`
`IN THE UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF GEORGIA
`ATHENS DIVISION
`
`DIANE CARTEY,
`
`Plaintiff,
`
`v.
`
`CIVIL ACTION FILE NO.
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`3:20-CV-00133-CAR
`
`NUTRIEN AG SOLUTIONS and
`AERIAL SPECIALISTS, INC.,
`
`Defendants.
`
`REMOVED FROM SUPERIOR
`COURT OF MORGAN COUNTY,
`CIVIL ACTION FILE NO.
`2020-SU-CA-182
`
`DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION
`FOR REMAND & STIPULATION OF DAMAGES
`
`COMES NOW, NUTRIEN AG SOLUTIONS and AERIAL
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`SPECIALISTS, INC., Defendants in the above-styled matter (hereinafter
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`"Defendants"), and responds to the Plaintiff's Motion for Remand & Stipulation of
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`Damages showing the Court as follows:
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`INTRODUCTION
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` In her Motion to Remand, Plaintiff does not dispute that complete diversity
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`of citizenship exists between the parties. Instead, Plaintiff's primary argument is
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`that her Amended Complaint, which added nothing more than a claim for punitive
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`damages and attorneys' fees, does not allege an amount in controversy in excess of
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`$75,000.00. A plain reading of Plaintiff's Complaint compared to her Amended
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`Complaint shows she intentionally pled punitive damages and attorneys' fees in
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 2 of 17
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`addition to special damages. That, coupled with Plaintiff's pre-suit demands,
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`demonstrate Plaintiff intended to allege amounts for punitive damages in addition
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`to a high five-figure amount for special damages. This puts the amount in
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`controversy well above the jurisdictional requirement. Furthermore, the pleadings
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`and demands rebut Plaintiff's attempt to stipulate that her damages will not exceed
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`$74,999.99, which should not be considered that this juncture.
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`Moreover, this case presents significant issues involving federal law. As
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`discussed below, the Federal Aviation Act (hereinafter the "FAA") preempts state
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`law because it was intended to regulate airspace and aircraft. Furthermore, the
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`FAA created a negligence standard that differs from Georgia's standard for
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`negligence. Because negligence is instrumental in Plaintiff proving her case,
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`federal law preempts state law in this area. For these reasons and the reasons
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`discussed below, the Court should deny Plaintiff's Motion to Remand.
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`FACTUAL BACKGROUND
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` This cases arises out of an alleged loss of blueberry plants in Plaintiff's front
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`yard following a purported misapplication of herbicides onto Plaintiff's property by
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`a pilot employed by Aerial Specialists, Inc. (hereinafter "Aerial Specialists").
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`Plaintiff originally filed a 10-count Complaint alleging Defendants were negligent
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`in applying the herbicides to an adjacent property and, as a result, Plaintiff's
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`property "sustained severe injuries – both economic and otherwise" and she
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`2
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 3 of 17
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`"incurred expenses and damages of $74,999.99 or less." (Pl.'s Compl. ¶¶ 5-10).
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`The original Complaint did not include any language alleging a claim for punitive
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`damages. In fact, Plaintiff only prayed for "a sufficient amount to compensate
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`Plaintiff for her property destruction, suffering and damages." (See id.).
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`After Defendants responded to Plaintiff's written discovery requests,
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`Plaintiff filed an Amended Complaint with the exact same language as the
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`original Complaint with three substantive (3) additions. First, Plaintiff alleged
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`O.C.G.A. § 51-12-5.1(b) was "in force in the State of Georgia at the time of the
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`complained incident." (Pl.'s Am. Compl. ¶ 9). Second, Plaintiff added a new,
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`separate paragraph alleging Defendants' "actions that day … raise the presumption
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`of conscious indifference to the consequences." (Id. at ¶ 11). Finally, Plaintiff
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`added a new, separate subparagraph to the "WHEREFORE" paragraph of her
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`Complaint praying for attorneys' fees and punitive damages due to Defendants'
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`"overwhelmingly negligent actions sufficient to raise the presumption of a
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`conscious indifference to consequences and their unnecessary withholding of
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`repayment for property damage incurred." (See id.). Plaintiff did not alter her
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`allegation and prayer for special damages.1 Rather, Plaintiff alleged punitive
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`damages and attorneys' fees in addition to her claim for special damages.
