Arliss et al v. Groupon, Inc. et al

Filing 1

NOTICE OF REMOVAL from King County Superior Court, case number 11-2-15609-5-SEA; (Receipt # 0981-2444130), filed by Groupon, Inc.. (Attachments: # 1 Exhibit A (pp 9-53) - State Court Record, # 2 Civil Cover Sheet)(Keehnel, Stellman) Modified Exhibit A page count per filer on 5/27/2011 (RE).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BARRIE ARLISS and JEFF LAWRIE,
individually and on behalf of all others
similarly situated,

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Plaintiff,

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v.

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GROUPON, INC., a Delaware
Corporation, d/b/a Groupon, FULL
CIRCLE FARMS, Inc. and SPA BLIX,
Inc., Washington State Corporations,
Individually and on Behalf of All Similarly
Situated Entities, and DOES 1 through 100,
inclusive,

No.
NOTICE OF REMOVAL OF ACTION
BY DEFENDANT GROUPON, INC. TO
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
WASHINGTON PURSUANT TO 28
U.S.C. § 1332

Defendants.

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TO:

THE CLERK OF THE COURT OF THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF WASHINGTON

AND TO:

PLAINTIFFS THROUGH THEIR COUNSEL OF RECORD

PLEASE TAKE NOTICE that, for the reasons set forth below, defendant Groupon,
Inc. (“Groupon”), through its undersigned counsel, hereby removes the above-captioned action
from the Superior Court of the State of Washington in and for King County to the United States
District Court for the Western District of Washington. This Notice of Removal is filed

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NOTICE OF REMOVAL - 1

DLA Piper LLP (US)
701 Fifth Avenue, Suite 7000
Seattle, WA 98104-7044 Tel: [phone]

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pursuant to 28 U.S.C. §§ 1332, 1441, 1446, and 1453, and Western District of Washington

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Local Civil Rule 101. In support of its removal of this action, Defendant states as follows:

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I.

JURISDICTION
1.

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This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(d), as

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amended by the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (2005)

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(“CAFA”). This is a putative class action in which (a) there are 100 or more members of

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Plaintiffs’ proposed class; (b) at least one member of the proposed class is a citizen of a state

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other than that of a defendant; and (c) the amount in controversy exceeds the sum or value of

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$5,000,000 in aggregate. Removal to this Court is therefore proper under 28 U.S.C. §§ 1332,

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1441, 1446, and 1453.

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II.

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BACKGROUND
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On or about April 29, 2011, plaintiff Barrie Arliss filed a Class Action

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Complaint (the “Complaint”) in the Superior Court of the State of Washington in and for King

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County, captioned Arliss v. Groupon, Inc. et al., Case No. 11-2-15609-5 SEA (the “Action”).

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On or about May 17, 2011, plaintiffs Barrie Arliss and Jeff Lawrie (collectively, “Plaintiffs”)

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filed an Amended Class Action Complaint (the “Amended Complaint”) in the Action. There

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have been no other proceedings in this Action. Pursuant to 28 U.S.C. § 1446(a) and Local Rule

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101(b), and the conjoined verification of Stellman Keehnel, true and correct copies of all

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process, pleadings, and orders served upon Groupon in the Action, as well as all other

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pleadings and documents filed in the Action, are attached to this Notice as Exhibit A.

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3.

This notice of removal is being filed within 30 days of service on Groupon of

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the original Complaint and within 30 days of service on all other defendants of the original

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Complaint. This notice of removal is therefore timely under 28 U.S.C. § 1446(b).

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4.

This Notice of Removal is filed in the United States District Court for the

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Western District of Washington, which is the district in which Plaintiffs filed the Complaint

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and the Amended Complaint in this Action. 28 U.S.C. §§ 1441(a), 1446(a).
NOTICE OF REMOVAL - 2

DLA Piper LLP (US)
701 Fifth Avenue, Suite 7000
Seattle, WA 98104-7044 Tel: [phone]

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III.

REMOVAL IS PROPER PURSUANT TO CAFA
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This Action is a putative class action brought by Plaintiffs purporting to state

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claims against Groupon, Full Circle Farms, Inc., and Spa Blix, Inc. (collectively, “Defendants”)

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for declaratory relief, alleged violations of Washington’s gift certificate statute, RCW

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19.240.005 et seq., alleged violations of the Washington Consumer Protection Act (the

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“CPA”), RCW 19.86.010 et seq., and for restitution/unjust enrichment.

