Dozier Internet Law, P.C. v. Riley et al

Filing 6

Memorandum in Support re 5 MOTION to Remand to State Court filed by Dozier Internet Law, P.C.. (Morris, Donald)

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Dozier Internet Law, P.C. v. Riley et al Doc. 6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION DOZIER INTERNET LAW, P.C., a Virginia corporation, Plaintiff, v. RONALD J. RILEY, et al., ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. 3:08cv0643 (HEH) Defendants. DOZIER INTERNET LAW, P.C.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO REMAND THE CASE PURSUANT TO 28 U.S.C. 1447(c) AND FED R. CIV. P. 12(b)(1) COMES NOW DOZIER INTERNET LAW, P.C. (hereinafter referred to as "DIL"), a professional corporation organized under the laws of Virginia, by counsel, pursuant to 28 U.S.C. 1447(c) and Fed. R. Civ. P. 12(b)(1), and sets forth this Memorandum in Support of its Motion to Remand the Case. Introduction This action stems from DIL's state claim made in state court based upon a state registered trademark. This Court lacks jurisdiction to hear this matter as (1) this is not a federal question claim and (2) diversity jurisdiction is lacking. None of the six federal statutes relied upon by Defendants confer jurisdiction on this Court. This Court Lacks Jurisdiction over the Subject Matter "The burden of establishing federal jurisdiction is placed upon the party seeking removal." Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (citations omitted). Because of the significant federalism concerns in play, courts are required to strictly construe removal jurisdiction. Id. (citations omitted). "If federal jurisdiction is doubtful, a remand is necessary." Id. (citations omitted). 1 Dockets.Justia.com Defendants' main basis for establishing subject matter jurisdiction is 28 U.S.C. 1332. However, the amount in controversy does not exceed $75,000 exclusive of interests and costs. In fact, in the underlying state case, the suit is for a total of $55,000. Therefore, this Court lacks subject matter jurisdiction. Defendants state that the "value of the injunction for which the Complaint prays raises the amount in controversy over $75,000." (Notice of Removal 4.) The injunction Plaintiff seeks is the enjoinment of further "trademark infringing misconduct", which would simply be a court order to abide by the law, and such a mandate carries no independent value. Although Defendants cite 15 U.S.C. 1121 as conferring jurisdiction in this Court, DIL has asserted only a state trademark claim and does not possess any federally registered trademark. As such, this Court would lack jurisdiction. 28 U.S.C. 1331, 1337, 1338, and 1367 do not provide a basis for this Court to exercise subject matter jurisdiction in this case. Conclusion For all of the reasons set forth above, the Court should grant DIL'S Motion to Remand, remand this case back to state court, make an award of attorneys' fees and costs pursuant to 28 U.S.C. 1447(c), and grant such other and further relief that this Court deems just and proper. 2 Dated: October 29, 2008 Respectfully submitted: DOZIER INTERNET LAW, P.C. By: /s/ Donald E. Morris John W. Dozier, Jr., Esq. (VSB # 20559) Email: jwd@cybertriallawyer.com Donald E. Morris, Esq. (VSB # 72410) Email: don@cybertriallawyer.com DOZIER INTERNET LAW, P.C. 11520 Nuckols Road Suite 101 Glen Allen, VA 23059 Phone (804) 346-9770 Fax (804) 346-0800 Counsel for Dozier Internet Law, P.C. 3 CERTIFICATE OF SERVICE I hereby certify that on October 29, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Thomas Wolf, Esq. LeClair Ryan Riverfront Plaza, East Tower 951 East Byrd Street, Eighth Floor Richmond, Virginia 23219 Telephone (804) 916-7143 Email: Thomas.Wolf@leclairryan.com Paul Alan Levy, Esq. PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 Email: plevy@citizen.org Counsel for Defendants /s/ Donald E. Morris Donald E. Morris, Esq. (VSB # 72410) Email: don@cybertriallawyer.com DOZIER INTERNET LAW, P.C. 11520 Nuckols Road Suite 101 Glen Allen, VA 23059 Phone (804) 346-9770 Fax (804) 346-0800 Counsel for Dozier Internet Law, P.C. 4