Oak Forest Products v. Hiscock & Barclay et. al.

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDAWEST PALM BEACH DIVISION

OAK FOREST PRODUCTS, INC., aFlorida Corporation,

Plaintiff,vs.HISCOCK & BARCLAY, LLP, a NewYork Limited Liability Partnership andTHOMAS R. FITZGERALD,individually,

Defendants .

Case No.:

DEFENDANT mSCOCK & BARCLAY, LLP'S NOTICE OF REMOVAL

Defendant HISCOCK & BARCLAY, LLP, ("H&B"), a New York Limited LiabilityParntership, hereby gives notice pursuant to 28 U.S.C. 1332(a)(1), 1338(a) and 28 U.S .c . 1441 and 1446, that the case entitled Oak Forest Products, Inc. v. Hiscock & Barclay, et ai, CaseNo. 12-46-CA - Metzger, is being removed from the Circuit Court of the Nineteenth JudicialCircuit, in and for Martin County, Florida to the United States District Court for the SouthernDistrict ofFlorida. In support of this Notice, H&B states:

1. On or about January 10, 2012, Plaintiff, OAK FOREST PRODUCTS, INC.("OAK FOREST"), commenced this action against Defendants in the Circuit Court of theNineteenth Judicial Circuit in and for Martin County, Florida under the caption of Oak ForestProducts, Inc. v. Hiscock & Barclay, LLP et al, Case No. 12-46-CA -Metzger. A copy of theSummons and Complaint filed in state court, attached collectively as Exhibit "A," constitute allprocess, pleadings, discovery and orders served by Plaintiff upon H&B in this action to date.

2. PlaintiffOak Forest, is a Florida Corporation. See Complaint, Exhibit A, ~ 3

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3. Defendant H&B is a New York Limited Liability Partnership. H&B does nothave any offices in the State of Florida. See, Complaint, Exhibit A, 'il4

4. Defendant Thomas R. Fitzgerald is a citizen and resident of the State of NewYork. See Complaint, Exhibit A, 'il6.

5. The causes of action In Plaintiffs Complaint are based on claims of legalmalpractice allegedly occurring in connection with the underlying issues raised in an actionwhich was recently dismissed in the United States District Court for the Western District ofNewYork and captioned Oak Forest Products, Inc. v. Home Depot USA, Inc. and King ofFans, Inc.,CaseNo. 08-CV-653l.

6. This Court has original subject matter jurisdiction over this matter pursuant to 28U.S.C. 1332(a)(l) and 1338(a) as the lawsuit involves citizens of different states and theamount in controversy exceeds $75,000.00, exclusive of interest and costs, and it sets forth aclaim for relief requiring resolution of substantive issues of patent and copyright law. Thatamount at issue is based upon Oak Forest's allegations in the Complaint that it seeks damages forcopyright infringement, patent infringement, lost profits, royalties, attorney's fees and costs, andprejudgment interest. Oak Forest seeks such damages for actions which commenced either in2003 or 2008. See Complaint, Exhibit A, 'iI'iI27, 34, 50 and 62. Under the Federal CourtJurisdiction and Venue Clarification Act of 2011, l03, where Plaintiff has not specified anamount of damages, a defendant may state the amount in controversy in its Notice ofRemoval;

8. For purposes of Removal, venue is proper in the United States District Court,Southern District ofFlorida, Miami Division, pursuant to 28 U.S.C. l44l(a) because the case isremoved from the Circuit Court in and for Martin County, Florida.

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9. The Complaint consists of two counts of legal malpractice involving patentlitigation.

10. Defendant Thomas R. Fitzgerald consents to this removal. See, Affidavit of Mr.Fitzgerald, attached hereto as Exhibit B.

11. This action is being removed within thirty (30) days of service of the Complaintupon H&B. See, Summons, attached hereto as part ofExhibit A.

12. A copy of this Notice has been filed contemporaneously with the Clerk of theCircuit Court in and for Martin County, Florida, and has been served on Plaintiff.

WHEREFORE, Defendant, HISCOCK & BARCLAY, LLP respectfully gives Notice ofRemoval of the action, Oak Forest Products, Inc. v. Hiscock & Barclay, et al, Case No. 12-46-CA - Metzger, now pending in the Circuit Court in and for Martin County, Florida, and requeststhat this case proceed in this Court as an action properly removed to it, and that this Court makesuch further orders as are just and equitable.

Dated: March 21, 2012DavidP. HartnettDavid HartnettFlorida Bar No. [email protected] & CULBERTSON LLP9155 S.Dadeland Boulevard- Suite 1600Miami, Florida 33156-2741Telephone: 305-358-7747Facsimile: 305-577-1063

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CERTIFICATE OF SERVICEI hereby certify that on March 21, 2012, I electronically filed the foregoing with the Clerk

of the Court by using the CMlECF system which will send a notice of electronic filing to counsellisted below. A courtesy copy has also been sent via mail and electronic mail as well to counsellisted below.

