March 30, 2008
CCU Motion to Remand
Download ccu_emergency_motion_to_remand.pdf Lot's of bold -- hard to see how CCU wins this one since CC Media is not a true party to the merger agreement.
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Tacos and hot sauce all-'round !
1. Defendant has the burden to prove fraudulent joinder.
2. Typically, it is the improper joinder of a non-diverse defendant that triggers removal, rather than a non-diverse plaintiff. Although cases regarding non-diverse plaintiffs are sparse, the Court sees no reason not to evaluate this case under the improper joinder doctrine,even though it is a plaintiff, rather than a defendants, that was allegedly improperly joined.
3. In contrast to what the banks say, the issue is whether CC Media has any viable cause of action at all. Cc Media's only claim is torotious interference with contract. The contract at issue is the Merger Agreement, which is the only contract to which CC Media is a party. The Court cannot say that CC Media has no possibility of recovering on that claim.
4. Defendants contend that CC media has no cause of action in Texas, based on a forum selection clause. But this contention is not dispositive. The most that can be said about this contention is that it raises "uncertainties." But all "uncertainties" are to be resolved in favor of the Plaintiffs, since the Defendants have the burden to show federal jurisdiction. To do otherwise would be to "pre-try" CC Media's claim in favor of the Defendants, which would be improper.
Motion to remand granted; case is remanded back to Bexar County Court.
Posted by: mike | Apr 2, 2008 2:57:37 PM