Case 2:14-cv-08761-JFW-JC Document 18 Filed 12/15/14 Page 1 of 8 Page ID #:270

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David R. Keesling, Pro Hac Vice

Keesling Law Group, PLLC
401 S. Boston Ave., Suite 450
Tulsa, OK 74103
(918) 924-5101 Phone
(918) 512-4888 Fax
David@KLGattorneys.com
Steven A. Fink, CA Bar No. 93762
Law Offices of Steven A. Fink
13 Corporate Plaza Dr., Suite 150
Newport Beach, CA 92660
(949) 706-5900 Phone
(949) 706-5901 Fax
sfink@stevefinklaw.com
Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA WESTERN DISTRICT

CLARK CARR, on his own behalf and on Case No: CV14-8761-JFW-JCT
behalf of a class of similarly situated
persons,

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Plaintiff,

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vs.

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NATIONAL ASSOCIATION OF
FORENSIC COUNSELORS, INC, a
Nevada Corporation; NATIONAL
ASSOCIATION OF FORENSIC
COUNSELORS; AMERICAN
ACADEMY OF CERTIFIED FORENSIC
COUNSELORS d/b/a AMERICAN
COLLEGE OF CERTIFIED FORENSIC
COUNSELORS, a Nevada Corporation;
KARLA DEISLER TAYLOR; FRANCIS
DEISLER aka FRANK JOHN PALANI;
and DOES 1-10,

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DEFENDANTS JOINT RESPONSE IN

OPPOSITION TO PLAINTIFFS
MOTION FOR REMAND AND FOR
ATTORNEYS FEES; MEMORANDOM
OF POINTS AND AUTHORITIES.

JUDGE: Hon. John F. Walter

Hearing Date:
Time:
Courtroom:

January 5, 2015
1:30 p.m.
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Defendants.

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DEFENDANTS JOINT RESPONSE IN OPPOSITION TO PLAINTIFFS

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MOTION FOR REMAND AND FOR ATTORNEYS FEES

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Defendants National Association of Forensic Counselors, Inc. (NAFC),

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American Academy of Certified Forensic Counselors d/b/a American College of

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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO REMAND AND FOR ATTORNEYS FEES

Case 2:14-cv-08761-JFW-JC Document 18 Filed 12/15/14 Page 2 of 8 Page ID #:271

Certified Forensic Counselors (ACCFC), Karla Taylor Deisler, and Frank Deisler

(collectively Defendants), hereby file their joint Opposition to Plaintiffs Motion for

Remand and For Attorneys Fees. In Support of their Opposition, Defendants hereby

state as follows:

INTRODUCTION AND BACKGROUND

Plaintiffs version of the underlying facts of this case is overly simplistic. The

subject matter of this case, the Defendants named in this case, and the timing of the case

are part of a calculated effort to intimidate and fatigue the Defendants. At best (if at all),

Plaintiffs baseless claims should be counterclaims in the related case filed in the Eastern

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District of Oklahoma. As stated previously in Defendants NAFC and ACCFCs Motion

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to Dismiss [Dkt. 6], Plaintiff Clark Carrs C.C.D.C. certification is also the subject of

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currently pending litigation between Plaintiff and the Entity Defendants in the matter of

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National Association of Forensic Counselors, Inc., et al. v. Narconon International, Inc.,

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et al., which was filed on May 16, 2014 in the United States District Court for the Eastern

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District of Oklahoma (the NAFC Case). A copy of the Complaint in the NAFC Case is

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attached to Defendants Notice of Pendency of Other Action [Dkt. 2].

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The NAFC case involves eighty-two defendants all associated with the Church of

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Scientology and its affiliated drug rehabilitation program Narconon and their theft of

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NAFC and ACCFCs logos, trademarks, certifications and established business

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reputation to bait vulnerable victims into the Narconon Network and consequently the

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Church of Scientology. Clark Carr is the President of Narconon International, the entity

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that leads the Narconon Network through Narconons flagship facility in Oklahoma (thus

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the filing in the United States District Court for the Eastern District of Oklahoma).

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Additionally, Carr personally participated in the scheme by falsely attaching

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C.C.D.C. to his name prior to ever receiving the certification from NAFC and then

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continuing to falsely advertise his certification after he allowed it to expire. [Dkt. 2-2].

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Carrs claims concerning the validity of the NAFC certifications directly relate to the

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claims made by the Entity Defendants in the NAFC Case in Oklahoma. Clearly, there is

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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO REMAND AND FOR ATTORNEYS FEES

Case 2:14-cv-08761-JFW-JC Document 18 Filed 12/15/14 Page 3 of 8 Page ID #:272

much more to this case than the bare bones allegations contained in Plaintiffs Complaint,

precipitating Defendants filing of its Notice of Removal.

