DEFENDANTS’ NOTICE OF REMOVAL OF CIVIL ACTION UNDER …€¦ · 9. Defendants will serve written...

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DEFENDANTS’ NOTICE OF REMOVAL OF CIVIL ACTION

Dale A. Hudson (State Bar No. 81948) [email protected] NIXON PEABODY LLP 300 S. Grand Avenue, Suite 4100 Los Angeles, CA 90071 Telephone: 213.629.6000 Facsimile: 213.629.6001

Attorneys for Defendants PALM BAY INTERNATIONAL, INC. and SMT ACQUISITIONS, LLC doing business as ESPRIT DU VIN, erroneously sued asESPIRIT DU VIN, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

WESTSIDE WINERY, INC.,

Plaintiff,

v.

PALM BAY INTERNATIONAL, INC.; ESPIRIT DU VIN, LLC; DOES 1 through 100, inclusive,

Defendants.

Case No.:

DEFENDANTS’ NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332(a), 1441(b), AND 1446

TO THE CLERK OF THE ABOVE-ENTITLED COURT AND TO PLAINTIFF

WESTSIDE WINERY, INC. AND ITS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that defendants Palm Bay International, Inc. (“Palm Bay”) and

SMT Acquisitions, LLC, doing business as Esprit Du Vin, erroneously sued as Espirit Du Vin,

LLC (“SMT Acquisitions”) (jointly “Defendants”) file this Notice of Removal. The above-entitled

case is a civil action over which this Court has original jurisdiction pursuant to 28 U.S.C. §

1332(a) and is one that may be properly removed to this Court pursuant to 28 U.S.C. § 1441(b).

In compliance with 28 U.S.C. § 1446(a), Defendants assert the following grounds for removal:

Case 1:18-cv-07075-GBD Document 1 Filed 05/10/18 of 58

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1. On or about April 6, 2018, Plaintiff Westside Winery, Inc. (“Plaintiff”) commenced

the aforementioned action against Defendants by filing a Complaint in the Superior Court of the

State of California, County of Sonoma, entitled Westside Winery, Inc. v. Palm Bay International,

Inc., et al., Case No. SCV 262275 (hereinafter the “State Court Action”).

2. True and correct copies of Plaintiff’s Summons and Complaint, and associated

paperwork, are attached hereto as Exhibit A.

3. On or about April 24, 2018, Plaintiff filed a Notice of Errata Regarding

Inadvertently Omitted Exhibits from the Complaint, and attached the omitted exhibits to its Notice

of Errata. True and correct copies of Plaintiff’s Notice of Errata and accompanying exhibits, are

attached hereto as Exhibit B.

4. Defendant Palm Bay International, Inc. (“Palm Bay”) initially received the

Summons and Complaint on April 11, 2018, the date on which it was served on Palm Bay’s agent

for service of process. Defendant Palm Bay did not receive the papers before that date. See

Declaration of Gabriel A. Bisio (“Bisio Decl.”), ¶ 5, filed concurrently herewith. Thereafter Palm

Bay received Plaintiff’s Notice of Errata and accompanying exhibits.

5. Plaintiff’s Complaint identifies the entity “Espirit du Vin, LLC” as a defendant in

this action.1 However, SMT Acquisitions, LLC, doing business as “Esprit du Vin” is the real

party defendant in interest with respect to the allegations in Plaintiff’s Complaint. (Bisio Decl., ¶

8.) As the “real party defendant in interest,” SMT Acquisitions has the authority to remove this

action to federal court. See Gebran v. Wells Fargo Bank, N.A., No. CV1607616, 2016 WL

7471292, at *3 (C.D. Cal. 2016). In La Russo v. St. George's Univ. Sch. of Med., 747 F.3d 90, 96

(2d Cir. 2014), the court addressed a scenario similar to the one at bar. The removing party was

SGU Ltd., which did business as St. George’s University School of Medicine. The plaintiff sued

St. George’s University School of Medicine in state court, but there was no such entity. The court

1 The Complaint alleges that Espirit du Vin, LLC is a New York limited liability company, and a wholly owned subsidiary of Palm Bay. Complaint, Ex. A, ¶ 3. However, these allegations are not correct. Bisio Decl., ¶¶ 8-10. If the allegations were true, there would be complete diversity, and Defendants would be entitled to remove this action to federal court.


