STEWART, )
)
Plaintiff, )
)
v. ) Civil Action No. 201OCP4006864
)
AT&T INC., RADIO SHACK CORP., )
and MOTOROLA INC., )
) r.; ,...."

Defendants. ) ~- = AJ
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NOTICE OF FILING NOTICE OF REMOVAL N
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TO: Jeanette W. McBride <n ;:-' :Ji:: -
Clerk of Court
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Richland County Judicial Center 0 a -::
rn
P.O. Box 2766
Columbia, SC 29202

William Stewart
1011 Walnut Street
Columbia, SC 29205-1016

PLEASE TAKE NOTICE that Motorola, Inc., a named Defendant in this action, formerly

pending as civil action number 2010CP4006864 in the Richland County Court of Common

Pleas, has this date filed a Notice of Removal of this action, a copy of which is attached hereto as

Exhibit 1, in the Office of the Clerk of the United States District Court for the District of South

Carolina. See 28 U.S.C. § 1441 et seq,

 3:10-cv-03083-CMC -JRM Date Filed 12/02/10 Entry Number 1 Page 9 of 10

Dated: December 2, 2010 Respectfully submitted,

JOHNSON, TOAL & BATTISTE, P.A.

For Motorola, Inc .

. Leevy Johnson
1615 Barnwell Street
Columbia, SC 29201
Telephone: (866) 216-9700
Facsimile: (803) 252-9102
[email protected]

Terrence 1. Dee, P.C.

Michael B. Slade
Daniel R. Lombard
KIRKLAND & ELLIS LLP
300 North LaSalle Street
Chicago, Illinois 60654
Telephone: (312) 862-2000
Facsimile: (312) 862-2200
[email protected]
[email protected]
[email protected]

Counsel for Defendant Motorola, Inc.

2
 3:10-cv-03083-CMC -JRM Date Filed 12/02/10 Entry Number 1 Page 10 of 10

CERTIFICATE OF SERVICE

I hereby certify that on December 2, 2010, a copy of the foregoing document was this

date served upon the following by placing a copy of the same in the United States Mail, postage

prepaid, and sent to his last known address as follows:

Mr. William Stewart

1011 Walnut Street
Columbia, SC 29205-1016

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