By:DavidP. HartnettDavid P. Hartnett

Edward R. Curtis, Esquire,Tripp, Scott, P.A.110SE 6th Street, 15th FloorFt. Lauderdale , FL 33156Attorneys for PlaintiffEmail: [email protected]: 954-525-7500Fax: 954-761-8475

Thomas E. Scott, EsquireCole, Scott & Kissane, P.A.9150 S. Dadeland Blvd.Suite 1400Miami, Florida 33156Attorneys for Defendant FitzgeraldEmail: [email protected].: 305-350-5300Fax.: 305-373-2294

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JS44 (Rev. 12/07) CIVIL COVER SHEET44civilcoversheetandthe information contained hereinneitherreplace nor supplement the filing andservice ofpleadings orotherpapers as required bylaw, exceptas provlocal rulesof court. Thisform , approved bythe Judicial Conference oftheUnited Statesin September 1974 is required fortheuse of theClerkofCourtforthepurpose of initiasheet. (SEEINSTRUCTIONS ONTHEREVERSE OFTHEFORM.)

(a) PLAINTIFFSK FOREST PRODUCTS, INC.

(b) CountyofResidenceof FirstListedPlaintiff - Martin(EXCEPTINU.S. PLAINTIFF CASES)

(c) Attorney's (FirmName, Address , andTelephoneNumber)R. Curtis, EsquireScott, P.A.0 SE 6th Street _15 th Floor. Lauderdale, FL 33301one: 954 525-7500

DEFENDANTSHISCOCK & BARCLAY, LLP and THOMAS R. FITZGERALDCountyofResidenceofFirstListedDefendant: NewYork(INU.S. PLAINTIFF CASESONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OFLAND INVOLVED.

Attorneys (If Known)David P.Hartnett, EsquireHinshaw & Culbertson, LLP9155 So. Dadeland Blvd, #1600,Miami, FL 33156Phone: 305358-7747. BASIS OF JURISDICTION (place an "X " inOne Box Only)I u.s. Government

Plaintiff2 U.S. Government

Defendant

1813 Federal Quest ion(U.S. Government Not a Party)

1814 Diver si ty(Indicate Citizenship of Parties in Item II I)

III. CITIZENSHIPOF PRINCIPAL PARTIES (place an "X" in One Box for Plain(ForDiversityCasesOnly) and One Box for Defendant)PTF DEF PTF DEF

Citizen of This State 181 I D I Incorporated orPrincipal Place 0 4 04ofBusiness In This State

Citizen of Another State 02 1812 Incorporatedand Principal Place 05 05of Business In Another State

Citizen or Subject of a 03 03 Foreign Nation 06 06Foreign CountryNATURE OF SUIT (pl ace an "X" in One Box Only)

CONTRACT TORTS FORFEITUREIPENALTV BANKRUPTCY OTHER STATUTESI 10 Insurance PERSONAL INJURY PERSONAL INJURY J 6I0 Agriculture I 422 Appea l 28 USC 158 ",,400 State ReapportionmentI20 Marine 18310 Airplane D 362 Personal Injury- lei 620 OtherFood & Drug 423 Withdrawal ~ 4 1 0 Antitrust130 MillerAct 315 AirplaneProduct Med . Malpractice 625 Drug Related Seizure 28 USC 157 ""430 Banks and Banking140Negotiable Instrument Liability D 365 Personal Injury - of Property 21USC 881 . .450 Commerce150Recovery of Overpayment 0320 Assault, Libel & Product Liability 63 ' Liquor Laws PROPERTY RIGHTS 460 Deportation& Enforcement of Judgment Slander o 368 Asbestos Personal 640 R.R. & Truck 820 Copyrights 470 Racketeer Influenced and51 Medicare Act 0330 Federal Employers' Injury Product 650 Airline Regs . 830 Patent Corrupt Organiza152 Recovery of Defaulted Liability Liability 660 Occupational 840 Trademark roo ConsumerCreditStudent Loans 8340 Marine PERSONAL PROPERTY SafetylHealth 490 Cable/Sat TV(Excl. Veterans) 345 Marine Product 370 Other Fraud o 690 Other 810 Selective Service153Recovery of Overpayment Liability 371 Truth in Lending SOCIAL SECURITY 850Securities/Commodities/of Veteran 's Benefits 8350 Motor Vehicle LABOR Exchange380 Other Personal160 Stockholders' Suits 355 Motor Vehicle Property Damage 0 7 1 0 Fair Labor Standard ss: IDA '''''ff) [875 CustomerChallenge190 Other Contract Product Liability o 385 PropertyDamage Act 862 Black Lung (923) 12 USC 3410195 ContractProduct Liability 0360 Other Personal Injury Product Liability B720 LaborlMgmt. Relations 863 DIWCIDIWW (405(grOtherStatutory Action196 Franchise 730 LaborlMgmt.Reporting 864 ssmTitle XVI 891 Agricultural ActsREAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS & Disclosure Act 865 RSI (405(g 892 EconomicStabilization A740 Railway Labor Act 893 Environmental Matters210 Land Condemnation 0441 Voting D 510 Motionsto Vacate 790 OtherLabor Litigation 894 Energy Allocation Actzz '="00= 8 442 Employment Sentence 791 Empl. Ret. Inc. FEDERALTAX SUITS 895 Freedom of Inform230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus: Security Act o 870 Taxes (U.S. Plaintiff Act240 Torts to Land Accommodations ss General [900Appeal of Fee Determina245 Tort Product Liability 8444 Welfare 535 Death Penalty or Defendant) Under Equal Ac290 All Other Real Property 445 Amer. wlDisabilities - 540 Mandamus& Other IMMIGRATION o 871 IRS-Third Party to JusticeEmployment 550 Civil Rights B62NaturalizationApplication 26 USC 7609 [950 Constitutionality ofo 446 Amer. wlDisabilities- 555 Prison Condition 463 Habeas Corpus- State StatutesOther Alien Detaineeo 440 Other Civil Rights o 465 OtherImmigrationActionsORIGINI OriginalProceeding