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held that SGU Ltd. (doing business as St. George’s University School of Medicine) was the real

party in interest, as it was “the owner and operator of the non-juridical entity that [plaintiff}

attempted to sue.” The court held that SGU Ltd. was entitled to remove the case to federal court,

even though it had not entered an appearance in state court and it had not been served.

6. SMT Acquisitions has never been served with the Complaint. SMT Acquisitions

did not receive a copy of the Complaint, or any paperwork relating to the State Court Action, prior

to April 11, 2018.

7. Defendants have neither filed nor received any papers or pleadings in the State

Court Action other than those attached hereto as Exhibit A and B. Exhibits A and B constitute all

of the state court pleadings, process, and orders to date.

8. The filing of this Notice of Removal is timely as it has been filed within thirty (30)

days after service of the Summons and Complaint as required by 28 U.S.C. § 1446(b) and Federal

Rule of Civil Procedure 6.

9. Defendants will serve written notice of the filing of this Notice of Removal to

Plaintiff as required by 28 U.S.C. § 1446(d) and will file a Notice of Removal with the clerk of the

Superior Court of the State of California in and for the County of Sonoma, as further required by

that statute.

Removal Based on Diversity of Citizenship

10. This Court has original jurisdiction over this action under 28 U.S.C. § 1332(a)(1),

and it may be removed to this Court pursuant to 28 U.S.C. § 1441(b). Specifically, and as

explained more fully below, this action involves citizens of different states and complete diversity.

As also explained more fully below, the amount in controversy exceeds the sum of $75,000,

exclusive of interest and costs.

11. Defendants are informed and believe, based upon the allegations in Plaintiff’s

Complaint and its records and knowledge, and allege that Plaintiff was, and still is, a citizen of the

State of California.


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12. Defendant Palm Bay is, and was at the time this lawsuit was filed, a New York

corporation (its state of incorporation) with its corporate headquarters (i.e., its principal place of

business) in the State of New York. (Bisio Decl., ¶¶ 6-7.) Palm Bay was not and is not a citizen

of the State of California. Plaintiff was not and is not a citizen of New York. Thus, Plaintiff is a

“citizen of a State different from” Palm Bay under 28 U.S.C. § 1332(a); see also Hertz Corp. v.

Friend, 130 S. Ct. 1181 (2010).

13. SMT Acquisitions is, and was at the time this lawsuit was filed, a New York

Limited Liability Company (LLC) doing business as Esprit du Vin. (Bisio Decl., ¶¶ 8-9.) For the

purposes of diversity jurisdiction, the citizenship of an LLC is determined by the citizenship of

each of its members. See Carden v. Arkoma Associ., 494 U.S. 185, 195–96 (1990). SMT

Acquisitions is solely owned by SMT Holdings, LLC, an LLC organized under the laws of New

York. (Bisio Decl., ¶¶ 10-11.) Mark D. Taub is the sole member of SMT Holdings, LLC; Mark

D. Taub is a citizen of New York, New York. (Bisio Decl., ¶¶ 12-13.)

14. SMT Acquisitions was not and is not a citizen of the State of California. Plaintiff

was not and is not a citizen of the State of New York. Thus, Plaintiff is a “citizen of a State

different from” SMT Acquisitions under 28 U.S.C. § 1332(a); see also Hertz Corp. v. Friend, 130

S. Ct. 1181 (2010).

15. The defendants designated as Does 1 through 100 are fictitious defendants. Thus,

they are not parties to this action. Unnamed defendants, such as Doe defendants, are not required

to join in a removal petition. The Court disregards their citizenship for purposes of determining

diversity. 28 U.S.C. § 1441(a); Fristoe v. Reynolds Metal Co., 615 F.2d 1209, 1213 (9th Cir.

