Magedson et al v. Whitney Information Network, Inc. et al

Filing 1

NOTICE OF REMOVAL from Superior Court of Arizona, Maricopa County, case number CV2008-01196 Filing fee received: $ 350.00, receipt number 09700000000002229670, filed by Whitney Information Network, Inc.. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Supplement Supplemental Cover Sheet for Case Removed from Another Jurisdiction)(Frazier, Roger)

Download PDF
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 GUST ROSENFELD P.L.C. One South Church Ave., Suite 1900 Tucson, Arizona, 85701 Roger W. Frazier No. 012146 (520)388-4786 201 E. Washington, Suite 800 Phoenix, Arizona 85004-2327 (602) 257-7422 Timothy J. Watson No. 018685 Attorneys for Defendant Whitney Information Network, Inc. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA EDWARD MAGEDSON, an individual; XCENTRIC VENTURES, L.L.C., an Arizona limited liability company, Plaintiffs, vs. WHITNEY INFORMATION NETWORK, INC., a Colorado corporation RONALD S. SIMON; ROTHSTEIN ROSENFELDT ADLER, P.A., a Florida professional association; CHRISTOPHER SHARP; SHAWN BIRKEN; STEVEN N. LIPPMAN; DOES 1-10; CORPORATIONS A-Z, inclusive, Defendants. No. JOINT NOTICE OF REMOVAL Defendant Whitney Information Network, Inc. ("WIN"), joined by Defendants Rothenstein Rosenfeldt Adler, P.A., Christopher Sharp, and Shawn Birkin, hereby file this Notice of Removal in the above captioned matter, pursuant to 28 U.S.C. 1332 and 1441, and LRCiv 3.7, Rules of Practice of the United States District Court for the District of Arizona, and state the following in support of this Notice of Removal: RWF:kpm 277177.1 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1. This action was filed originally in Maricopa County Superior Court, Arizona, on or about May 14, 2008, and an Amended Verified Complaint was filed July 9, 2008, entitled: Edward Magedson; XCentric Ventures, L.L.C. v. Whitney Information Network, Inc., et al., Case No. CV 2008-011196 (hereinafter "State Court Action"). 2. In accordance with 28 U.S.C. 1446(a) and LRCiv. 3.7, a copy of all documents filed in the superior court from which this case is removed, is attached hereto as Exhibit A, accompanied by counsel's verification. 3. On August 25, 2008, Defendant WIN, through its statutory agent National Registered Agents, Inc. in Colorado, was served with the Amended Verified Complaint, brought by Plaintiffs Edward Magedson ("Magedson") and XCentric Ventures, L.L.C. ("XCentric"), against WIN and other Defendants in the Superior Court, Maricopa County, Arizona, and a summons addressed to Steven Lippman. On August 27, 2008, WIN was re-served with a summons addressed to WIN. Copies of the summons and notices of service are attached as Exhibit B. WIN was also served with a Certificate on Compulsory Arbitration along with the summons and Amended Verified Complaint. 4. On September 5, 2008, the Defendants Rothenstein Rosenfeldt Adler, P.A., Christopher Sharp, and Shawn Birkin returned to Plaintiff's counsel the waivers of service of process, and have received copies of the Amended Verified Amended Complaint and Certificate on Compulsory Arbitration described in 3 above. Copies of the waivers are included in Exhibit A. 5. As of the date of this Notice of Removal the Defendants Ronald S. Simon and Steven N. Lippman have not been served, to these Defendants' knowledge. On September 10, 2008, Plaintiff filed a motion in the superior court for an extension of time to serve them. A copy of the motion is included in Exhibit A. 6. RWF:kpm 277177.1 The first count of the Amended Verified Complaint is against all 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants and is based on common-law claims of abuse of process (Amended Verified Complaint, 37-42). A second count is against only Defendants Rothenstein Rosenfeldt Adler, P.A., Christopher Sharp, and Shawn Birkin, and Steven Lippman, alleging aiding and abetting tortious conduct (Amended Verified Complaint 43-48). 7. In the State Court Action, Plaintiff Edward Magedson claims to be a resident of Maricopa County, Arizona (Amended Verified Complaint 3). Plaintiff XCentric claims to be an Arizona limited liability company, which is managed by Plaintiff Magedson (Amended Verified Complaint 2 and 4). According to the Amended Verified Complaint, and on information and belief, none of the Defendants are residents of Arizona. Defendant WIN is a Colorado corporation, with its principal place of business located in Lee County, Florida. The Defendant Rothstein Rosenfeldt Adler, P.A., is a law firm organized as a Florida professional association, with its principal place of business located in Ft. Lauderdale, Florida. The three individually named Defendants, Christopher Sharp, Shawn Birken, and Steven N. Lippman are all attorneys licensed to practice, and employed as attorneys, in Florida. 8. Based upon the allegations contained in the Complaint and upon information and belief of the amount demanded by Plaintiffs, these Defendants believe that the amount in controversy exceeds the jurisdictional requirement of $75,000 for removal of actions based on diversity. 9. This Court has independent jurisdiction over this matter based upon diversity of citizenship, 28 U.S.C. 1332(a) and (c)(1). Therefore, this suit may be removed to this Court by these Defendants pursuant to the provisions of 28 U.S.C. 1441. 10. This Notice is timely brought. Service was attempted upon WIN on August 25, 2008, and corrected service was made on August 27, 2008. Waiver of service by Rothenstein Rosenfeldt Adler, P.A., Christopher Sharp, and Shawn Birkin RWF:kpm 277177.1 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 was on September 5, 2008. Therefore, pursuant to 28 U.S.C. 1446(b), and Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999), this Notice is being filed within thirty (30) days of receipt and service of copy of the initial pleading setting forth the Plaintiffs' claims. 11. Removal venue is appropriate for purposes of removal because the District of Arizona embraces that place where the State Court action is pending. 12. Contemporaneous with the filing of this Notice, these Defendants have provided to the adverse party to filing, and the Superior Court of Maricopa County, Arizona, written notice of this notice of removal. RESPECTFULLY submitted this 17th day of September, 2008. GUST ROSENFELD, P.L.C. LEWIS, BRISBOIS, BISGAARD & SMITH, LLP By /s/ Bryan N. Sandler w/ permission Bryan N. Sandler, 018601 Attorneys for Defendants Rothenstein Rothstein, Rosenfeldt Adler, P.A., Christopher Sharp,and Shawn Birkin By /s/ Roger W. Frazier_ Roger W. Frazier, 012146 Timothy J. Watson, 018685 Attorneys for Defendant Whitney Information Network, Inc. I certify that the content of this document is acceptable to all persons required to sign the document and that authorization to electronically sign this document has been obtained. /s/ Roger W. Frazier RWF:kpm 277177.1 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 RWF:kpm 277177.1 CERTIFICATE OF SERVICE I hereby certify that on September 17, 2008, I electronically transmitted this document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrants, and to the extent any party is not a CM/ECF Registrant at the time of filing this Notice of Removal, a copy is mailed this date by U.S. Mail: Maria Crimi Speth Adam S. Kunz David S. Gingras Laura Rogal JABURG & WILK, P.C. 3200 N. Central Ave., Suite 2000 Phoenix, AZ 85012 Attorneys for Plaintiffs Bryan N. Sandler, Esq. LEWIS, BRISBOIS, BISGAARD & SMITH, LLP 2929 N. Central Ave., Suite 1700 Phoenix, AZ 85-12 Attorneys for Rothstein Rosenfelt Adler LLP, and Sharp, Birken and Lippman By s/ Roger W. Frazier 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?