(place an "X " inOne Box Only)1812 Removedfrom 0 3 Remanded fromStateCourt Appellate Court o 4 Reinstated orReopened

Transferredfromo 5 anotherdistrict(specify) o 6MultidistrictLitigation Appealto District07 JudgefromMagistrateJud mentCitethe U.S.Civil Statuteunderwhichyouarefiling (Donot cite jurisdictional statutes unlessdiversity):I. CAUSE OF ACTION 28 USC 1332 (a)(l), 1338(a) and 28 U.S.C. 1441 and 1446

LegalMalpractice arisingfromPatentLawII. REQUESTED INCOMPLAINT: CHECKIFTHISISA CLASSACTIONUNDERF.R.C.P.23 DEMANDS CHECKYESonlyif demanded in complaJURY DEMAND: 181Yes 0 No

RELATED CASE(S)IF ANY

USE ONLYCEIPT # _

(See instructions):

AMOUNT - - - - - APPLYING IFP JUDGEDOCKET NUMBER

MAG. JUDGE

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JS 44 Reverse (Rev. 12/07)

INSTRUCTIONS FORATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and serviceofpleading or other papers as required by law, except as provided by local rules of court. This form, approved by the JudicialConference of the United States in September 1974, is required for the use of the Clerkof Court for the purpose of initiating thecivil docket sheet. Consequently, a civil cover sheet is submitted to the Clerkof Court for each civil complaint filed. The attorneyfiling a case should complete the form as follows:I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiffand defendant. If the plaintiff or defendant is agovernment agency, use only the full name or standard abbreviations.If the plaintiffor defendant is an official within a governmentagency, identify first the agency and then the official, giving both name and title.

(b) County of Residence. Foreach civil case filed, except U.S. plaintiff cases, enter the nameof the county where the firstlisted plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendantresides at the time of filing. (NOTE: In land condemnation cases, the countyof residence of the "defendant" is the location of thetract ofland involved.)(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. Ifthere are several attorneys, listthem on an attachment, noting in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown inpleadings. Place an "X" in one of the boxes. Ifthere is more than one basis of jurisdiction, precedence is given in the order shownbelow.United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officersof the United States areincluded here.United States defendant. (2) When the plaintiffis suing the United States, its officers or agencies, place an "X" in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the UnitedStates, 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, theU.S. plaintiffor defendant code takes precedence, and box I or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.c. 1332, where parties are citizensof different states. When Box 4 ischecked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedenceover diversity cases.)III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship wasindicated above. Mark this section for each principal party.IV. Nature of Suit. Place an "X" in the appropriate box. Ifthe nature of suit cannot be determined, be surethe causeof action, inSection VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine thenature of suit. Ifthe cause fits more than one natureof suit, select the most definitive.V. Origin. Place an "X" in one of the seven boxes.Original Proceedings. (I) Cases which originate in the United States district courts.Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C.,Section 1441. When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date ofremand as the filing date.Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as thefiling date.Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for withindistrict transfers or multidistrict litigation transfers.Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authorityof Title 28U.S.C. Section 1407. When this box is checked, do not check (5) above.Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistratejudge's decision.VI. Cause of Action. Report the civil statute directly related to the causeof action and give a briefdescriptionof the cause. Donot cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553BriefDescription: Unauthorized receptionof cable serviceVII . Requested in Complaint . Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.

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Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as apreliminary injunction .Jury Demand. Check the appropriate box to indicate whether or not ajury is being demanded.VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pendingcases, insert the docket numbers and the corresponding judge names for such cases.Date and Attorney Signature. Date and sign the civil cover sheet.

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Oak Forest Products v. Hiscock & Barclay et. al.

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