Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 221

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Cygnus Systems, Inc. v. Microsoft Corporation, et al Doc. 221 1 2 3 4 5 6 7 8 9 10 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 Joel P. Hoxie (#005448) Todd A. Williams (#020066) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA BALAR EQUIPMENT CORPORATION, an Arizona corporation, Plaintiff, v. VT LEEBOY, INC., a North Carolina corporation, fka B.R. LEE INDUSTRIES, INC., a North Carolina Corporation, JOHN DOES and JANE DOES I-X, inclusive; BLACK AND WHITE CORPORATIONS I-X, inclusive; XYZ PARTNERSHIPS I-X, inclusive, Defendants. No. DEFENDANT VT LEEBOY, INC.'S NOTICE OF REMOVAL PURSUANT TO 28 U.S.C. 1441(a) Snell & Wilmer L.L.P. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLEASE TAKE NOTICE that Defendant VT Leeboy, Inc. ("Leeboy") hereby removes to this Court the state court action described below, on the following grounds: 1. On January 16, 2007, an action was commenced in the Superior Court of the State of Arizona in and for the County of Maricopa, entitled Balar Equipment Corporation, an Arizona corporation, v. VT Leeboy, Inc., a North Carolina corporation, fka B.R. Lee Industries, Inc., a North Carolina corporation, et al., case no. CV2007000926. Copies of the Summons and Complaint in that action are attached as Exhibit A. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 Plaintiff simultaneously filed a Certificate Re Compulsory Arbitration certifying that the matter was not subject to compulsory arbitration as contemplated by the Arizona Rules of Civil Procedure. A copy of the Certificate Re Compulsory Arbitration is attached as Exhibit B. 2. The Summons, Complaint, and Certificate of Compulsory Arbitration were served on Defendant's statutory agent on January 24, 2007. Courtesy copies of these documents were hand-delivered to Leeboy's Arizona litigation counsel on January 17, 2007. Aside from these three documents, Defendant is not aware of any other process, pleadings, or orders on file in Maricopa County Superior Court in this action. 3. This notice of removal is timely under 28 U.S.C. 1446(b) because this Snell & Wilmer L.L.P. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 notice is filed within thirty (30) days after receipt by Defendant of the Complaint and within thirty (30) days after service on Defendant. JURISDICTION 4. As alleged in the Complaint, Plaintiff Balar Equipment Corporation is an Arizona corporation with its principal place of business located in Phoenix, Arizona. Defendant VT Leeboy is a North Carolina corporation with its principal place of business located in Lincolnton, North Carolina. 5. The amount in controversy in this matter exceeds $75,000, exclusive of interest and costs. As required by Rule 8(g), Arizona Rules of Civil Procedure, the Complaint is silent as to the amount of damages sought in this matter. As set forth below, however, there can be no legitimate dispute that the amount in controversy in this matter substantially exceeds the $75,000 jurisdictional threshold. 6. Plaintiff's Complaint arises from a Dealership Agreement between Balar and Leeboy pursuant to which Balar became an authorized dealer of Leeboy equipment. (Complaint at 9.) By letter dated October 27, 2006, Leeboy terminated the Dealership Agreement with Balar as of December 31, 2006. (Complaint at 16.) The crux of Balar's -2- 1 2 3 4 5 6 7 8 9 10 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 Complaint is that Leeboy was prohibited from terminating the Dealership Agreement with Balar under Arizona's Equipment Dealers Act, A.R.S. 44-6701, et seq. The Complaint seeks compensatory damages in the form of lost sales and reduced parts and repair revenue, in addition to punitive damages. 7. By letter dated December 18, 2006, Plaintiff's counsel detailed the claims that now constitute the state court suit that is the subject of this removal, and urged Leeboy to reconsider the termination of the Dealership Agreement. See December 18, 2006 Letter, attached as Exhibit C. In that letter, Plaintiff's counsel asserted that Balar's net earnings from the Leeboy relationship for 2006 alone were approximately $780,000. Id. at 3. Plaintiff's counsel "conservatively" estimated Balar's damages claim against Leeboy in the amount of $4,290,000 plus punitive damages. Id. 8. There being complete diversity of citizenship for purposes of jurisdiction Snell & Wilmer L.L.P. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 conferred by 28 U.S.C. 1332(a), the State Court action may be removed pursuant to 28 U.S.C. 1446(b). 9. Pursuant to 28 U.S.C. 1446(d) and Rule 3.7, Rules of Practice of the United States District Court for the District of Arizona, a copy of this Notice of Removal has been filed with the Clerk of Maricopa County Superior Court and served upon Plaintiff. DATED this 16th day of February, 2007. SNELL & WILMER L.L.P. By s/ Todd A. Williams Joel P. Hoxie Todd A. Williams One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Attorneys for Defendants -3- 1 2 3 4 5 6 7 8 9 10 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 CERTIFICATE OF SERVICE I hereby certify that on February 16, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing. A copy of the attached document was mailed to: Mark D. Samson KELLER ROHRBACK, P.L.C. 3101 N. Central Ave., Suite 1400 Phoenix, AZ 85012-2643 s/ Todd A. Williams Snell & Wilmer L.L.P. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -4-

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