Lydia Hutson LLC v. National Football League Inc

Filing 1

NOTICE of Removal from 9th JDC Rapides Parish, Case Number 240,313 (Filing fee $350, receipt number 0536-1536307) filed by The National Football League. (Attachments: # 1 Civil cover sheet, # 2 state court pleadings)(aty,McPeak, Agnieszka)

v. The National Football League

Doc. 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA * * * Plaintiff, * * VERSUS * * NATIONAL FOOTBALL LEAGUE * * Defendant. * * * * * * * * **************************** * LYDIA HUTSON, L.L.C. CIVIL ACTION NO. SECTION " " JUDGE MAGISTRATE JUDGE

NOTICE OF REMOVAL PLEASE TAKE NOTICE that defendant National Football League ("NFL"), through undersigned counsel and with full reservation of all exceptions, objections, rights, and defenses, hereby gives notice of the removal of the above-captioned action from the Ninth Judicial District Court for the Parish of Rapides, State of Louisiana, to the United States District Court for the Western District of Louisiana, pursuant to 28 U.S.C. Sections 1332 and 1441, and represents as follows:

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Dockets.Justia.com

1.

On or about December 9, 2010, plaintiff Lydia Hutson L.L.C. commenced

this action by filing a pleading entitled "Petition for Damages & For Injunctive Relief" (hereinafter the "Petition") against the NFL in the Ninth Judicial District Court for the Parish of Rapides, State of Louisiana, Docket Number 240,313. 2. Plaintiff alleges that it is the owner of the trademark "BELIEVE DAT"

and seeks damages and injunctive relief relating to the NFL's purported unauthorized use of the trademark. See Pet. at ¶¶ 3, 10-11. 3. As set forth more fully below, this case is properly removed to this Court

pursuant to 28 U.S.C. Section 1441 because the NFL has satisfied the procedural requirements for removal, and this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. Section 1332. I. THE NFL HAS SATISFIED THE PROCEDURAL REQUIREMENTS FOR REMOVAL. 4. 5. The Petition was filed on December 9, 2010. Plaintiffs purportedly served the petition on the NFL, through its Agent

National Football League, 230 Park Avenue, New York, New York, 70017, on December 13, 2010. 6. This Notice of Removal has been filed within thirty days of the NFL's first

receipt, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which this action is based, and is therefore timely under 28 U.S.C. Section 1446(b). 7. The NFL, defendant herein, files this Notice of Removal. There are no

other defendants. Thus, all defendants have joined in filing this Notice of Removal. 8. The Ninth Judicial District Court for the Parish of Rapides, State of See 28 U.S.C. § 98(c).

Louisiana, is located within the Western District of Louisiana. -2-

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Therefore, venue is proper pursuant to 28 U.S.C. Section 1441(a) because the Western District of Louisiana is the "district and division embracing the place where such action is pending." 9. 10. No previous application has been made for the relief requested herein. As required by 28 U.S.C. Section 1446(a), copies of all process, pleadings

and orders served upon the NFL, which papers include the Petition, are attached in globo as Exhibit A. 11. As required by 28 U.S.C. Section 1446(d), promptly after the filing of this

Notice of Removal, the NFL will give written notice of this Notice of Removal to opposing counsel and will file a copy of the Notice of Removal with the Clerk of Court of the Ninth Judicial District Court for the Parish of Rapides, State of Louisiana, which shall effect the removal. II. THIS COURT HAS ORIGINAL JURISDICTION UNDER 28 U.S.C. SECTION 1332 BECAUSE COMPLETE DIVERSITY EXISTS AND THE AMOUNT IN CONTROVERSY EXCEEDS $75,000, EXCLUSIVE OF INTEREST AND COSTS. 12. This lawsuit is removable because complete diversity exists and the

amount in controversy exceeds the sum of $75,000.00, exclusive of interest and costs. See 28 U.S.C. § 1332(a). A. Complete Diversity Exists. 13. The district courts of the United States have original subject matter

jurisdiction over civil actions between citizens of different states in which the amount in controversy exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332(a). 14. For purposes of determining whether diversity jurisdiction exists, limited

liability companies and unincorporated associations are deemed to be a citizen of each state of which any of the company's members is a citizen. See Harvey v. Grey Wolf Drilling Co., 542

