Brownstein et al v. Natick Residence, LLC et al

Filing 1

NOTICE OF REMOVAL by Natick Residence, LLC f/k/a GGP Natick Residence, LLC, The Howard Hughes Corporation from Middlesex Superior Court, case number 2011-03556g. ( Filing fee: $ 350, receipt number 0101-3652642 Fee Status: Filing Fee paid) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Affidavit, # 4 Civil Cover Sheet, # 5 Civil Cover Sheet)(Sampson, Lindsay)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LINDA and MICHAEL BROWNSTEIN,
BERNADINE ANTONUCCI, JOHN R.
CHISHOLM, DENISE A. COLLINSON,
DIAN FOX-HINDLEY, ROBERT H. HAAS
and BRIGITTE HAAS-BRUINING,
STANLEY H. KONEFAL, JR. and JOAN M.
WALSH-KONEFAL, SANDRA and
MYRON LEVINE as Trustees of THE
LEVINE AT NOUVELLE REALTY
TRUST, CLAIRE SANDELL, ARLENE and
IRVIN STIGLITZ, MONIKA and VINEET
VERMANI,
Civil Case No. _______________
Plaintiffs,
v.
NATICK RESIDENCE, LLC f/k/a GGP
NATICK RESIDENCE, LLC, HOWARD
HUGHES CORPORATION, and AARON
BARTELS,
Defendants.
NOTICE OF REMOVAL
Defendants Natick Residence, LLC f/k/a GGP Natick Residence, LLC (“Natick
Residence”) and The Howard Hughes Corporation (“HHC”) (collectively “Defendants”), by
their undersigned attorneys, hereby provide notice that they are removing this action originally
commenced in the Superior Court for Middlesex County, Commonwealth of Massachusetts
(“State Court”), to the United States District Court for the District of Massachusetts. In support
thereof, Defendants state as follows:
1.

Defendants exercise their rights under the provisions of 28 U.S.C. §§ 1332, 1441,

and 1446, to remove this case from the State Court.
2.

On or about October 5, 2011, plaintiffs Linda and Michael Brownstein, Bernadine

Antonucci, John R. Chisholm, Denise A. Collinson, Dian Fox-Hindley, Robert H. Haas and
Brigitte Haas-Bruining, Stanley H. Konefal, Jr. and Joan M. Walsh-Konefal, Sandra and Myron
Levine as Trustees of The Levine At Nouvelle Realty Trust, Claire Sandell, Arlene and Irvin
Stiglitz, and Monika and Vineet Vermani (collectively, “Plaintiffs”) filed a Complaint in the
State Court under the name and style of Linda and Michael Brownstein, Bernadine Antonucci,
John R. Chisholm, Denise A. Collinson, Dian Fox-Hindley, Robert H. Haas and Brigitte HaasBruining, Stanley H. Konefal, Jr. and Joan M. Walsh-Konefal, Sandra and Myron Levine as
Trustees of The Levine At Nouvelle Realty Trust, Claire Sandell, Arlene and Irvin Stiglitz,
Monika and Vineet Vermani v. Natick Residence, LLC f/k/a GGP Natick Residence LLC,
Howard Hughes Corporation, and Aaron Bartels, Civil Action No. 11-03556G.
3.

28 U.S.C. § 1441(a) provides, in part, that:

Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place
where such action is pending.
4.

This is a civil action that was instituted in the State Court and has not been tried.

5.

Defendants accepted service of the initial pleading setting forth the claims for

relief upon which this action is based on October 14, 2011. A true and correct copy of the initial
pleading is attached as Exhibit A to this Notice of Removal. True and correct copies of
Defendants’ respective Acceptance of Service pleadings are attached as Exhibit B to this Notice
of Removal.
6.

As more fully set forth below, this case is properly removed to this Court, because

this Court has original jurisdiction pursuant to 28 U.S.C. § 1332(a) in that the matter in
controversy as set forth in the Complaint exceeds the sum or value of $75,000, exclusive of

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interest and costs, and is between citizens of different states.
DIVERSITY JURISDICTION EXISTS PURSUANT TO 28 U.S.C. § 1332(a)
There Is Complete Diversity Of Citizenship Between Plaintiff And Defendant
7.

In determining whether complete diversity exists, the Court considers the

citizenship of all properly joined parties. See 28 U.S.C. § 1441(b). In this case, there is
complete diversity between Plaintiffs and each of the defendants.
8.