1980); Newcombe v. Adolf Coors Co., 157 F.3d 686, 690–91 (9th Cir. 1998).

Amount in Controversy

16. Removal jurisdiction exists where original jurisdiction would also have existed, and

the removing defendant bears the burden of establishing jurisdiction. 28 U.S.C. § 1441(a); Gaus

v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). If a complaint on its face alleges that the amount

in controversy exceeds the minimum required to invoke diversity jurisdiction ($75,000), and all of


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the other requirements for diversity jurisdiction are met, the action is removable. 28 U.S.C. §

1332; Adkins v. J.B. Hunt Transp., Inc., No. CV 2:18-28, 2018 WL 1392893, at *2 (E.D. Cal. Mar.

20, 2018); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).

17. Plaintiff’s Complaint on its face seeks to recover, at a minimum, an amount of

damages based on an alleged breach of an agreement, which Plaintiff alleges, totals

$1,545,063.62. Ex. A, ¶ 23. In addition to this amount, which already exceeds the minimum

threshold required by statute, Plaintiff is seeking consequential and other damages in amounts to

be proven at trial. Id., ¶¶ 25, 30, 37, 41, 44.

18. Defendants deny that Plaintiff is entitled to any recovery in this action, and by

filing this Notice of Removal, Defendants do not waive any defenses or claims that may otherwise

be available to them. Without waiving this position, and in light of the allegations of Plaintiff’s

Complaint, the amount in dispute in this matter exceeds $75,000, exclusive of interest and costs.

19. Defendant has therefore demonstrated that this Court has original jurisdiction

pursuant to 28 U.S.C. § 1332(a)(1), and which may be removed by Defendant to this Court

pursuant to 28 U.S.C. § 1441(a). It is a civil action in which the amount in controversy exceeds the

sum of $75,000, exclusive of interest and costs. It also is between citizens of different states.

Venue

20. Venue lies in the United States District Court for the Northern District of California,

pursuant to 28 U.S.C. §§ 84(c)(3) and 1441(a) because this Court’s territorial jurisdiction includes

Sonoma County, California, where the State Court Action was filed and is pending.

21. Defendant will give prompt notice of the filing of this Notice of Removal to Plaintiff

and to the Clerk of the Superior Court of the State of California in the County of Sonoma. The

Notice of Removal is concurrently being served on all parties.

/ / /

/ / /

/ / /

/ / /


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For all of the foregoing reasons, Defendants Palm Bay and SMT Acquisitions respectfully

submit that the State Court Action is removable to this Court under 28 U.S.C. §§ 1332(a) and

1441(b).

Dated: May 10, 2018 NIXON PEABODY LLP

By: /s/ Dale A. Hudson _Dale A. Hudson Attorney for Defendants PALM BAY INTERNATIONAL, INC. and SMT ACQUISITIONS, LLC d/b/a ESPRIT DU VIN erroneously sued as ESPIRIT DU VIN, LLC


EXHIBIT A


EXHIBIT B


4851-0536-2789.5

DECLARATION IN SUPPORT OF REMOVAL OF CIVIL ACTION

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Attorneys for Defendants PALM BAY INTERNATIONAL, INC. and SMT ACQUISITIONS, LLC doing business as ESPRIT DU VIN, erroneously sued asESPIRIT DU VIN, LLC




Plaintiff,

v.

PALM BAY INTERNATIONAL, INC.; ESPIRIT DU VIN, LLC; DOES 1 through 100, inclusive,

Defendants.

Case No.

