porzio, bromberg & newman, p.c. - truth in advertising · 2016-08-19 · blane friest,...
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PORZIO, BROMBERG & NEWMAN, P.C. 100 Southgate Parkway Morristown, NJ 07962-1997 (973) 538-4006 Attorneys for Defendants Luxottica Retail North America Inc. Luxottica Group SpA Luxottica USA LLC and The United States Shoe Corp.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
BLANE FRIEST, Individually And on behalf of a class of Similarly situated Individuals, Plaintiffs, v. LUXOTTICA GROUP SpA., LUXOTTICA USA, LLC, LUXOTTICA RETAIL NORTH AMERICA, INC., THE UNITED STATES SHOE CORP. t/a LENSCRAFTERS and JOHN DOES 1-5 AND ABC CORPS 6-10,
Defendants.
CIVIL ACTION NO. _______________
DEFENDANTS LUXOTTICA RETAIL NORTH AMERICA INC. AND LUXOTTICA GROUP S.p.A.’s
NOTICE OF REMOVAL
Document Electronically Filed Via ECF System
TO: William T. Walsh, Clerk United States District Court Mitchell H. Cohen U.S. Courthouse 1 John F. Gerry Plaza Camden, NJ 08101
WITH NOTICE TO: Clerk, Superior Court of New Jersey Deputy Clerk of the Superior Court 50 West Market Street Room 131 Newark, NJ 07102
Bruce H. Nagel, Esq. Nagel Rice, LLP 103 Eisenhower Parkway Roseland, NJ 07068 Attorney for Plaintiff Blane Friest
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PLEASE TAKE NOTICE that defendants, Luxottica Retail North America Inc. and
Luxottica Group S.p.A. (“Defendants”), by and through its attorneys, Porzio, Bromberg &
Newman PC, hereby removes the above-captioned action from the Superior court of New Jersey,
Law Division, Essex County, to the United States District Court for the District of New Jersey,
pursuant to 28 U.S.C. §§1332(d)(2), 1441, 1446, and 1453.
I. COMMENCEMENT OF ACTION AND SERVICE OF PROCESS
1. On or about April 22, 2016, plaintiff Blane Friest (“Plaintiff”) commenced this
putative class action against Luxottica Retail North America Inc. (“LRNA”), Luxottica Group
S.p.A. (“Luxottica Group”), Luxottica USA LLC (“Luxottica USA”) and The United States Shoe
Corp. (“US Shoe”)1 by filing a Class Action Complaint and Jury Demand (the “Complaint”) in
the Superior court of the State of New Jersey, Essex County, which was assigned docket no. L–
2882–16.
2. On May 10, 2016, a process server delivered the Complaint and summonses
addressed to LRNA and Luxottica Group at LRNA’s corporate headquarters.2 (See Affidavits of
Service obtained from Plaintiff’s counsel, attached hereto as Exh. “A”). This notice is therefore
timely pursuant to 28 U.S.C. §1446(b).3 As required by 28 U.S.C. §1446(a), true and correct
copies of all process, pleadings, and orders served upon LRNA and Luxottica Group are attached
hereto as Exh. “B”.
1 Three of the Defendants were improperly denominated in the Complaint: LRNA as “Luxottica Retail North America, Inc.”; Luxottica Group as “Luxottica Group SpA”; and Luxottica USA as “Luxottica USA, LLC”. Based upon the allegations in the Complaint, only LRNA, which operates LensCrafters, is a proper party to this action. 2 As of this date, service has not been received on Luxottica USA and US Shoe. 3 By filing this Notice of Removal, Defendants do not waive any objections to defects in process, service of process, jurisdiction, venue or any other defense.
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II. SATISFACTION OF PROCEDURAL REQUIREMENTS
3. As more fully set forth below, this case is being properly removed to the United
States District Court for the District of New Jersey pursuant to 28 U.S.C. §1441 because
Defendant has satisfied the procedural requirements for removal and this Court has subject
matter jurisdiction over this action pursuant to 28 U.S.C. §1332.
4. This Notice of Removal is timely pursuant to 28 U.S.C. §1446(b)(2)(B) because it
is being filed within thirty days of Defendant’s receipt of Plaintiff’s initial pleading.
5. Pursuant to 28 U.S.C. §1446(d), a copy of this Notice of Removal along with a
Notice of Filing the Notice of Removal is being served on counsel for Plaintiff and a copy is
being filed with the Clerk of the Superior Court of the State of New Jersey, Law Division, Essex
County.
