Hypertouch, Inc v. Azoogle, Inc et al

Filing 1

Hypertouch, Inc v. Azoogle, Inc et al

Doc. 1

Dockets.Justia.com

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TO THE CLERK OF THE ABOVE ENTITLED COURT: PLEASE TAKE NOTICE THAT Defendant AzoogleAds.com, Inc. ("Azoogle")1 hereby removes this action from the Superior Court of the State of California, County of Los Angeles, to the United States District Court for the Central District of California and sets forth in support of its Notice of Removal of Action the following: 1. On April 15, 2008, an action was commenced in the Superior

Court of the State of California, County of Los Angeles, entitled Hypertouch, Inc. v. Azoogle, Inc., as Case Number SC097839. True and correct copies of the complaint (the "Complaint") and summons in that action are attached hereto as Exhibits A and B, respectively. 2. On May 19, 2008, Plaintiff Hyptertouch, Inc. ("Hypertouch") filed

proofs of service as to all four named defendants. True and correct copies of those proofs of service are attached hereto as Exhibit C. 3. According to the proof of service relating to Azoogle,

Hypertouch served Azoogle by means of personal delivery to Azoogle's registered agent, CT Corporation Systems in New York, New York, on the afternoon of May 7, 2008. On information and belief, however, CT

Corporation Systems did not receive, and has no record of receiving, such delivery. 4. According to the proof of service relating to Rock Holdings, Inc.

("Rock Holdings"), Hypertouch served Rock Holdings by means of substitute service delivered to an office in Santa Monica, California on the afternoon of May 7, 2008. On information and belief, however, Rock

Holdings is not registered to do, and does not do, business in California, and does not have any office or other place of business in California.2
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Plaintiff improperly refers to Azoogle as Azoogle, Inc. It appears from the related proof of service and from records on file with
2 NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441(a) (DIVERSITY)

CASE NO.

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Hypertouch could not therefore have effected, and did not effect, valid service on Rock Holdings. 5. On May 30, 2008, Hypertouch granted Azoogle until June 24,

2008 to respond to the Complaint. Previously, Hypertouch had granted defendants Quicken Loans, Inc. ("Quicken Loans") and Intuit Inc. ("Intuit") 15-day extensions of time to respond to the Complaint. The Amount in Controversy Requirement is Satisfied 6. The Complaint alleges that Hypertouch received over 380,000 commercial emails in violation of California Business & Professions Code §17529.5 and §§17200 et seq. Hypertouch prays for statutory damages under California Business & Professions Code §17529.5(b)(1)(B) in the amount of $1,000 per email, amounting to an amount in controversy of $380,000,000. Complete Diversity Exists 7. Hypertouch's Complaint alleges that it is a California

corporation, with its principal place of business in Menlo Park, California. 8. Azoogle is, and at all relevant times was, a corporation duly

organized and existing under the laws of the State of Delaware, with its principal place of business in the State of New York. Azoogle is not, and was not at any relevant time, a citizen of the State of California. 9. Quicken Loans is, and at all relevant times was, a corporation

duly organized and existing under the laws of the State of Michigan, with its principal place of business in the State of Michigan. Quicken Loans is not, and was not at any relevant time, a citizen of the State of California. the California Secretary of State that the "Rock Holdings" served by Hypertouch is a separate entity incorporated and headquartered in California, and is not the Rock Holdings named in the Complaint. Attached hereto as Exhibit D is a true and correct copy of the California Secretary of State corporate registration pertaining to that separate "Rock Holdings."
CASE NO. 3 NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441(a) (DIVERSITY)

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10.

Intuit is, and at all relevant times was, a corporation duly

organized and existing under the laws of the State of Delaware, with its principal place of business in the State of California. The Complaint,

however, does not allege any facts that relate in any way to Intuit, and does not allege a connection between Intuit and any other party. Intuit once owned Quicken Loans, but divested itself of its controlling stake in 2002. Attached hereto as Exhibit E is a true and correct copy of an Intuit SEC filing describing such divestment. On information and belief, Hypertouch fraudulently joined Intuit for the sole purpose of attempting to defeat diversity jurisdiction. 11. On information and belief, Rock Holdings is, and at all relevant

times was, a corporation duly organized and existing under the laws of the State of Michigan, with its principal place of business in the State of Michigan. Rock Holdings is not, and was not at any relevant time, a citizen of the State of California. The Complaint does not allege any facts that relate in any way to Rock Holdings, and does not allege a connection between Rock Holdings and any other party.3 As stated above, Rock

Holdings is not registered to do, and does not do, business in California, and does not have any office or other place of business in California. On information and belief, Hypertouch fraudulently joined Rock Holdings-- believing it was the "Rock Holdings" incorporated and headquartered in California--for the sole purpose of attempting to establish venue in the Central District of California, rather than the Northern District of California, where Hypertouch and Intuit have their principal places of business, and where Azoogle, Quicken Loans and Intuit employ counsel appearing in this action. Though not mentioned in the Complaint, Quicken Loans is a whollyowned subsidiary of a Rock Holdings.
CASE NO. 4 NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441(a) (DIVERSITY)

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12.