DECLARATION OF GABRIEL A. BISIO IN SUPPORT OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332(a), 1441(b) AND 1446

I, Gabriel A. Bisio, hereby declare and state as follows:

1. I am over the age of eighteen and am otherwise competent to make this declaration.

I make this declaration in support of Defendants’ Notice of Removal of the case styled Westside

Winery, Inc. v. Palm Bay International, Inc.; Espirit Du Vin, LLC; Does 1 through 100, inclusive,

in the Superior Court of the State of California for the County of Sonoma, under Docket No. SCV-

262275 (the “State Court Action”). The facts set forth below are within my personal knowledge

and, if called to testify to these facts, I could and would do so competently.

2. Upon information and belief, Plaintiff Westside Winery, Inc. (“Plaintiff”) filed its

Complaint for Damages (“Complaint”) in the State Court Action on or about April 6, 2018.

3. Plaintiff’s Complaint identified Palm Bay International, Inc. (“Palm Bay”) as a

Case 1:18-cv-07075-GBD Document 1-1 Filed 05/10/18 Page 1 of 6

4851-0536-2789.5

-2- DECLARATION IN SUPPORT OF REMOVAL OF CIVIL ACTION

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defendant in the State Court Action.

4. I am currently the General Counsel of defendant Palm Bay and I am familiar with

its organizational documents and those of additional related entities, including SMT Acquisitions,

LLC (“SMT Acquisitions”).

5. Plaintiff’s Complaint and Summons in the State Court Action were served on

defendant Palm Bay on April 11, 2018.

6. Defendant Palm Bay is, and at the time of the filing of the State Court Action was,

a corporation organized and existing under the laws of the State of New York, with its principal

place of business in New York.

7. New York is the main office location from where Palm Bay directs, controls, and

coordinates business activities. The New York office is where all high-level business decisions are

made, as well as where the day-to-day activities are managed. The books and records relating to

business matters which are directed, controlled, and coordinated are stored and maintained in New

York, Palm Bay’s corporate headquarters.

8. Plaintiff’s Complaint also identified an entity known as “Espirit du Vin, LLC” as a

defendant. I am not aware of any such entity. However, SMT Acquisitions, LLC, doing business

as “Esprit du Vin” is, upon information and belief, the real party defendant in interest with respect

to the allegations in Plaintiff’s Complaint. Attached hereto as Exhibit A are Applications for

Registration of Fictitious Names which SMT Acquisitions, LLC filed with the Florida Division of

Corporation with respect to “Esprit du Vin.”

9. SMT Acquisitions has at all times relevant to this case been a limited liability

company, organized as such under the laws of the State of New York.

10. SMT Holdings is the sole member of SMT Acquisitions.

11. SMT Holdings, LLC (“SMT Holdings”) has at all times relevant to this case been a

limited liability company, organized as such under the laws of the State of New York.

12. Marc D. Taub, the President & CEO of Palm Bay, is the sole member of SMT

Holdings.

13. Marc D. Taub lives and resides at 13- East 67th street, Apt. 8/9E, New York, New


EXHIBIT A


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VI. CAUSE OF ACTION!

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VII. REQUESTED IN COMPLAINT:!

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VIII. RELATED CASE(S), IF ANY (See instructions):

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IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)!

(Place an “X” in One Box Only) SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE !

DATE SIGNATURE OF ATTORNEY OF RECORD

Westside Winery, Inc. Palm Bay International, Inc., Espirit Du Vin LLCSonoma County

Simoncini & Associates1694 The Alameda,San Jose, CA 95126-2219(408) 280-7711

Nixon Peabody LLP300 S. Grand Avenue, Suite 4100, Los Angeles, CA 90071(213) 629-6000

29 U.S.C. sections 1332(a)(1) and 1441 (b)

Plaintiff is suing defendants for alleged breach of agreement to purchase a guaranteed minimum amount of wine.

1,545,063.62

05/10/2018 Dale A. Hudson


JS-CAND 44 (rev. 07/16)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-CAND 44

Authority For Civil Cover Sheet. The JS-CAND 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I. a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)

c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment).”

II. Jurisdiction. The basis of jurisdiction is set forth under Federal Rule of Civil Procedure 8(a), which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

(1) United States plaintiff. Jurisdiction based on 28 USC §§ 1345 and 1348. Suits by agencies and officers of the United States are included here.