The Complaint states that Plaintiffs are “individuals who own one of the

residential Units, which are all located in Natick, Massachusetts.” Complaint at ¶¶ 2, 7
(“Plaintiffs all own Units at Nouvelle in Natick, Middlesex County, Massachusetts”). For
purposes of diversity of citizenship under 28 U.S.C. § 1332, Plaintiffs are citizens of the
Commonwealth of Massachusetts.
9.

The citizenship of an unincorporated entity, such as a limited liability company, is

determined by the citizenship of all of its members. Pramco, LLC v. San Juan Bay Marina, Inc.,
435 F.3d 51, 54 (1st Cir.2006); Getty Petroleum Marketing, Inc. v. 2211 Realty, LLC, No. 11–
40003–FDS, 2011 WL 2489988, at *2 (D. Mass. June 17, 2011). Further, “a corporation shall
be deemed to be a citizen of any State by which it has been incorporated and of the State where it
has its principal place of business.” 28 U.S.C. § 1332(c)(1); see also Hertz Corp. v. Friend, 130
S. Ct. 1181, 1186 (2010) (holding that “the phrase ‘principal place of business’ refers to the
place where the corporation’s high level officers direct, control, and coordinate the corporation’s
activities”).
10.

Defendant Natick Residence is a Delaware limited liability company, with its

principal place of business in Dallas, Texas. See Declaration of Peter Riley in support of
Defendants’ Notice of Removal at ¶ 2 (“Riley Decl.”), filed contemporaneously herewith;
Complaint at ¶ 3. The sole member of Natick Residence is The Howard Research and
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Development Corporation (“Howard Research and Development”). See Riley Decl. at ¶ 2.
Howard Research and Development is a Maryland corporation with its principal place of
business in Dallas, Texas. Id. For purposes of diversity of citizenship under 28 U.S.C. § 1332,
Natick Residence is a citizen of a state other than the Commonwealth of Massachusetts.
11.

Defendant HHC is a Delaware corporation with its principal place of business in

Dallas, Texas. See Riley Decl. at ¶ 3; Complaint at ¶ 4. For purposes of diversity of citizenship
under 28 U.S.C. § 1332, HHC is a citizen of a state other than the Commonwealth of
Massachusetts.
12.

The Complaint states that defendant “Aaron Bartels is an individual with a last

and usual place of address of 10340 S. Leavitt St., Chicago, IL 60643.” Complaint at ¶ 5. For
purposes of diversity of citizenship under 28 U.S.C. § 1332, Mr. Bartels is a citizen of a state
other than the Commonwealth of Massachusetts.
13.

There is complete diversity of citizenship for purposes of federal jurisdiction

under 28 U.S.C. § 1332(a).
The Amount In Controversy Exceeds $75,000, Exclusive Of Interest And Costs
14.

The Complaint alleges, among other things, that Plaintiffs bought 11 residential

luxury condominium units (the “Units”) “in detrimental reliance upon the intentional and/or
negligent misrepresentations of Defendants,” and that had Defendants made accurate
representations to them, they would not have closed on their purchase of the Units. Complaint at
¶¶ 1, 29, 37-39;
15.

The purchase price of each of Plaintiffs’ Units far exceeds $75,000, and for

several Plaintiffs, exceeds $1 million. See Chapter 93A Demand Letters, attached as Exhibit A
to Complaint. Indeed, the purchase prices for the Units ranges from $459,900 to $1,225,835.
Id.
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16.

The Complaint asserts counts for misrepresentation/fraud and violation of

Massachusetts General Laws Chapter 93A (“Chapter 93A”), and seeks the rescission of each of
the real estate transactions and all direct, consequential and benefit-of-the bargain damages, in
addition to Plaintiffs’ attorneys’ fees and multiple damages. See Complaint at Counts I and II
and Prayers for Relief at ¶¶ 2, 3.
17.

In their Chapter 93A demand letters, attached as Exhibit A to the Complaint and

incorporated by reference therein, Plaintiffs claim that their benefit-of-the bargain damages
should be measured as the difference between what they paid for their Units in reliance upon Mr.
Bartels’ alleged misrepresentations and the true value of what they received. See Exhibit A to
Complaint. In short, Plaintiffs claim that they should receive the difference between what they
paid for their Units and the prices that other units in the condominium complex sold for at an
auction in October 2009 and beyond – allegedly 25-60 percent of the original asking price.
Complaint at ¶ 31.
18.

Regardless of the amount of monetary damages that Plaintiffs may seek, the

amount in controversy requirement is satisfied by Plaintiffs’ request to rescind the sales of the
Units. It is well settled that “the value of the matter in controversy is measured not by the
monetary judgment which the plaintiff may recover, but by the judgment’s pecuniary
consequences to those involved in the litigation.” Richard C. Young & Co., LTD. v. Leventhal
D.D.S., M.S., 389 F.3d 1, 3 (1st Cir. 2004).
19.