MEMORANDUM OF POINTS AND AUTHORITIES

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I. THIS MATTER WAS APPROPRIATELY REMOVED

In its Motion, Plaintiff attempts to distract the Court by making weak policy

arguments about Defendants alleged compounding of their purported error, but

entirely ignores the authority cited by Defendant in its Amended Notice of Removal,

which holds that notice of removal may be freely amended so long as the notice sets forth

the same grounds.

Smiley v. Citibank (South Dakota), N.A., 863 F.Supp. 1156, 1158-

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1159 (C.D.Cal. 1993). Defendants incorporate by reference its Amended Notice of

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Removal [Dkt. 7] in its entirety. Defendants stand upon the timing of the service of the

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Supplemental Notice, the amount of controversy, and the basis for the calculations as

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stated in its Amended Notice of Removal [Dkt. 7].

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Defendants aver that they must show the amount in controversy by a

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preponderance of evidence, but take issue with Plaintiffs patently false and misleading

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statement that the party seeking remand must present the court with summary-

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judgment-type evidence relevant to the amount in controversy at the time of removal.

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[Dkt. 17 at Page 11 on Lines 12-13 (emphasis added)], citing to Singer v. State Farm

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Mutual Automobile Insurance Co., 116 F.3d 373, 377 (9th Cir. 1997). However, a quick

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preview of the Singer case reveals that the court stated that it may require parties to

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submit summary-judgment-type evidence relevant to the amount in controversy at the

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time of removal. Thus, Plaintiff has willfully misstated the law on not just one, but two

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fronts: (1) stating that the party must present evidence, rather than may; and (2) the

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submission of evidence is to be by BOTH parties, only after the court has made a

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facially apparent determination to look at the face of the Complaint. Id. (citing Allen v.

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R&H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995)); See Jimenez v. Allstate Ins.

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Co., No. CV 10-8486, 2011 WL 65764, * 2 (C.D.Cal. Jan. 7, 2011). If the facially

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apparent determination fails, the Court can look at facts in the removal petition, and if

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that fails, at that point the Court may request the summary-judgment-type evidence
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from both the parties. As the Court has not yet made a determination that the facially

apparent determination has failed and that the facts stated in the removal petition do not

establish the requisite amount in controversy, only then would the summary-judgment-

type evidence be requested.

Defendants calculations contained in its Amended Notice of Removal, contrary to

Plaintiffs allegations, were not merely based on speculation and conjecture, but rather

were reasonable, conservative, and good-faith calculations based on four well-founded

elements that had been pulled from Plaintiffs Complaint: 1) restitution of membership

fees, 2) failed salary increases based on the alleged worthless certification, 3)

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attorneys fees in an estimated amount of 25% of the compensatory damages, and 4)

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punitive damages in the amount of the compensatory damages alleged. See Defendants

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Amended Notice of Removal [Dkt. 7]. Plaintiffs Prayer for Relief in the Complaint

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expressly seeks damages for restitution of membership fees in paragraph 5 and then

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separately and distinctly seeks damages according to proof in paragraph 6.

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comprehensive review of the Complaint shows the only other damages to be sought

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arises out of Plaintiffs characterizations of the certifications as worthless. [Complaint

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at 21].

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Defendants provide the Court with facts evidencing the difference in salary in

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California between a certified addictions counselor and an uncertified addictions

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counselor. If the certification is, in fact, deemed worthless, the difference in salary is a

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clear manner of calculating such damages. Further, there is no contrary evidence and no

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allegation that Plaintiff seeks less than that calculated by Defendants. See Jimenez 2011

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WL 499390, at *3. Despite Plaintiffs unsupportable statements to the contrary, the

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Court is well-positioned to consider such facts in the removal petition. See Singer, 116

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F.3d at 377; See also Jimenez, 2011 WL 499390, at 3 (a removing defendant is not

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required to research, state, and prove the plaintiffs claims for damages, but instead may

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rely on good faith calculations based on evidence wherever possible).

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Plaintiff then attempts to argue that Defendants Amended Notice of Removal is

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untimely and, therefore, should be denied because (Plaintiff contends) Defendants raised
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a new ground for removal. Defendants wholly disagree with Plaintiffs novel contention.

First, as stated in the Amended Notice of Removal, the amendment was filed within the

thirty-day window and is freely allowed. Second, Defendants theory of removal is, and

always will be, based on diversity jurisdiction pursuant to 28 U.S.C. 1332. The only

change in the Amended Notice of Removal is regarding the calculation of the amount in

controversy required to establish removal based on diversity jurisdiction, which is a

permissible modification to allow amendment to a notice of removal. See Cohn v.

Petsmart, Inc., 281 F.3d 837, 839-40 n 1 (9th Cir. 2002).

Defendants maintain that the Amended Notice of Removal was filed timely, for

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the reasons set forth in the Amended Notice for Removal. [Dkt. 7]. However, assuming

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arguendo the Amended Notice of Removal is deemed untimely filed, amendment should

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be freely given. Smiley, 863 F.Supp. at 1158-59, citing Richardson v. United

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Steelworkers of America, 864 F.2d 1162, 1164 (5th Cir. 1989, citing C. WRIGHT, A.