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`1 Paragraph 10 of Plaintiff's Amended Complaint mirrored Paragraph 10 of the original Complaint, which
`alleged "she incurred expenses and damages of $74,999.00 or less.". (Pl.'s Am. Compl. ¶ 10).
`3
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 4 of 17
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`Plaintiff included the stipulation in Paragraph of the original Complaint to
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`avoid federal jurisdiction under 29 U.S.C. 1332(a). Plaintiff's Amended Complaint
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`contained the exact same stipulation, but alleged additional allegations for
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`punitive damages and attorneys' fees. Plaintiff's new allegations, which were pled
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`on top of and in addition to her claim for special damages, clearly allow for a
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`presumption that the amount in controversy exceeds $75,000.00. Even Plaintiff
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`believed her claim to be worth more than $75,000.00 prior to filing suit.2
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`Along with Plaintiff's Motion to Remand, she filed a Stipulation of Damages
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`stating that she has not suffered damages in excess of $74,999.00 and she will not
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`accept an award in excess thereof. Plaintiff's Stipulation of Damages suffers from
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`the same ambiguity as her Amended Complaint – she states she suffered no
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`damages beyond $74,999.00. She does not, however, say she is not entitled to an
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`award of punitive damages, attorneys' fees, or costs, none of which are considered
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`damages a plaintiff "suffers" under Georgia law. Nevertheless, as Plaintiff points
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`out in her Motion, post-removal stipulations do not deprive federal district courts
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`of jurisdiction. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
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`292, 58 S.Ct. 586. ("And though, as here, the plaintiff, after removal, by
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`stipulation, by affidavit, or by amendment of his pleadings, reduces the claim
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`2 On January 31, 2020, Plaintiff sent Defendants a demand in the amount of $500,000.00. The demand shows
`Plaintiff calculated her "expenses and damages" as $56,726.60 to $74,046.63, but that she was entitled to an
`additional amount. On May 21, 2020, Plaintiff reduced her demand to $480,000.00. (See Pl.'s January 31, 2020 and
`May 21, 2020 Demands, attached hereto as Exhibits "A" and "B").
`4
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 5 of 17
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`below the requisite amount, this does not deprive the district court of jurisdiction.")
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`This is equally true when her pre-suit demands rebut the Stipulation of Damages.
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`See Southern Ins. Co. of Virginia v. Karrer, 2011 WL 1100030, *3 (N.D.Ga. Mar.
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`22, 2011) ("In a removal case, the Eleventh Circuit noted that courts have
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`considered demand letters in determining questions concerning the amount in
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`controversy.")
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`Additionally, federal question jurisdiction exists here. Plaintiff's Amended
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`Complaint alleges that Aerial Specialists "was operating a helicopter equipped with
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`an herbicide spraying apparatus on the property adjacent to Plaintiff's property."
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`(Pl.'s Am. Complaint ¶ 5). Plaintiff further alleges that Aerial Specialists
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`"trespassed onto the airspace over Plaintiff's property while continuing to emit the
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`relevant herbicides, destroying the organic garden on Plaintiff's property." (Id. at ¶
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`6). As discussed below, the FAA, which encompasses the safe operation of
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`aircraft, preempts state law. This case involves allegations against a helicopter pilot
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`for negligent operation in airspace over Plaintiff's property. This Court, therefore,
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`has federal question jurisdiction over this case. For these reasons and the reasons
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`discussed herein, Plaintiff's Motion to Remand should be denied.
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`ARGUMENT AND CITATION OF AUTHORITY
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` Defendants properly removed this case to federal court and Plaintiff's
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`Motion to Remand should be denied. Plaintiff concedes her lawsuit involves
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`5
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 6 of 17
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`citizens of different states. And, as discussed below, the amount in controversy
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`exceeds $75,000.00.