In this case, there can be no dispute that the relief requested by Plaintiffs puts

more than $75,000 at issue, as the object of Plaintiffs’ suit is, among other things, to rescind the
sales of all eleven Units, each of which sold for far more than $75,000. See Exhibit A to
Complaint. Thus, the “pecuniary consequence” of Plaintiffs’ request for rescission exceeds

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$75,000. See id.; see also Fitzgerald Railcar Servs. of Omaha, Inc. v. Chief Indus., Inc., 141
Fed. Appx. 491, 493 (8th Cir. 2005) (stating that “the value of the object of litigation is not
measured simply by the amount in alleged default,…but also by the value of the lease agreement
if terminated”); Rosen v. Chrysler Corp., 205 F.3d 918, 921 (6th Cir. 2000) (stating that “in cases
where a plaintiff seeks to rescind a contract, the contract’s entire value, without offset, is the
amount in controversy”).
20.

The jurisdictional amount in controversy requirement, therefore, is satisfied.

21.

Because there is complete diversity of citizenship and the amount in controversy

exceeds $75,000, exclusive of costs and interests, this Court has original jurisdiction over
Plaintiffs’ claims pursuant to 28 U.S.C. § 1332(a).
PROCEDURAL COMPLIANCE
22.

In accordance with the requirements of 28 U.S.C. § 1446, this Notice of Removal

is filed within thirty (30) days after Defendants’ receipt of the initial pleading setting forth the
claims for relief upon which this action is based. Defendants remove this action without waiving
any objections or defenses that they may have.
23.

Pursuant to 28 U.S.C. §§ 1441, et seq., the right exists to remove this case from

the State Court to the United States District Court for the District of Massachusetts, Eastern
Division.
24.

The United States District Court for the District of Massachusetts embraces the

county in which the State Court action is now pending, and thus, this Court is a proper venue for
this action pursuant to 28 U.S.C. § 101.
25.

A true and correct copy of the initial pleading served on Defendants is attached as

Exhibit A to this Notice of Removal. In addition, pursuant to 28 U.S.C. § 1446(a) and Local

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Rule 81.1 of this Court, Defendants will file certified or attested copies of all records and
proceedings in the State Court and a certified or attested copy of all docket entries in the State
Court within 28 days after filing this Notice of Removal.
26.

As set forth in the consent to removal filed contemporaneously herewith,

Defendants remove this action with the consent of each of the defendants that have been served
with process, namely Aaron Bartels.
27.

Written notice of the filing of this Notice of Removal will be served upon counsel

for Plaintiffs as required by law.
28.

A true and correct copy of this Notice of Removal will be filed with the clerk of

the State Court, as required by law, and served upon counsel for Plaintiffs.
29.

Defendants reserve any and all rights to assert any and all defenses to the

Complaint, and to amend or supplement this Notice of Removal as necessary.
30.

WHEREFORE, Defendants hereby remove this action from the State Court,

where it is now pending, to this honorable Court, and respectfully request that this Court accept
jurisdiction of this action, and henceforth that this action be placed upon the docket of this Court
for further proceedings, as though this case had originally been initiated in this Court.

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Respectfully submitted,
NATICK RESIDENCE, LLC f/k/a GGP
NATICK RESIDENCE, LLC and HOWARD
HUGHES CORPORATION,
By their attorneys,

Dated: November 1, 2011

/s/Lindsay S. Bishop
John C. Blessington (BBO# 549754)
[e-mail]
Lindsay S. Bishop (BBO# 670251)
[e-mail]
K&L GATES LLP
State Street Financial Center
One Lincoln Street
Boston, MA 02111-2950
Tel.: [phone]
Fax: [phone]

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CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF),
and paper copies will be sent by United States First Class Mail, postage prepaid, to those
indicated as non-registered participants as set forth below, on this 1st day of November 2011.
By First Class Mail:

By First Class Mail:

Tyler E. Chapman
[e-mail]
Michael Thad Allen
[e-mail]
Todd & Weld, LLP
28 State Street, 31st Floor
Boston, MA 02109
[phone]

Martin M. Fantozzi
[e-mail]
Jonathan E. Small
[e-mail]
Goulston & Storrs
400 Atlantic Avenue
Boston, MA 02110-3333
[phone]

/s/Lindsay S. Bishop
Lindsay S. Bishop

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