Doe v. Project Fair Bid, Inc. et al

Filing 1

NOTICE OF REMOVAL from King County Superior Court, case number 11-2-06859-5 SEA; (Receipt # 0981-2427616), filed by Foundation Capital, First Round Capital, Mayfield Fund. (Attachments: # 1 Exhibit A & B, # 2 Civil Cover Sheet)(Angelis, Theodore)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOHN DOE, individually and on behalf of all
the members of the Class of persons
similarly situated,

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v.

No.
NOTICE OF REMOVAL

Plaintiffs,

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PROJECT FAIR BID, INC., d/b/a
BIGDEAL.COM, a Delaware corporation,

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MAYFIELD FUND,

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FOUNDATION CAPITAL,

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FIRST ROUND CAPITAL, and

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DOES 1-20,
Defendants.

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TO:

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AND TO: PLAINTIFF, THROUGH HIS COUNSEL OF RECORD

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CLERK OF THE COURT

PLEASE TAKE NOTICE that defendant Project Fair Bid, Inc. d/b/a Bigdeal.com

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(“Project Fair Bid”), and the defendants named in the complaint as “Mayfield Fund,”

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“Foundation Capital,” and “First Round Capital” (collectively, the “Investor Defendants”)

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hereby remove the above-captioned action from the Superior Court of the State of Washington

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NOTICE OF REMOVAL - 1
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K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

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in and for King County to the United States District Court for the Western District of

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Washington. This Notice of Removal is filed pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1446

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and 1453, and Western District of Washington Civil Rule 101.
In support of its removal of this action, the defendants state as follows:

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Timeliness of Removal and Venue in This Court

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1.

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On or about February 16, 2011, plaintiff John Doe filed this lawsuit in the

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Superior Court of the State of Washington in and for King County, Case No. 11-2-06859-5

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SEA. A copy of plaintiff’s state court complaint (the “Complaint”) is attached to this Notice as

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Exhibit A.
2.

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The Complaint named as defendants Project Fair Bid and the Investor

Defendants. The Complaint also identifies “Does 1-20” as unnamed defendants.

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3.

Plaintiff purported to serve process on Project Fair Bid on April 13, 2011.1

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4.

Plaintiff purported to serve process on each of the Investor Defendants on April

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13, 2011.

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5.

This Notice of Removal is filed within thirty days of service of process2 on all

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defendants and within 1 year of the filing of the Complaint. It therefore is timely under 28

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U.S.C. § 1446(b).

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6.

The Superior Court of the State of Washington in and for King County is located

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within the Western District of Washington. Venue for the removed action is therefore proper in

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this District pursuant to 28 U.S.C. § 1441(a).
7.

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All named defendants consent to this removal.

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In removing this case, defendants do not waive any defenses, including but not limited to
defenses previously available under Washington Civil Rule 12 and now available under Fed. R.
Civ. P. 12.
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Defendants are removing this case now, in an abundance of caution, to ensure that there is no
issue regarding timeliness. At least one defendant, however, appears not to have been served
properly. The 30-day deadline for any such defendant to remove this case has not yet begun to
run. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322 (1999).

NOTICE OF REMOVAL - 2
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K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

Removal Is Proper Based on Federal Question Jurisdiction

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This lawsuit is properly removable under 28 U.S.C. § 1441(a)-(c) because this

Court has original jurisdiction over the subject matter of this lawsuit. See 28 U.S.C. § 1331.
9.

The Court has original jurisdiction over the lawsuit, pursuant to 28 U.S.C.

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§ 1331, because the Complaint alleges a violation of the Racketeer Influenced and Corrupt

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Organizations Act (“RICO”), 18 U.S.C. § 1962(c). See Complaint ¶¶ 119-205.
Removal Is Proper Pursuant to the Class Action Fairness Act

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10.

This lawsuit is subject to removal pursuant to the Class Action Fairness Act of

2005, 28 U.S.C. §§ 1332(d), 1453 (“CAFA”).
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CAFA grants federal courts original jurisdiction over, and permits removal of,

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class actions in which: (1) the aggregate number of proposed plaintiffs is 100 or more; (2) any

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member of a class of plaintiffs is a citizen of a state different from any defendant, thus

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establishing the so-called “minimal diversity;” (3) the primary defendants are not states, state

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officials, or other governmental entities; and (4) the aggregate amount in controversy of all of

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the putative class members’ claims exceeds $5,000,000, exclusive of interest and costs.

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28 U.S.C. §§ 1332(d)(2)(A), (d)(5)(A)-(B), and (d)(6). Those jurisdictional requirements are

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satisfied by the allegations contained in plaintiff’s Complaint:

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a.

Plaintiff Seeks Relief on Behalf of a Class Consisting of More Than 100

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Members. In the Complaint, plaintiff claims to seek relief on behalf of a class of “[a]ll persons

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who in the United States, from the date six years prior to the filing of this complaint to the date

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of judgment in this case, [allegedly] suffered damages” based on the allegations in the

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complaint. Complaint ¶ 87. Plaintiff alleges that the number of putative class members is “in

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the tens of thousands.” Id. ¶ 89. Based on those allegations, the aggregate number of class

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members that plaintiff claims to represent is greater than 100 and thus satisfies 28 U.S.C.

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§ 1332(d)(5)(B).