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`Beyond that, Plaintiff’s Amended Complaint presents claims that necessarily
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`involve federal law. Under the notice pleading standards set forth in FRCP 8,
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`Defendants are on notice of a claim that involves a very substantial question under
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`49 U.S.C. § 40101, et seq.
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`A. Standard For Removal to Federal Court.
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` State court lawsuits that raise a federal question or that involve citizens of
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`different states and that seek in excess of $75,000 may be removed to federal court.
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`28 U.S.C. § 1446. A plaintiff may not, through artful pleadings, deprive a
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`defendant of its right to a federal forum. Dufel v. Stirewalt, No. CV 214-73, 2015
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`WL 1202305, at *2 (S.D. Ga. Mar. 16, 2015.) When a federal court would have
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`had original jurisdiction over a case filed in state court, the defendant is entitled to
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`remove that case to federal court. 28 U.S.C. § 1441(a).
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` B. The Amount In Controversy Exceeds $75,000.
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`The removing defendant has the burden of showing that the amount in
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`controversy, more likely than not, exceeds $75,000. Roe v. Michelin North
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`America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (affirming denial of motion to
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`remand). Whether a case is removable is determined by the Complaint at the time
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`of removal and subsequent acts do not divest the district court of jurisdiction.
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`6
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 7 of 17
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`Freeport–McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 428, 111 S.Ct. 858,
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`860, 112 L.Ed.2d 951 (1991); St. Paul Mercury, 303 U.S. at 293; Vega v. T-Mobile
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`USA, Inc., 564 F.3d 1256, 1268 n.12 (11th Cir. 2009).
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`A removing defendant is permitted to provide additional evidence
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`concerning the amount in controversy in response to a motion to remand. Roe, 613
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`F.3d at 1061. The Court does not “suspend reality or shelve common sense in
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`determining” whether the Complaint satisfies the jurisdictional amount. Pretka v.
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`Kolter City Plaza II, Inc., 608 F.3d 744, 770 (11th Cir. 2010) (reversing order to
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`remand).
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`“The jurisdictional fact in this case is not whether the damages are greater
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`than the requisite amount, but whether a fact finder might legally conclude that
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`they are: In other words, an amount that a plaintiff claims is not ‘in controversy’ if
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`no fact finder could legally award it.” Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir.
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`2002). “[T]he plaintiffs’ likelihood of success on the merits is largely irrelevant to
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`the court's jurisdiction because the pertinent question is what is in controversy in
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`the case, not how much the plaintiffs are ultimately likely to recover.” Pretka, 608
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`F.3d at 751. Here, the allegations of the Amended Complaint are sufficient for the
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`Court to determine the amount in controversy is met.
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` While the removing defendant is required to establish a likelihood that the
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`amount in controversy exceeds $75,000, it “is not required to prove the amount in
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`7
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 8 of 17
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`controversy beyond all doubt or to banish all uncertainty about it.” Pretka, 608
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`F.3d at 754.
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`Because Plaintiff amended her Complaint to include additional claims for
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`punitive damages and attorneys' fees, the amount in controversy exceeds
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`$75,000.00 in this case. First, Plaintiff's claimed losses as calculated in her initial
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`demand are $56,726.60 to $74,046.63, which purportedly consists of lost profits,
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`replacement plants, and labor. (Ex. A, p. 5). This is strictly the "expenses and
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`damages" referenced in Paragraph 10 of the Amended Complaint. (Pl.'s Am.
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`Compl. ¶ 10).