6. Venue is proper within the District of New Jersey pursuant to 28 U.S.C. §110 and
28 U.S.C. §1441 because it is the district and division embracing the place where such action is
currently pending.
7. This Notice of Removal is signed pursuant to Fed. R. Civ. P. 11. 28 U.S.C.
§ 1446(a).
8. No other Defendants are required to consent to this removal. 28 U.S.C. §1453(b).
III. ALLEGATIONS OF THE COMPLAINT
9. The Complaint alleges that Defendants, through their affiliates and subsidiaries,
including LensCrafters, “the retail eyewear outlet store having 30 separate location in New
Jersey” violated the New Jersey Consumer Fraud Act, N.J.S.A. §56:8-1 et. seq. (“CFA”), the
New Jersey Truth-in-Consumer Contract, Warranty and Notice Act, N.J.S.A. §56:12-15
(“TCCWNA”), and the New Jersey Antitrust Act, N.J.S.A. 56:9-3 (“Antitrust Act”), by engaging
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in a policy and practice of refusing to provide customers with their pupillary distance
measurement in order to preclude them from obtaining eyewear through competitors in
contravention of the rules and regulations of the New Jersey State Board of Ophthalmic
Dispensers and Technicians. (Complaint, Exh. B at ¶¶’s 1-4).
10. Plaintiff further alleges that LensCrafters’ website, by failing to disclose this
policy, “constitutes a misleading communication” in violation of regulations governing
ophthalmic dispensers, and thus is “false advertising” under the CFA. (Id.at ¶5). Additionally,
LensCrafters allegedly violates related regulations by suggesting that technicians who measure
the pupillary distance are optometrists and that this measurement constitutes part of the “eye
exam” from an optometrist. (Id.at ¶6). By disseminating these “misleading and deceptive
advertisements” on the Internet, LensCrafters allegedly violates TCCWNA. (Id.at ¶7). Lastly,
LensCrafters’ conduct allegedly “constitutes an anti-competitive activity” designed to “enhance
its pricing power and further consolidate its market share to the detriment of competition and at
the expense of consumers….” (Id. at ¶8).
11. Plaintiff seeks to certify a class consisting of “[a]ll individuals who purchased
prescription eyewear at a LensCrafters in New Jersey within the past six years who did not
receive their pupillary distance when they requested it.” (Id.at ¶25).
12. The Complaint seeks compensatory and consequential damages, treble damages,
statutory attorney’s fees and costs of suit, and injunctive relief under the CFA (Id. ¶¶’s 53, 63 &
79); compensatory and consequential damages, statutory damages of “‘not less than $100.00 or
for actual damages, or both,’” attorney’s fees and costs of suit under TCCWNA (Id.at ¶85); and
compensatory and consequential damages, treble damages, statutory attorney’s fees and costs of
suit, and injunctive relief under the Antitrust Act (Id.at ¶¶’s 96 &106).
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IV. SUBJECT MATTER JURISDICTION
13. This Court has jurisdiction of this action pursuant to the Class Action Fairness
Act of 2005 (“CAFA”), codified in various statutory sections including 28 U.S.C. §1332(d), and
this case is subject to removal under CAFA.
14. Under CAFA, a putative class action may be removed where (a) any member of a
class of plaintiffs is a citizen of a State different from any defendant (b) the putative class
consists of more than 100 members; and (c) the amount in controversy is $5,000,000 or more,
when the claims of putative class members are aggregated (exclusive of interests and costs). See
28 U.S.C. § 1332(d).
15. The Complaint meets the CAFA definition of a class action, which is “any civil
action filed under rule 23 of the Federal Rules of Civil Procedure or similar State
statue…authorizing an action to be brought by 1 or more representative persons as a class
action.” 28 U.S.C. §1332(d)(1)(B); 28 U.S.C. §1453(a), (b).
A. Minimum Diversity Exists Between the Parties
16. The Complaint alleges that Plaintiff is a resident and citizen of the State of New
Jersey, and lists his address as 68 Astor Place, Jersey City, NJ 07304. (Complaint, Exh. B at
¶11).