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NOTICE OF REMOVAL - 3
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K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

b.

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Plaintiff Is A Citizen Of A Different State Than Project Fair Bid.

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Plaintiff alleges that he is a citizen of the state of Washington. Complaint ¶ 7. Plaintiff alleges

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that Project Fair Bid is a Delaware corporation whose principal place of business is California.

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Id. ¶ 6. Pursuant to 28 U.S.C. § 1332(c)(1), Project Fair Bid is a citizen of Delaware and

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California. Hertz Corp. v. Friend, 130 S. Ct. 1181, 1186 (2010). The minimal diversity

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required by CAFA is present because plaintiff and Project Fair Bid are citizens of different

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states. 28 U.S.C. § 1332(d)(2)(A)
c.

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Defendants Are Not States, State Officials, or Other Government

Entities. Plaintiff alleges that defendants are private entities, which are not states, state

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officials, or government entities. Complaint ¶ 6. The requirement of 28 U.S.C. §

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1332(d)(5)(A) is therefore satisfied.
d.

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The $5,000,000 Amount-in-Controversy Is Satisfied. Plaintiff alleges

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that members of the purported class have suffered actual damages that include, but are not

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limited to, “millions of dollars” in fees paid to Project Fair Bid. See, e.g., Complaint ¶ 195.

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Plaintiff also alleges that the purported class is entitled to treble any actual damages. Id.

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¶¶ 201, 213, 256. Plaintiff also alleges that the purported class is entitled to disgorgement of

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“all monetary benefits” paid by any purported class member, which necessarily exceed the

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“millions of dollars” in fees allegedly paid. Id. ¶ 100. In sum, the defendants believe in good

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faith that the aggregate amount of the class members’ claims exceeds $5,000,000, and the

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amount-in-controversy requirement of 28 U.S.C. § 1332(d)(6) is satisfied.
Removal Has Been Effected Properly and All Defenses Are Preserved

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Pursuant to 28 U.S.C. § 1446(d), Defendants have promptly provided notice of

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this Notice of Removal to the Superior Court of the State of Washington in and for King

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County.

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NOTICE OF REMOVAL - 4
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K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

12.

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A true and correct copy of this Notice of Removal is being served on plaintiff

through counsel, pursuant to 28 U.S.C. § 1446(d).
13.

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Pursuant to 28 U.S.C. § 1446(a) and Local Rule 101(b), and the conjoined

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verification of Theodore J. Angelis, attached as Exhibit B is a copy of all pleadings and

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documents filed in the state court lawsuit and all other process served upon the Investment

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Defendants (other than plaintiff’s Complaint, which is attached as Exhibit A).
14.

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By removing this lawsuit, Defendants do not waive any defenses, objections, or

motions available to it under state and federal law

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WHEREFORE, pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1446, 1453, and Local Rule

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101, defendants hereby remove this lawsuit from the Superior Court of the State of Washington

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in and for King County to the United States District Court for the Western District of

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Washington.
DATED this 12th day of May, 2011.

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Respectfully submitted,

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K&L GATES LLP

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By:
s/ Theodore J. Angelis
Todd L. Nunn, WSBA # 23267
Theodore J. Angelis, WSBA # 30300
Taki Flevaris, WSBA # 42555
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Phone: [phone]
Fax: [phone]
Email: [e-mail]

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Attorneys for Defendants Named as
“Mayfield Fund,” “Foundation Capital,” and
“First Round Capital.”

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///

NOTICE OF REMOVAL - 5
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K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

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GORDON & REES LLP

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By:
s/ David W. Silke
David W. Silke, WSBA # 23761
701 Fifth Avenue, Suite 2100
Seattle, WA 98104
Phone: [phone]
Fax: [phone]
Email: [e-mail]

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Attorneys for Defendant Project Fair Bid,
Inc. d/b/a Bigdeal.com

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VERIFICATION

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Pursuant to Western District of Washington Local Rule 101(b), the undersigned counsel
for the Investor Defendants hereby verifies that the pleadings and other documents attached
hereto as Exhibit A and Exhibit B are true and complete copies of the pleadings and
documents in the state court proceeding and all process served on the Investor Defendants.
I declare under penalty of perjury that the foregoing is true and correct.
EXECUTED at Seattle, Washington this 12th day of May, 2011.

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s/ Theodore J. Angelis
Theodore J. Angelis, WSBA # 30300
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Phone: [phone]
Fax: [phone]
Email: [e-mail]

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NOTICE OF REMOVAL - 6
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K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]

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CERTIFICATE OF ECF FILING AND SERVICE
I certify that on May 12, 2011, I arranged for electronic filing of the foregoing document and
attached Exhibits with the Clerk of the Court using the CM/ECF system, and I hereby certify
that I have arranged for service of the same by personal delivery/messenger, to the following:
William Houck
Houck Law Firm P.S.
4045 262nd Ave. SE
Issaquah, WA 98029
Attorneys for Plaintiffs

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s/ Theodore J. Angelis
Theodore J. Angelis
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
Phone: [phone]
Fax: [phone]
E-mail: [e-mail]

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NOTICE OF REMOVAL - 7
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K&L GATES LLP
925 FOURTH AVENUE
SUITE 2900
SEATTLE, WASHINGTON 98104-1158
TELEPHONE: [phone]
FACSIMILE: [phone]