(2) United States defendant. When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.

(3) Federal question. This refers to suits under 28 USC § 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.

(4) Diversity of citizenship. This refers to suits under 28 USC § 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS-CAND 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an “X” in one of the six boxes.

(1) Original Proceedings. Cases originating in the United States district courts.

(2) Removed from State Court. Proceedings initiated in state courts may be removed to the district courts under Title 28 USC § 1441. When the petition for removal is granted, check this box.

(3) Remanded from Appellate Court. Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

(4) Reinstated or Reopened. Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

(5) Transferred from Another District. For cases transferred under Title 28 USC § 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.

(6) Multidistrict Litigation Transfer. Check this box when a multidistrict case is transferred into the district under authority of Title 28 USC § 1407. When this box is checked, do not check (5) above.

(8) Multidistrict Litigation Direct File. Check this box when a multidistrict litigation case is filed in the same district as the Master MDL docket.

Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC § 553. Brief Description: Unauthorized reception of cable service.

VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Federal Rule of Civil Procedure 23.

Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS-CAND 44 is used to identify related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

IX. Divisional Assignment. If the Nature of Suit is under Property Rights or Prisoner Petitions or the matter is a Securities Class Action, leave this section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: “the county in which a substantial part of the events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated.”

Date and Attorney Signature. Date and sign the civil cover sheet.


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Attorneys for Defendants PALM BAY INTERNATIONAL, INC. and SMT ACQUISITIONS, LLC doing business as ESPRIT DU YIN, erroneously sued as ESPIRIT DU YIN, LLC




Plaintiff,

PALM BAY INTERNATIONAL, INC.; ESPIRIT DU YIN, LLC; DOES 1 through 100, inclusive,

Case No.;

CERTIFICATE OF SERVICE

Defendants.

I, the undersigned, certify that I am employed in the City and County of San Francisco, California; that I am over the age of eighteen years and not a party to the within action; and that my business address is One Embarcadero Center, 18th Floor, San Francisco, California 94111. On this date, I served the following document(s):

1) DEFENDANTS' NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332(A), 1441(B), AND 1446 WITH EXHIBITS A AND B

2) DECLARATION OF GABRIEL A. BISIO IN SUPPORT OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332(A), 1441(B) AND 1446 WITH EXHIBIT A

3) DEFENDANTS' NOTICE OF INTERESTED PARTIES

4) CIVIL COVER SHEET

on the parties stated below, through their attorneys of record, by placing true copies thereof in

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DEFENDANTS' NOTICE OF REMOVAL OF CIVIL ACTION 4825-4113-5973 1


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sealed envelopes addressed as shown below by the following means of service:

X : By First-Class Mail — I am readily familiar with the firm's practice for collection and processing of correspondence for mailing. Under that practice, the correspondence is deposited with the United States Postal Service on the same day as collected, with first-class postage thereon fully prepaid, in San Francisco, California, for mailing to the office of the addressee following ordinary business practices.

By Personal Service — I caused each such envelope to be given to a courier messenger to personally deliver to the office of the addressee.

: By Overnight Courier/Express Mail — I caused each such envelope to be given to an overnight mail service at San Francisco, California, to be hand delivered to the office of the addres; on the next business day.

: By Electronic Mail/E-Filing — I caused each such document(s) to be served electronically on the person(s) listed below via their electronic email address listed.

Addresseefs)

Kenneth D. Simoncini, Esq. Attorneys for Plaintiff Kerri A. Johnson, Esq. WESTSIDE WINERY, INC. SIMONCINI & ASSOCIATES 1694 The Alameda San Jose, CA 95126 Telephone (408) 280-7711 Facsimile: (408)280-1330

I declare under penalty of perjury that the foregoing is true and correct. Executed on May 10, 2018 in San Francisco, California.

Iris Leal

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DEFENDANTS' NOTICE OF REMOVAL OF CIVIL ACTION 4825-4113-5973 I


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