17. Plaintiff further alleges that LRNA is an Ohio Corporation maintaining its
principal place of business at 4000 Luxottica Place, Mason Ohio 45050. (Id.at ¶14). The
Complaint alleges that Luxottica Group is an Italian corporation with its principal place of
business in Milan and an office at the above-referenced location. (Id.at ¶12). Plaintiff also
alleges that Luxottica USA is a subsidiary of the Italian entity and has a principal place of
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business at 44 Harbor Park Drive, Port Washington, New York 11050.4 (Id.at ¶13). Lastly, the
Complaint avers that US Shoe is an Ohio Corporation with its principal place of business at One
Eastwood Drive, Cincinnati, Ohio 45227,5 and is a wholly owned subsidiary of the Italian entity,
and “the parent company of one or more of the other Defendants….” (Id.at ¶15). Thus, for
purposes of removal, as alleged, Luxottica Group is an Italian citizen, Luxottica USA is a New
York citizen and the remaining defendants are citizens of Ohio. See 28 U.S.C. §1332(c)(1).
18. Plaintiff is a citizen of New Jersey, is therefore diverse from not only one, but all
Defendants. 28 U.S.C. §1332(d).
B. The Proposed Class Consists of More Than 100 Persons
19. The Complaint alleges that LensCrafters has 30 stores in New Jersey where
customers can “obtain on-site eye-exams and purchase their prescription eyewear.” (Complaint,
Exh. B at ¶16).
20. Plaintiff seeks to certify a class consisting of “[a]ll individuals who purchased
prescription eyewear at a LensCrafters in New Jersey within the past six years who did not
receive their pupillary distance when they requested it.” (Id.at ¶25).
21. The Complaint alleges that the “members of the class are so numerous that
joinder of all members is impracticable.” (Id.at ¶26).
22. During the putative class period, LensCrafters sold prescription eyewear to more
than 100 customers each month at LensCrafters locations in New Jersey. (See Declaration of
Scott Messbarger, Vice-President, Finance, LensCrafters (“Messbarger Decl.”), ¶5, Exh. “C”
attached hereto). In each full year of the class period, LensCrafters sold more than 50,000
prescription eyeglasses in New Jersey. Without conceding the validity of Plaintiff’s assertions,
4 The correct street address for Luxottica USA is 12 Harbor Park Drive. 5 US Shoe’s actual headquarters is located at 12 Harbor Park Drive, Port Washington, NY 11050.
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these purchases represent tens of thousands of New Jersey customers, all of whom could be
potential class members, according to the allegations in the Complaint. (Id.) If only 0.2% of
these eyeglasses were purchased by customers who were refused their pupillary distance
measurement, the proposed class would exceed 100 persons. 28 U.S.C. §1332(d)(5)(B).
C. The Aggregate Amount-in-Controversy Exceeds $5,000,000
23. The claims of the individual class members in a class action are aggregated to
determine if the amount in controversy exceeds the sum or value of $5,000,000. 28 U.S.C.
§1332(d)(2) & (d)(6). The notice of removal need only contain a plausible allegation that the
amount in controversy exceeds the jurisdiction threshold. Dart Cherokee Basin Operating Co.,
LLC v. Owens, 135 S. Ct. 547, 553 (2014). “Where there is no dollar amount alleged in the
complaint and the action is in federal court by notice of removal . . . The Court first looks to the
complaint, and then to the moving papers, and then to anything else.” Faltaous v. Johnson and
Johnson, 2007 WL 3256833, Civ. Action No. 07-1572 (D.N.J. Nov. 2007)(citing United Food &
Comm. Workers Union v. CenterMark Properties Meriden Square Inc., 30 F.3d 298, 305 (2d Cir.
1994).
24. The Complaint seeks compensatory and consequential damages, treble damages,
and attorney’s fees under the CFA (Complaint, Exh. B, ¶¶’s 53, 63 & 79); compensatory and
consequential damages, statutory damages of “‘not less than $100.00 or for actual damages, or
both,’” and attorney’s fees under TCCWNA (Id.at ¶85); and compensatory and consequential
damages, treble damages, and attorney’s fees under the Antitrust Act (Id.at ¶¶’s 96 &106).
25. Without conceding the validity of Plaintiff’s claims, assuming that there are
50,000 customers who purchase eyeglasses from LensCrafters in New Jersey each year, and that
only 17% of them viewed the allegedly “misleading communications” on LensCrafters’ website
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during each of the 6 years of the class period, and that each customer could claim TCCWNA
damages of $100, the aggregated total would exceed $5,000,000 [8,500 customers (50,000
customers x 17%) x $100 damages x 6 years = $5,100,000]. See Slack v. Suburban Propane
Partners, L.P., 2010 U.S. Dist. LEXIS 135530 (D.N.J. Dec. 22, 2010)(“any person who violates
the TCCWNA is liable for a $100 civil penalty or actual damages, at the election of the
consumer”).