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MILLER, E. COOPER, 14A FEDERAL PRACTICE & PROCEDURE 3733 (2d ed.1985). If this

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Court determines that the 30-day period had expired prior to Defendants filing its

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Amended Notice of Removal, the trend is toward permitting amendment even beyond the

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30-day period.

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But the cases to the contrary, which have allowed the notice to be amended

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for that purpose after the 30-day period has expired and even as late as

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appeal, are more consistent with the general liberal attitude toward pleading

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amendments found in Federal Civil Rule 15, and with Section 1653 of Title

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amended, upon terms, in either the trial or appellate court.

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Id. This permissive standard has been adopted in Cohn v. Petsmart, Inc., in which

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the 9th Circuit treated the information contained in Defendants Opposition to the

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Plaintiffs Motion to Remand as an Amended Notice of Removal. 281 F. 3d 837, 840 n.

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1 (9th Cir. 2001) (citing Willingham v. Morgan, 395 U.S. 402, 407 n. 3, 89 S.Ct. 1813, 23

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L.Ed.2d 396 (1969) (it is proper to treat the removal petition as if it had been amended

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to include the relevant information contained in the later-filed affidavits). As such, if

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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO REMAND AND FOR ATTORNEYS FEES

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this Court determines that the 30-day period had expired, the Court should permit the

amendment under the applicable authority.

II. THE REQUEST FOR ATTORNEYS FEES SHOULD BE DENIED

The removal statute provides the court with discretion to decide whether to grant

attorneys fees on remand. 28 U.S.C. 1447(c). The U.S. Supreme Court held that a

court abuses its discretion in awarding attorneys fees unless the removing party lacked

an objectively reasonable basis for seeking removal. Martin v. Franklin Capital Corp.,

546 U.S. 132, 141, 126 S.Ct. 704, 711, 163 L.Ed.2d 547 (2005). Where an objectively

reasonable basis exists, fees should be denied. Id. (emphasis added); See United Steel,

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Paper & Forestry, Rubber, Mfg v. ConocoPhillips Co., No. CV 09-550 PSG, 2009 WL

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3735408, *3 (C.D.Cal. Nov. 4, 2009) (the mere fact a motion to remand is granted does

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not necessarily entitled plaintiff to fees).

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As chronicled in Defendants Amended Notice of Removal and herein, Defendants

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described more than sufficient facts and included detailed evidence concerning the

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amount in controversy in this matter. These calculations are based upon the separate line

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items provided in Plaintiffs own Complaint.

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damages, but provides no calculation upon which the court may rely. Defendants set

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forth reasonable calculations for these damages, supported by evidence.

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Defendants calculations show that the amount in controversy more than doubles the

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minimum to establish jurisdiction in this Court. In response, Plaintiff does not provide

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its own calculation for these damages, but instead asks the Court to ignore an entire

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category of damages as if they did not exist. Ultimately, Defendants calculations are

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reasonable and support the removal of this action.

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determine this case should be remanded, an award of attorneys fees is unsupportable.

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Plaintiff seeks two distinct types of

Moreover,

Nonetheless, should the Court

CONCLUSION

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WHEREFORE, Defendants National Association of Forensic Counselors, Inc. and

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American Academy of Certified Forensic Counselors, Inc. respectfully pray the Court

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deny Plaintiffs Motion to Remand, including Plaintiffs request for fees, and for such

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further relief as the Court deems just and proper.

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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO REMAND AND FOR ATTORNEYS FEES

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DATED: December 15, 2014.

Respectfully submitted,

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s/ David R. Keesling

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David R. Keesling, pro hac vice

KEESLING LAW GROUP, PLLC
401 S. Boston Ave, Suite 401
Tulsa, OK 74104
(918) 924-5101 (Telephone)
(918) 512-4888 (Fax)
david@klgattorneys.com

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And

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Steven A. Fink, CA Bar No. 93762

Law Offices of Steven A. Fink
13 Corporate Plaza Dr., Suite 150
Newport Beach, CA 92660
(949) 706-5900 Phone
(949) 706-5901 Fax
sfink@stevefinklaw.com

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Attorneys for Defendants

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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO REMAND AND FOR ATTORNEYS FEES

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CERTIFICATE OF SERVICE

I hereby certify that on December 15, 2014, I electronically transmitted the

attached document to the Clerk of Court using the ECF System for filing. Based on the

records currently on file, the Clerk of Court will transmit a Notice of Electronic Filing to

the following ECF registrants:

David C. Scheper (dscheper@scheperkim.com)

William H. Forman (wforman@scheperkim.com)

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s/ David R. Keesling
David R. Keesling

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DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO REMAND AND FOR ATTORNEYS FEES