The Complaint also names Defendants Does 1-30. Pursuant to

28 U.S.C. §1441(a), the citizenship of these defendants is disregarded. 13. This is a civil action over which the Court has original

jurisdiction under the provisions of 28 U.S.C. §1332 and may be removed to this Court by the Defendants pursuant to the provisions of 28 U.S.C. §1441(a) because it is a civil action between citizens of different states and the matter in controversy herein exceeds the sum or value of $75,000, exclusive of interest and costs. The Other Requirements for Removal Are Met 14. This Notice of Removal is being filed within thirty (30) days of Thus, this Notice of Removal is service on the first-served defendant. timely filed under 28 U.S.C. §1446(b). 15. Removal to this Court is proper as the Superior Court of the

State of California, County of Los Angeles, where this action was originally filed, is located within this district. 16. Counsel for Azoogle certifies that it will file a copy of this Notice

of Removal with the Clerk of the Superior Court of the State of California, County of Los Angeles, and give notice of same to counsel for Hypertouch. 17. Defendants Quicken Loans and Intuit join in Azoogle's removal

of this action. /// /// /// /// /// /// ///
CASE NO. 5 NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441(a) (DIVERSITY)

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Respectfully Submitted, DATED: June 6, 2008 KRONENBERGER BURGOYNE, LLP By: _ ______ _

Henry M. Burgoyne, III Attorney for Defendant AzoogleAds.com, Inc. DATED: June ___, 2008 BINGHAM MCCUTCHEN LLP

By: _

______

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James G. Snell Attorney for Defendant Quicken Loans, Inc.

DATED: June ___, 2008

DLA PIPER US LLP

By: _

______

_

Pamela K. Fulmer Attorney for Defendant Intuit Inc.

CASE NO.

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NOTICE OF REMOVAL OF ACTION UNDER 28 U.S.C. § 1441(a) (DIVERSITY)

Exhibit A

Exhibit B

Exhibit C

Exhibit D

California Secretary of State - California Business Search - Corporation ...

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The information displayed here is current as of "MAY 30, 2008" and is updated weekly. It is not a complete or certified record of the Corporation.

Corporation
ROCK HOLDINGS, INC. Number: C2845333 Date Filed: 1/1/2006 Status: active Jurisdiction: California Address 3525 EASTHAM DR STE A CULVER CITY, CA 90232 Agent for Service of Process ** RESIGNED ON 05/08/2008
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For information about certification of corporate records or for additional corporate information, please refer to Corporate Records. Blank fields indicate the information is not contained in the computer file. If the status of the corporation is "Surrender", the agent for service of process is automatically revoked. Please refer to California Corporations Code Section 2114 for information relating to service upon corporations that have surrendered.

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Exhibit E

Form 8-K, Intuit, Inc., June 24, 2002

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8-K 1 f82568e8vk.htm FORM 8-K

http://sec.gov/Archives/edgar/data/896878/000089161802002936/f82568e8vk.htm

Form 8-K, Intuit, Inc., June 24, 2002

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Table of Contents

SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 June 24, 2002 (Date of Report) Date of earliest event reported: June 20, 2002 Intuit Inc. (Exact name of Registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation)

0-21180 (Commission File Number)

77-0034661 (I.R.S. Employer Identification No.)

2535 Garcia Avenue Mountain View, California 94043 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: [phone]

http://sec.gov/Archives/edgar/data/896878/000089161802002936/f82568e8vk.htm

Form 8-K, Intuit, Inc., June 24, 2002

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TABLE OF CONTENTS ITEM 5. OTHER EVENTS. SIGNATURES

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Form 8-K, Intuit, Inc., June 24, 2002

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Table of Contents

ITEM 5. OTHER EVENTS. Proposed Divestiture of Quicken Loans Business On June 20, 2002, Intuit Inc. ("Intuit") announced that it had signed a definitive agreement to sell its Quicken Loans mortgage business. When the transaction closes, Quicken Loans will become a wholly owned subsidiary of a newly created company and will continue to offer residential home mortgages and home equity loans under the Quicken Loans brand. The new company's investors will be led by Dan Gilbert, chairman of Quicken Loans and founder of Rock Financial Corp. (the predecessor of Quicken Loans), which Intuit acquired in December 1999. Based on the terms of the agreement, Intuit will receive cash, a note and multi-year licensing fees in exchange for all of the outstanding stock of Intuit's Quicken Loans Inc. and Title Source Inc. s ubsidiaries. Intuit will also receive a 12.5 percent equity interest in the new company. The new company will license from Intuit use of the Quicken Loans trademark for its residential home loan and home equity loan products. In addition, the tw o parties have entered into a five-year distribution agreement through which Quicken Loans will provide mortgage services on Quicken.com. Intuit has also agreed to continue providing a line of credit to fund mortgage loans for a transition perio d of up to six months after the transaction closes. Such funding is customary in the mortgage origination market. Intuit expects to treat the sale of the Quicken Loans business as a disc ontinued operation for accounting purposes. Accordingly, after the closing Intuit will amend its financial results for fiscal years 2000, 2001 and 2002 to reflect the exclusion of the results of the discontinued business. Intuit purchased the Quicken Loans business in December 1999. Because th e transaction was accounted for as a pooling of interests, Intuit's current balance sheet reflects the current net value of the tangible assets it acquired, rather than the purchase price paid. Accordingly, there will be no write-off of intangib le assets (such as goodwill) associated with the sale of the business. Intuit expects to recognize a small gain on divestiture that will be reflected in its GAAP (Generally Accepted Accounting Principles) financial results, because the consideration Intu it will receive exceeds the book value of the assets being sold. The transaction is expected to close within 90 days. The clo sing of the transaction is subject to standard closing conditions, including but not limited to various regulatory approvals. 2

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Form 8-K, Intuit, Inc., June 24, 2002

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SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: June 21, 2002 INTUIT INC.

By:

/s/ GREG J. SANTORA Greg J. Santora Senior Vice President and Chief Executive Officer

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