26. Plaintiff also alleges that Defendants’ policy of refusing to disclose the pupillary
distance measurement “induces customers to purchase additional pairs of eyeglasses from
Defendants….” (Id. at ¶49). LRNA’s net sales from ophthalmic products greatly exceeded
$20,000,000 in each of the six years in issue in this litigation (Messbarger Decl. ¶5). Without
admitting plaintiff’s allegations – and assuming that restitution of the purchase price represents a
proper measure of damages under the CFA, TCCWNA or the Antitrust Act – if only 4.2% of
LensCrafters’ minimum annual sales of $20,000,000 represented purchases by customers who
were denied their pupillary distance measurement and were “induced” to purchase an additional
pair of eyeglasses as a result, damages would exceed the jurisdictional threshold during the class
period [$20,000,000 annual sales x 4.2% = $840,000 in damages x 6 years = $5,040,000].
27. The potential award of treble damages and attorney’s fees provides additional
evidence that the amount-in-controversy threshold will likely be exceeded here. Attorney’s fees
are appropriately counted toward the amount in controversy if they are available to a successful
plaintiff pursuant to an underlying statute. Suber v. Chrysler Corp., 104 F.3d 578, 585 (3d Cir.
1997). This applies to cases removed under CAFA. See Lowdermilk v. U.S. Bank National
Assoc., 479 F.3d 994, 1000 (9th Cir. 2007); Frazier v. Pioneer Americas, LLC, 455 F.3d 542 (5th
Cir. 2006).
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28. Under the CFA, a court shall “award threefold the damages” to any person who
suffers any ascertainable loss as a result of any unlawful practice, as well as “reasonable
attorney’s fees, filing fees and reasonable costs of suit.” N.J.S.A. 56:8-19. These potential CFA
awards must be taken into account when determining the amount in controversy. See, e.g.,
Frederico v. Home Depot, Inc., 507 F.3d 188, 197-99 (3d Cir. 2007). Moreover, attorney’s fees
could be “as much as 30% of the judgment.” Id. at 199 (citations omitted).
29. Attorney’s fees and costs of suit are also recoverable under TCCWNA, N.J.S.A.
56:6-17. Because this statute also provides for an award of “reasonable attorney’s fees and
court costs,” which could potentially be 27-30% of the judgment, the amount in controversy
based only on this statute, as calculated above, exceeds $5 million. See In re Rite Aid Corp. Sec.
Litig., 396 F.3d 294, 303 (3d Cir. 2005), as amended (Feb. 25, 2005).
30. Lastly, the Antitrust Act also provides for treble damages, N.J.S.A. 56:9-6 and an
award of attorney’s fee to a prevailing party. N.J.S.A. 56:9-10 b.
31. In sum, based on the allegations in the Complaint, the potential for an award to
the class of damages exceeding $5,000,000, even before trebling or a reasonable and
proportionate award of attorney’s fees, is plausibly established.
D. No CAFA Exclusion Applies
32. This action does not fall within any exclusions to removal jurisdiction under 28
U.S.C. 28 1332(d) and 1453(b).
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WHEREFORE, Defendant respectfully removes this action from the Superior Court of
the State of New Jersey, Law Division, Essex County, to the United States District Court for the
District of New Jersey pursuant to 28 U.S.C. §§ 1332, 1441, 1446 and 1453.
PORZIO, BROMBERG & NEWMAN P.C. 100 Southgate Pkwy., PO Box 1997 Morristown, NJ 07962-1997 (973) 538-4006 (973) 538-5146 Fax [email protected] Attorneys for Defendants Luxottica Retail North America Inc. Luxottica Group SpA Luxottica USA LLC and The United States Shoe Corp. By: s/ Steven P. Benenson
Date: June 8, 2016 Steven P. Benenson An Attorney of the Firm
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CERTIFICATE OF SERVICE
I hereby certify that on this date, I caused to be mailed via Lawyers Service a Notice to
Adverse Party of Filing of Notice of Removal enclosing a copy of the foregoing Notice of
Removal and exhibits thereto, as well as a copy of a Notice to Clerk of the Superior Court of
Filing of Notice of Removal, to the following counsel for plaintiff:
Bruce H. Nagel, Esq. Nagel Rice, LLP 103 Eisenhower Parkway Roseland, NJ 07068 Attorney for Plaintiff Blane Friest
I further certify that on this date, I caused to be mailed via Lawyers Service a Notice to
Clerk of the Superior Court of Filing of Notice of Removal, to:
Clerk, Superior Court of New Jersey Deputy Clerk of the Superior Court 50 West Market Street Room 131 Newark, NJ 07102
s/ Steven P. Benenson Date: June 8, 2016 Steven P. Benenson
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EXHIBIT A
EXHIBIT A
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EXHIBIT B
EXHIBIT B
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EXHIBIT C
EXHIBIT C
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JS 44 (Rev. 12/12)
CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS BLANE FRIEST
DEFENDANTSLUXOTTICA RETAIL NORTH AMERICA INC., LUXOTTICA GROUP S.p.A., LUXOTTICA USA, LLC., THE UNITED STATES SHOE CORP., et al..