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6.

This Action meets the applicable definition of a class action under CAFA, which

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is: “any civil action filed under Rule 23 of the Federal Rules of Civil Procedure or similar State

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statute or rule of judicial procedure.” 28 U.S.C. § 1332(d)(1)(B). The Amended Complaint

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filed in the Action states that “Plaintiffs bring this action on behalf of themselves and a Class of

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individuals seeking injunctive relief, damages, and reasonable costs and attorneys’ fees” for

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Defendants’ alleged conduct. (Amended Complaint § I, ¶ 12; see id. § IX.)

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Plaintiffs claim that Groupon sells gift certificates containing expiration dates to

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consumers in violation of Washington’s gift certificate law and the CPA, that Groupon has

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been unjustly enriched, and that Plaintiffs and the putative class are entitled to restitution. (Id.

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§ I, ¶¶ 1-12.) Based on Plaintiffs’ allegations, Plaintiffs seek an order awarding declaratory and

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injunctive relief, requiring an accounting and disgorgement of all revenue gained by Groupon

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through the sale of its vouchers to Washington consumers, restitution, actual and liquidated

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damages, reasonable costs and attorneys’ fees, and pre-and post-judgment interest. (See id. § I,

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¶ 12; id. § VII, Count IV, ¶ 3; id. § IX, Prayer for Relief.)

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8.

As set forth below, this action satisfies each of the requirements of § 1332(d),

and this Court therefore has subject-matter jurisdiction under CAFA.

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A.

The Proposed Class Consists of 100 or More Members

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9.

CAFA applies when the number of members of all proposed classes in the

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aggregate is 100 or greater. See 28 U.S.C. § 1332(d)(5)(B).

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NOTICE OF REMOVAL - 3

DLA Piper LLP (US)
701 Fifth Avenue, Suite 7000
Seattle, WA 98104-7044 Tel: [phone]

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10.

Plaintiffs allege that the “exact number of Class members is unknown” but that

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“Defendants have contracted with thousands of Class members throughout the State of

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Washington.” (Amended Complaint § VI, ¶ 2 (emphasis added).) Accordingly, Plaintiffs’

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proposed class exceeds 100 members and far exceeds the minimum class member requirement

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under CAFA.

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B.

Minimal Diversity Required by CAFA Exists

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The requisite diversity of citizenship under CAFA is satisfied when “any

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member of a class of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C.

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§ 1332(d)(2)(A) (emphasis added).

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12.

According to the Amended Complaint, Plaintiffs Arliss and Lawrie are both

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residents of the State of Washington. (Amended Complaint § III, ¶¶ 1-2.) Accordingly,

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Plaintiffs are domiciled in, and are citizens of, the State of Washington. Groupon is a Delaware

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corporation with its principal place of business in Chicago, Illinois. (See id. § III, ¶ 3 (stating

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that Groupon is “headquartered at 600 West Chicago Avenue, Suite 620, Chicago, IL.”).)

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Thus, Groupon is a citizen of Delaware and Illinois. 28 U.S.C. § 1332(c)(1); see Hertz Corp. v.

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Friend, -- U.S. --, 130 S. Ct. 1181, 1185-86 (2010) (“‘principal place of business’ refers to the

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place where the corporation’s high level officers direct, control, and coordinate the

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corporation’s activities. . . . We believe [this] will typically be found at a corporation’s

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headquarters.”).

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13.

Therefore, the diversity requirements for removal to federal court under CAFA

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are satisfied with regard to Plaintiffs’ putative class because Plaintiffs reside in and are citizens

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of a state (Washington) different than the states of which Groupon is a citizen (Delaware and

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Illinois).

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NOTICE OF REMOVAL - 4

DLA Piper LLP (US)
701 Fifth Avenue, Suite 7000
Seattle, WA 98104-7044 Tel: [phone]

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C.