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`Plaintiff then goes on to allege punitive damages separately from the special
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`damages alleged in Paragraph 10. (Pl.'s Am. Compl. ¶ 11). Under O.C.G.A. § 51-
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`12-5.1(b), punitive damages may be awarded in tort actions where “it is proven by
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`clear and convincing evidence that the defendant's actions showed willful
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`misconduct, malice, fraud, wantonness, oppression, or that entire want of care
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`which would raise the presumption of conscious indifference to consequences.” “A
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`conscious indifference to consequences relates to an intentional disregard of the
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`rights of another.” Tyler v. Lincoln, 272 Ga. 118, 120 (1), 527 S.E.2d 180 (2000);
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`see also Oglethorpe Power Corp. v. Sheriff, 210 Ga.App. 299, 301, 436 S.E.2d 14
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`(1993). Trespass is an intentional act which may authorize a claim for punitive
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`damages. See Tyler, 272 Ga. at 120.
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`8
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 9 of 17
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`Here, Plaintiff claims Aerial Specialists "trespass[ed] over Plaintiff's
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`property via air," which alleges an intentional act on the part of Defendants. (Pl.'s
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`Am. Compl. ¶ 8). If Defendants are found to have trespasses over Plaintiff's
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`property, Plaintiff may be entitled to punitive damages. Where actual and punitive
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`damages are alleged and recoverable, punitive damages are counted when
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`assessing the amount in controversy. Swafford v. Transit Casualty Co., 486 F.
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`Supp. 175, 177 (N.D. Ga. 1980). Punitive damages are "private fines levied by
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`civil juries to punish reprehensible conduct and to deter its future occurrence.”
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`Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789
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`(1974); Moore v. Thompson 255 Ga. 236, 237, 336 S.E.2d 749 (1985); see also
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`O.C.G.A. § 51-12-5.1(a); Brown & Williamson Tobacco Corporation v. Gault, 280
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`Ga. 420, 627 S.E.2d 549 (2006). Special damages, on the other hand, are those
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`which flow from tortious conduct and must be proven in a specific amount.
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`O.C.G.A. § 51-12-2. Special damages and punitive damages are treated as distinct,
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`separate classes of damages under Georgia law. Indeed, punitive damages must be
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`pled separately and with specificity. See O.C.G.A. § 51-12-5.1(d)(1). As such, a
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`claim for punitive damages cannot be included in or inferred by language making
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`only a claim for compensatory damages.
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`Plaintiff's demand letters paint a clear picture of the amount of damages
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`Plaintiff believed she was entitled to when she filed her Complaint. Plaintiff first
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`9
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 10 of 17
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`sent a demand letter on January 21, 2020 for $500,000.00. As stated in that
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`demand, Plaintiff alleged an "amount of damages between $56,726.60 and
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`$74,046.63." (Ex. A, p. 3). The demand goes on to state that
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`certain punitive elements related to the handling of this matter have
`come to our attention that would substantially compound the
`damages warranted if timely settlement is not reached. The present
`demand does not reflect these additional considerations, but they will
`certainly be reflected in future proceedings if necessitated by delay.
`(Id.) (emphasis added). The demand shows that the "damages warranted" are
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`comprised of lost profits from the initial crop loss, lost profits from soil inactivity,
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`replacement plants, and labor. (Id. at p. 5). The "damages warranted" are
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`indisputably the "damages and expenses" Plaintiff is alleged to have suffered in her
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`Complaint, i.e., her special damages. The "punitive elements" in the demand allude
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`to Plaintiff's claim for punitive damages, which was not made until she filed her
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`Amended Complaint. It is clear that Plaintiff meant for the punitive damages and
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`attorneys' fees claim to be more than and in addition to her special damages claim.
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`On May 21, 2020, Plaintiff revised her demand for $480,000.00. In that
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`demand, Plaintiff cited "witness testimony and evidence" that Defendants' pilot
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`"acted in a deliberated and dangerous manner." (Ex. B, p. 1). Plaintiff further states
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`that "the initial demand [of $500,000.00] was reasonable and justified." (Id.)
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`10
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 11 of 17
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`(emphasis added). Plaintiff doubled down on her belief that her claim was worth
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`well in excess of $75,000.00 with two (2) demands.
