Apple Marketing Company v. Linzer Products Corporation

Filing 1

NOTICE OF REMOVAL by Linzer Products Corporation from Oakland County Circuit Court, case number 11-116069-CK. Receipt No: 0645-2902687 - Fee: $ 350 [Previously dismissed case: No] [Possible companion case(s): None] (Hudson, Paul)

Apple Marketing Company v. Linzer Products Corporation

Doc. 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

APPLE MARKETING COMPANY, a Michigan corporation, Case No. Plaintiff, Hon. -vsLINZER PRODUCTS CORPORATION, a New York corporation, Defendant. Zachary B. Mack (P62742)
SALES REPRESENTATIVE LAW CENTER, PLLC

Removed from Michigan Circuit Court for the County of Oakland Case No. 11-116069-CK Hon. Wendy L. Potts Frederick A. Acomb (P44523) Paul D. Hudson (P69844)
MILLER CANFIELD PADDOCK AND STONE, PLC

1370 N. Oakland Boulevard, Suite 110 Waterford, MI 48327 [phone] Attorneys for Plaintiff

150 W. Jefferson, Suite 2500 Detroit, MI 48226 [phone] [e-mail] [e-mail] Attorneys for Defendant

NOTICE OF REMOVAL TO: CHIEF JUDGE AND JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

ON NOTICE TO: Clerk Oakland County Circuit Court 1200 North Telegraph Road Pontiac, Michigan 48341-0404 Zachary B. Mack (P62742)
SALES REPRESENTATIVE LAW CENTER, PLLC

1370 N. Oakland Boulevard, Suite 110 Waterford, MI 48327

Dockets.Justia.com

HONORABLE JUDGES: Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, Defendant Linzer Products Corporation gives notice of removal of this action, Oakland County Circuit Court Case No. 11-116069-CK, to the United States District Court for the Eastern District of Michigan, Southern Division. As grounds for removal Linzer states as follows: TIMELINESS OF REMOVAL 1. On January 6, 2011, Plaintiff Apple Marketing Company filed a civil action

against Linzer in the Oakland County Circuit Court, entitled Apple Marketing Company v. Linzer Products Corporation, Case No. 11-116069-CK. 2. Due to the bare and conclusory allegations in Plaintiff's complaint, Linzer could

not ascertain whether the case stated was removable. Linzer filed a motion for a more definite statement of the claims on February 25, 2011. The court granted the motion on March 9, 2011. 3. 4. On March 15, 2011, Plaintiff filed a First Amended Complaint. Under 28 U.S.C. § 1446(b), it could "first be ascertained that the case is one

which is or has become removable" on March 15, 2011, when Plaintiff filed the First Amended Complaint. 5. § 1446(b). 6. Copies of all process, pleadings, and orders served upon Linzer to date are Accordingly, this Notice of Removal has been timely filed under 28 U.S.C.

collectively attached hereto as Exhibit A. BASIS FOR REMOVAL 7. This cause is a civil action within the meaning of the Acts of Congress relating to

removal of causes.

2

8.

Plaintiff alleges in its First Amended Complaint that it is a Michigan corporation

with its principal place of business in Oakland County, Michigan. (Ex. A, First Am. Compl. ¶ 1.) 9. Plaintiff also alleges that Linzer is a New York corporation with its principal

place of business in New York. (Id. ¶ 2.) These allegations are correct. 10. There is therefore complete diversity of citizenship between Plaintiff and

Defendant under 28 U.S.C. § 1332(a). 11. Plaintiff is seeking the recovery of commissions allegedly owed for the life of

certain products and for all past and future sales to several named and unnamed customers Plaintiff allegedly procured for Linzer. (See, e.g., First Am. Compl. ¶ 23 ("Plaintiff had procured additional accounts, orders and/or sales, including but not limited to Boswick-Braun Co., The Andersons, Self Serve Lumber, Ace Stores, Hardware Distributors, and Aco Hardware, which, upon information and belief, has resulted in sales of Defendant's products beyond June 30, 2010 which Plaintiff is owed its rightfully earned commissions"); ¶ 26 ("Plaintiff has incurred substantial damages and will continue to suffer such damages in the future"); ¶ 27 ("Such damages include, but are not necessarily limited to, the agreed upon applicable commission rate on all sales of Defendant's products that were made as a result of Plaintiff's efforts prior to the unilateral termination of the parties' agreement by Defendant"); ¶ 31 ("Under the Procuring Cause Doctrine, Plaintiff is entitled to a commission on all accounts, sales and orders of Defendant's products procured as a result of Plaintiff's efforts, even if the orders and sales take place after the termination of the parties' agreement"); ¶ 33 ("The sales and accounts procured by Plaintiff have and will likely continue to do substantial business with and for Defendant, based upon Plaintiff's efforts prior to the unilateral termination of the parties' agreement by

3

Defendant")). Based on Plaintiff's allegations, the amount in controversy exceeds $75,000.00, exclusive of interests and costs. 12. This action is therefore properly removable under 28 U.S.C. § 1441 because the

this Court has original jurisdiction under 28 U.S.C. § 1332(a), which provides: "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States[.]" 13. Plaintiff brought this action in the Oakland County Circuit Court, which is located

in a county embraced by the United States judicial district for the Eastern District of Michigan, Southern Division. § 1441(a). 14. Linzer has not previously sought similar relief. Upon information and belief, Thus, this action is properly removed to this Court under 28 U.S.C.

Linzer is the only party defendant to this action. 15. Pursuant to 28 U.S.C. § 1446, copies of this notice of removal will this day be

filed in the Oakland County Circuit Court and served by first class mail upon counsel for Plaintiff.

4

WHEREFORE, Linzer respectfully requests that this Honorable Court take jurisdiction of this action and issue all necessary orders and process to remove the action from the Oakland County Circuit Court to the United States District Court for the Eastern District of Michigan.

Respectfully submitted, MILLER, CANFIELD, PADDOCK AND STONE, PLC By: s/ Paul D. Hudson_______ Frederick A. Acomb (P44523) Paul D. Hudson (P69844) Attorneys for Defendant 150 W. Jefferson, Ste. 2500 Detroit, MI 48226 [phone] [e-mail] [e-mail]

March 25, 2011

5

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 25, 2011 I electronically filed a copy of this Notice of Removal via the Court's ECF system, and served a copy via first-class United States Mail, postage prepaid, on:

Zachary B. Mack, Esq. SALES REPRESENTATIVE LAW CENTER, PLLC 1370 N. Oakland Boulevard, Suite 110 Waterford, MI 48327

I FURTHER CERTIFY that on March 25, 2011 I served a copy of this Notice of Removal via first-class United States mail, postage prepaid on:

Clerk Oakland County Circuit Court 1200 North Telegraph Road Pontiac, Michigan 48341-0404

Respectfully submitted, MILLER, CANFIELD, PADDOCK AND STONE, PLC By: s/ Paul D. Hudson_______ Frederick A. Acomb (P44523) Paul D. Hudson (P69844) Attorneys for Defendant 150 W. Jefferson, Ste. 2500 Detroit, MI 48226 [phone] [e-mail] [e-mail]

March 25, 2011

18,751,240.1\147091-00001

6

INDEX OF EXHIBIT EXHIBIT A Register of State Court Action and copies of Pleadings