The Amount in Controversy Requirement is Satisfied

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Under CAFA, the claims of the individual class members are aggregated to

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determine whether the amount in controversy exceeds the required “sum or value of

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$5,000,000, exclusive of interest and costs.” 28 U.S.C. §§ 1332(d)(2), (d)(6).
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Although Plaintiffs allege, in conclusory fashion, that the amount in controversy

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“is well below $5,000,000” (Amended Complaint § VII), based on the substantive allegations

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in Plaintiffs’ Amended Complaint, it is clear that the amount in controversy in this Action

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significantly exceeds $5,000,000, exclusive of interest and costs. Plaintiffs allege that

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Groupons1 “invariably” contain an allegedly unlawful expiration date (Amended Complaint §

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II, ¶ 4), and that they “are therefore void under RCW 19.240.110.” (Id. § VIII, Count I, ¶ 4.)

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Plaintiffs similarly allege that Defendants “should not be permitted to retain the monies

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belonging to Plaintiffs and the Class that they were paid in the form of payment for gift

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certificates and that Defendants unjustly received as a result of its [sic] misconduct alleged

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herein.” (Id. § VIII, Count IV, ¶ 3.) Accordingly, the allegations of Plaintiffs’ Amended

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Complaint plainly establish that Plaintiffs seek to recover, at a minimum, the full paid value of

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all Groupons sold in Washington on or after April 29, 2008. (See also id. § VI, ¶ 1; id. § IX,

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Prayer for Relief.) The total paid value of all Groupons sold in Washington from August 3,

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2009, when Groupon first began selling vouchers in Washington, to April 29, 2011

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significantly exceeds $10 million. (Del Preto Decl. ¶ 4.) Thus, the $5,000,000 minimum

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amount in controversy requirement is easily met.

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Groupon sells promotional vouchers, also called “Groupons,” that holders can use to purchase goods or services
at designated stores or service providers, with whom Groupon has contracted to make promotional offers in the
State of Washington. (Declaration of Joseph Del Preto in Support of Notice of Removal of Action by Groupon,
Inc. to the United States District Court for the Western District of Washington Under 28 U.S.C. § 1332 (“Del Preto
Decl.”) ¶ 2.)
NOTICE OF REMOVAL - 5

DLA Piper LLP (US)
701 Fifth Avenue, Suite 7000
Seattle, WA 98104-7044 Tel: [phone]

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IV.

CONCLUSION
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For the reasons stated, federal diversity jurisdiction exists pursuant to the Class

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Action Fairness Act of 2005 and 28 U.S.C. § 1453. Accordingly, this Action is removable to

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this honorable Court.

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17.

Nothing in this Notice of Removal is intended or should be construed as an

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admission of the merits of any of Plaintiffs’ claims or as a waiver by Groupon of any of its

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defenses to the Amended Complaint.

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A copy of this Notice of Removal is being served on Plaintiffs through counsel,

and is being filed with the clerk of the King County Superior Court. See 28 U.S.C. § 1446(d).

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Wherefore, pursuant to 28 U.S.C. §§ 1441, 1446, 1453, and 1332, and Western District

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Local Rule 101, Groupon hereby removes this lawsuit from the Superior Court for the State of

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

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of Washington.

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Dated this 27th day of May, 2011.

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Respectfully submitted,

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s/ Stellman Keehnel
Stellman Keehnel, WSBA No. 9309
Bradley T. Meissner, WSBA No. 39592
DLA PIPER LLP (US)
701 Fifth Avenue, Suite 7000
Seattle, WA 98104
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]

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Attorneys for Defendant
Groupon, Inc.

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NOTICE OF REMOVAL - 6

DLA Piper LLP (US)
701 Fifth Avenue, Suite 7000
Seattle, WA 98104-7044 Tel: [phone]

VERIFICATION

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Pursuant to Western District of Washington Local Rule 101(b), the undersigned counsel

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for Defendant hereby verifies that the pleadings and other documents attached hereto as

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Exhibit A are true and complete copies of the pleadings and documents in the state court

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proceeding.

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I declare under penalty of perjury that the foregoing is true and correct.

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EXECUTED at Seattle, Washington this 27th day of May, 2011.

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s/ Stellman Keehnel
Stellman Keehnel, WSBA No. 9309

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NOTICE OF REMOVAL - 7

DLA Piper LLP (US)
701 Fifth Avenue, Suite 7000
Seattle, WA 98104-7044 Tel: [phone]