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`Plaintiff's Complaint, Amended Complaint, and prior demands make it clear
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`that Plaintiff alleged her special damages to be slightly under the amount in
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`controversy requirement of $75,000.00. Those same pleadings and demands,
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`however, make it patently obvious that Plaintiff believed her claim was worth more
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`than six (6) times her special damages. Plaintiff contemplated having a claim for
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`punitive damages before filing her Complaint, and certainly before amending her
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`Complaint. Her attempt to now stipulate to a lesser amount and claim innocence in
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`amending her Complaint is nothing short of incredible. For these reasons, the
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`Court should deny Plaintiff's Motion to Remand.
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`C. The Court Has Federal Question Jurisdiction.
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` Even if the Court finds the amount in controversy requirement is not
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`satisfied, this case presents significant questions involving federal law. Federal
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`courts have original jurisdiction over cases "arising under federal law." Ehlen
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`Floor Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011) (citing 28
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`U.S.C. § 1331). To determine whether federal question jurisdiction exists, the
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`Court looks to the “well-pleaded complaint.” Franchise Tax Bd. of State of Cal. v.
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`Constr. Laborers Vacation Tr. for S. Calif., 463 U.S. 1, 9 (1983) "Cases arise
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`under federal law when it appears from the complaint that federal law creates the
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`11
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 12 of 17
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`cause of action or that resolution of the dispute requires interpretation of a
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`substantial federal issue." Iberiabank v. Beneva 41-I, LLC, 701 F.3d 916, 919 (11th
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`Cir .2012). A state claim may also be deemed to arise under federal law under the
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`"complete preemption" doctrine when federal regulation "so occupies a given
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`field" that any company raising claims in that field must necessarily be
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`characterized as federal in nature. Dunlap v. G & L Holding Grp., Inc., 381 F.3d
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`1285, 1290 (11th Cir. 2004).
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`The intent of Congress is the key to determining preemption. Altria, 555
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`U.S. at 76. "Pre-emptive intent may also be inferred if the scope of the statute
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`indicates that Congress intended federal law to occupy the legislative field, or if
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`there is an actual conflict between state and federal law." Id. at 76-77.
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`First, the Court has federal question jurisdiction because the FAA was
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`intended to preempt state law. "The United States Government has exclusive
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`sovereignty of airspace of the United States." 49 U.S.C. § 40103(a)(1). "The FAA
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`was enacted to create a 'uniform and exclusive system of federal regulation' in the
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`field of air safety." Air Trans. Ass'n of Am., Inc. v. Cuomo, 520 F.3d 218, 224 (2d
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`Cir. 2008); see, e.g., French v. Pan Am Exp. Inc., 869 F.2d 1, 5 (1st Cir. 1989)
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`("[The] establishment of a single uniform system of regulation in the area of air
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`safety was one of the primary ‘objects sought to be obtained’ by passage of the
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`[FAA].”); Kohr v. Allegheny Airlines, 504 F.2d 400, 404 (7th Cir. 1974) (“[T]he
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`12
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 13 of 17
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`principal purpose of the Act is to create one unified system of flight rules and to
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`centralize in the Administrator of the Federal Aviation Administration the power to
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`promulgate rules for the safe and efficient use of the country's airspace.”).
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`“Congress intended to occupy the entire field of air safety....” Goodspeed Airport
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`LLC v. E. Haddam Inland Wetlands & Watercourses Comm'n, 634 F.3d 206, 210
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`(2d Cir. 2011) (emphasis added). The FAA not only covers airplanes, but also
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`helicopters and other aircraft. See 14 C.F.R. § 1.1 ("Helicopter means a rotorcraft
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`that, for its horizontal motion, depends principally on its engine-driven rotors.").
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`Here, Plaintiff alleged that Aerial Specialists' pilot negligently sprayed
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`herbicides onto Plaintiff's property while operating a helicopter. (See Pl.'s Am.
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`Compl.). Plaintiff's negligence claim necessarily involves the subject helicopter
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`and the subject pilot's safe operation of said helicopter. The FAA covers all
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`aircraft, including helicopters, and the safe operation of those aircraft. Because
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`"Congress intended to occupy the entire field of air safety," it follows that the FAA
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`was designed to encompass all claims which involve a question of whether an
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`aircraft was being operated in a safe manner. For this reason, the FAA preempts
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`Plaintiff's state law claims and the Court has federal question jurisdiction.