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F.3d 1077, 1080 (5th Cir. 2008). Individuals are citizens of the state where they are domiciled. Coury v. Prot, 85 F.3d 244, 249-50 (5th Cir. 1996). 15. The citizenship of Plaintiff is not described in the Petition; however, Lydia

Hutson, L.L.C. is a Louisiana limited liability company and a "resident and domiciliary of the City of Pineville, Parish of Rapides, State of Louisiana." see Pet. at Preamble. Based on information and belief, Lydia Hutson, L.L.C. has a single member, Lydia Hutson, who is a citizen of Louisiana. 16. The NFL is an unincorporated association of 32 football teams organized

and existing under the laws of the State of New York with its principal place of business at 280 Park Avenue, New York, New York 10017. None of the members of the NFL, including the New Orleans Louisiana Saints, L.L.C., are Louisiana citizens. Because the plaintiff is a citizen of Louisiana, and neither the defendant nor any of the NFL members are citizens of Louisiana, this action is between citizens of different states and complete diversity exists. B. The Jurisdictional Amount Is Satisfied. 17. The amount in controversy must exceed $75,000, exclusive of interest and

costs, in order for diversity jurisdiction to exist. See 28 U.S.C. § 1332. 18. The Fifth Circuit, in Grant v. Chevron Phillips Chemical Co. L.P., 309

F.3d 864 (5th Cir. 2002), held that the amount in controversy requirement is satisfied either by demonstrating that it is "facially apparent" from the petition that the claim likely exceeds $75,000, exclusive of interest and costs, or "by setting forth the facts in controversy preferably in the removal petition . . . that support a finding of the requisite amount." Id. at 868 (emphasis in original).

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19.

In the petition, Plaintiff seeks an award of "all damages under Louisiana

law including the right to recover all profits derived from and/or all damages suffered" as a result of the NFL's purported infringing use of the BELIEVE DAT mark. See Pet. ¶ 12

(emphasis added). Further, the Plaintiff furnished a security in the amount of $25,000 in relation to a temporary restraining order. See Temporary Restraining Order and Rule for Preliminary Injunction at p.1, Exh. A herein. 20. The NFL denies Plaintiff's allegations of Defendant's liability, but

regardless of that denial, the amount put in controversy by Plaintiff's claim exceeds $75,000, exclusive of interest and costs. 21. The preceding facts demonstrate that the amount in controversy arising

from Plaintiff's claim for relief exceeds $75,000, exclusive of interest and costs. 22. Once a defendant shows in the removal petition that the amount in

controversy exceeds the jurisdictional amount, the "plaintiff can defeat diversity jurisdiction only by showing to a 'legal certainty' that the amount in controversy does not exceed $75,000." See Grant v. Chevron Phillips Chemical Co., 309 F.3d at 869 (quoting De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995)).

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WHEREFORE, defendant the National Football League hereby removes this action from the Ninth Judicial District Court for the Parish of Rapides, State of Louisiana, to the United States District Court for the Western District of Louisiana.

Respectfully submitted, Dated: December 17, 2010 /s/ Agnieszka A. McPeak Phillip A. Wittmann, 13625 (T.A.) Michael Q. Walshe, Jr., 23968 Lesli D. Harris, 28070 Agnieszka A. McPeak, 31259 STONE PIGMAN WALTHER WITTMANN L.L.C. 546 Carondelet Street New Orleans, Louisiana 70130 Telephone: [phone] Attorneys for Defendant, The National Football League

CERTIFICATE I hereby certify that a copy of the above and foregoing Notice of Removal has been served upon the following counsel of record and parties by placing same in the United States mail, postage prepaid, this 17th day of December, 2010. Thomas D. Davenport, Jr., Esq. 1628 Metro Drive Alexandria, LA 71301 /s/ Agnieszka A. McPeak

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