(b) County of Residence of First Listed Plaintiff Hudson County, New Jersey County of Residence of First Listed Defendant Principal place of business:Mason, Ohio
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) (c) Attorneys (Firm Name, Address, and Telephone Number) Bruce H. Nagel, Esq. NAGEL RICE, LLP 103 Eisenhower Parkway Roseland, NJ 07068 (973) 618‐0400
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
Attorneys (If Known)Steven P. Benenson, Esq. Porzio, Bromberg & Newman P.C. 100 Southgate Parkway Morristown, NJ 07962 (973) 538‐4006
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff) (For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government Plaintiff
3 Federal Question (U.S. Government Not a Party)
PTF DEF
Citizen of This State 1 1
PTF DEF
Incorporated or Principal Place 4 4 of Business In This State
2 U.S. Government Defendant
4 Diversity (Indicate Citizenship of Parties in Item III)
Citizen of Another State 2 2 Incorporated and Principal Place 5 5 of Business In Another State
Citizen or Subject of a 3 3 Foreign Country
Foreign Nation 6 6
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act 152 Recovery of Defaulted
Student Loans (Excludes Veterans)
153 Recovery of Overpayment of Veteran’s Benefits
160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise
PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure of Property 21 USC 881 690 Other
422 Appeal 28 USC 158 375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information
Act 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision
950 Constitutionality of State Statutes
310 Airplane 315 Airplane Product
Liability 320 Assault, Libel &
Slander 330 Federal Employers’
Liability 340 Marine 345 Marine Product
Liability 350 Motor Vehicle 355 Motor Vehicle
Product Liability 360 Other Personal Injury 362 Personal Injury –
Medical Malpractice
365 Personal Injury – Product Liability
367 Health Care/ Pharmaceutical
Personal Injury Product Liability
368 Asbestos Personal Injury Product
Liability PERSONAL PROPERTY
370 Other Fraud 371 Truth in Lending 380 Other Personal
Property Damage 385 Property Damage
Product Liability
423 Withdrawal 28 USC 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark
SOCIAL SECURITY
LABOR 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
710 Fair Labor Standards Act
720 Labor/Management. Relations
740 Railway Labor Act 751 Family and Medical Leave
Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS
210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property
440 Other Civil Rights 441 Voting 442 Employment 443 Housing/
Accommodations 445 Amer. v/Disabilities –
Employment 446 Amer. w/Disabilities –
Other 448 Education
Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate
Sentence 530 General 535 Death Penalty
Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee –
Conditions of Confinement
870 Taxes (U.S. Plaintiff or Defendant) 871 IRS–Third Party
26 USC 7609 IMMIGRATION
462 Naturalization Application 465 Other Immigration
Actions
V. ORIGIN (Place an “X” in One Box Only) 1 Original
Proceeding 2 Removed from
State Court 3 Remanded from
Appellate Court 4 Reinstated or
Reopened Transferred from
5 Another District (specify)
6 Multidistrict Litigation
VI. CAUSE OF ACTION Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Matter is being removed from state court pursuant to 28 U.S.C. §§ 1332, 1441 & 1453 Brief description of cause: Plaintiff seeks injunctive, declaratory and monetary relief for alleged consumer fraud and antitrust violations
VII. REQUESTED IN
COMPLAINT: CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv. P.
DEMAND $ CHECK YES only if demanded in complaint:
JURY DEMAND: Yes No
VIII. RELATED CASE(S) IF ANY (See instructions):
JUDGE DOCKET NUMBER
DATE June 8, 2016 SIGNATURE OF ATTORNEY OF RECORD s/ Steven P. Benenson
FOR OFFICE USE ONLY
RECEIPT # _______________ AMOUNT __________________ APPLYING IFP _______________ JUDGE ____________________ MAG. JUDGE ______________________
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3423397
JS 44 Reverse (Rev. 12/12)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I.(a) Plaintiffs‐Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full
name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.
V. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
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