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`Second, field preemption applies to this case because the negligence
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`standard set forth in the FAA differs from that of Georgia's negligence standard.
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`Air safety regulations under the FAA are set out in the Federal Air Regulations, 14
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`13
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 14 of 17
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`C.F.R. §§ 21.199 et seq. (“FARs”). FAR 91.3 declares that “[t]he pilot in
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`command of an aircraft is directly responsible for, and is the final authority as to,
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`the operation of that aircraft.” 14 C.F.R. § 91.3(a). FAR 91.13 sets the standard of
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`care for a pilot in operation of an aircraft. See id. § 91.13. “No person may operate
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`an aircraft in a careless or reckless manner so as to endanger the life or property of
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`another.” Id. § 91.13(a). In contrast, the negligence standard under Georgia law
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`requires that a person act as a reasonably prudent person would under the same or
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`similar circumstances. Flexible Products Co. v. Ervast, 284 Ga. App. 178, 643
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`S.E.2d 560 (2007).
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`Because there is a direct conflict between the negligence standard set forth
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`in the FAA and the Georgia negligence standard, and because "the state law stands
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`as an obstacle to the objective of the federal law," preemption exists here. See In re
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`Air Crash Near Clarence Ctr., N.Y., on Feb. 12, 2009, 798 F.Supp.2d 481, 486
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`(W.D.N.Y. 2011) (“[T]he [FAA] and its accompanying federal regulations preempt
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`state regulation of the air safety field, including state standards of care.") Since the
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`federal law standard of case differs from the Georgia standard of care, Plaintiff's
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`state law negligence claims are preempted by federal law.
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`14
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 15 of 17
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`CONCLUSION
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`For the foregoing reasons, the Court should deny Plaintiff's Motion to
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`Remand.
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`Respectfully submitted this 13th day of January, 2020.
`
`HALL BOOTH SMITH, P.C.
`
`/s/ Daniell R. Fink
`DANIELL R. FINK
`Georgia State Bar No. 540374
`Attorney for Defendants
`
`191 Peachtree Street NE, Suite 2900
`Atlanta, GA 30303-1775
`T: 404.954.5000
`F: 404.954.5020
`dfink@hallboothsmith.com
`
`15
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 16 of 17
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`IN THE UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF GEORGIA
`ATHENS DIVISION
`
`DIANE CARTEY,
`
`Plaintiff,
`
`v.
`
`CIVIL ACTION FILE NO.
`
`3:20-CV-00133-CAR
`
`NUTRIEN AG SOLUTIONS and
`AERIAL SPECIALISTS, INC.,
`
`Defendants.
`
`REMOVED FROM SUPERIOR
`COURT OF MORGAN COUNTY,
`CIVIL ACTION FILE NO. 2020-SU-
`CA-182
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this day I have served a copy of the within and
`
`foregoing DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR
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`REMAND & STIPULATION OF DAMAGES upon all parties to this matter by
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`filing said document with the CM/ECF system which will automatically send
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`electronic notification to the following:
`
`Christopher L. Weems, Esq.
`Christopher L. Weems, PC
`525 Gaines School Road
`Athens, GA 30601
`office@weemspc.com
`Attorney for Plaintiff
`
`[SIGNATURE PAGE FOLLOWS]
`
`16
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`Case 3:20-cv-00133-CAR Document 11 Filed 01/13/21 Page 17 of 17
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`This 13th day of January, 2020.
`HALL BOOTH SMITH, P.C.
`
`/s/ Daniell R. Fink
`DANIELL R. FINK
`Georgia State Bar No. 540374
`Attorney for Defendants
`
`191 Peachtree Street NE, Suite 2900
`Atlanta, GA 30303-1775
`T: 404.954.5000
`F: 404.954.5020
`
`17
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`