Lawida V Magento Notice of Renewal

JEFFREY KOHN
OMELVENY & MYERS LLP

Times Square Tower
7 Times Square
New York, NY 10036
Telephone: (212) 326-2000
Facsimile: (212) 326-2061

ADAM KARR (pro hac vice admission pending)
610 Newport Center Drive, 17th Floor
Newport Beach, CA 92660-6429
Telephone: (949) 760-9600
Facsimile: (949) 823-6994

JUSTIN WALKER (pro hac vice admission pending)
2765 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 473-2600
Facsimile: (650) 473-2601
Attorneys for Defendants
Magento, Inc., Varien, Inc., eBay, Inc., and PayPal,
Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Arthur Lawida and Saas Accelerator, LLC,
Plaintiffs,
v.
Magento, Inc., Varien, Inc., eBay, Inc., PayPal,
Inc., John Does 1-10 and ABC Corps 1-10
Defendants.

Case Number:
NOTICE OF REMOVAL

Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 1 of 19 PageID: 218405 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 1 of 19 PageID: 1
2
TO THE CLERK OF THE ABOVE-ENTITLED COURT:
PLEASE TAKE NOTICE THAT, pursuant to 28 U.S.C. 1332 and 1446,
Defendants Magento, Inc. (Magento), PayPal, Inc. (PayPal), and eBay, Inc. (eBay)
(collectively Defendants), hereby remove this civil action from the Superior Court of New
Jersey, Bergen County to the United States District Court for the District of New Jersey.
Removal is proper because this Court has original diversity-of-citizenship jurisdiction under
28 U.S. C. 1332, as the amount in controversy exceeds the sum or value of $75,000 and there is
complete diversity of citizenship between the Plaintiffs and all properly-named defendants.
Complete diversity exists because Defendants are citizens of California and Delaware and
Plaintiffs are citizens of New Jersey. Additionally, although the amount in controversy cannot
be determined at this time, Plaintiffs allegations that they are entitled to one percent of equity
means the value of the dispute exceeds $75,000. This Notice of Removal is timely because it has
been filed within thirty days of the Defendants being served with the summons and complaint.
See 28 U.S.C. 1446(b); Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
This Court, therefore, has original jurisdiction based upon diversity of citizenship. 28 U.S.C.
1332.
DESCRIPTION OF ACTION AND PROCEDURAL BACKGROUND
1. This action was filed, on or about July 29, 2011, in the Superior Court of New
Jersey, Bergen County, and assigned Docket No. L-6576-11. A true and correct copy of the
Summons and Complaint is attached hereto as Exhibit A.
2. This matter is a civil action wherein Plaintiffs Arthur Lawida and Saas
Accelerator, LLC (Plaintiffs) assert the following five causes of action: (i) breach of contract;
(ii) breach of the duties of good faith and fair dealing; (iii) unjust enrichment; (iv) negligent
3
infliction of economic loss; and (v) promissory estoppel.
3. Plaintiffs delivered a copy of the Summons and Complaint in this matter to
Defendants on August 12, 2011, via FedEx delivery. (Declaration of Keren Aminia In Support
of Defendants Notice of Removal (Aminia Decl.) 3.) This does not constitute proper
service under Rule 4:4-3(a) of the New Jersey Court Rules, which requires personal service or
service by registered or certified mail if personal service is not possible after a reasonable good
faith effort to make personal service. Defendants have not yet filed an answer or other
responsive pleading.
4. No other pleadings or orders have been served on Defendants.
Timeliness of Removal
5. Removal of this case is timely pursuant to 28 U.S.C. 1446(b). Defendants filed
this Notice of Removal within thirty days of the Defendants being served with the summons and
complaint.
Jurisdiction: Diversity of Citizenship
6. This Court has original jurisdiction over this action based on diversity of
citizenship. 28 U.S.C. 1332.
7. Here, diversity of citizenship exists between Plaintiffs and Defendants as
follows:
a. Plaintiff Arthur Lawida (Lawida) is a citizen of and domiciled in the
state of New Jersey. (Complaint at 1, 4; Aminia Decl. 4.) For the purposes of diversity
jurisdiction, Lawida is a citizen of New Jersey.
b. Plaintiff SaaS Accelerator, LLC (SaaS) is a limited liability company
organized and existing under the laws of the State of Arizona with Lawida and Meredith Lawida
4
as its sole members. (Aminia Decl. 5.) SaaSs members are either domiciled in New Jersey or
Arizona. Id. For purposes of diversity jurisdiction, SaaS is citizen of New Jersey and/or
Arizona. Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010) ([T]he
citizenship of an LLC is determined by the citizenship of its members.).
c. Magento is a is a wholly-owned subsidiary of eBay incorporated in the
State of Delaware with its headquarters and principal place of business at 10441 Jefferson Blvd,
Suite 200, Culver City, CA 90232. (Complaint at 2; Aminia Decl. 6.) For purposes of
diversity jurisdiction, Magento is a citizen of Delaware and California. Hertz, 130 S. Ct. 1192-
93.
d. Defendant Varien, Inc. refers to a fictitious name for Magento. (Aminia
Decl. 7.)
e. eBay is incorporated in the State of Delaware with its headquarters and
principal place of business at 2145 Hamilton Avenue, San Jose, California 95125. (Complaint at
2; Aminia Decl. 8.) For purposes of diversity jurisdiction, eBay is a citizen of Delaware and
California. Hertz, 130 S. Ct. 1192-93.
f. PayPal is a wholly-owned subsidiary of eBay incorporated in the State of
Delaware with its headquarters and principal place of business at 2145 Hamilton Avenue, San
Jose, California 95125. (Complaint at 2; Aminia Decl. 9.) For purposes of diversity
jurisdiction, PayPal is a citizen of Delaware and California. See Hertz Corp., 130 S. Ct. at 1192-
93.
Jurisdiction: Amount in Controversy
8. In addition to diversity of citizenship, the amount in controversy exceeds the sum
or value of $75,000, exclusive of interest or costs. 28 U.S.C. 1332(a). Plaintiffs have requested
5
damages, together with interest, late fees, costs, attorneys [sic] fees and such other and further
relief as the Court may deem just and proper for each claim asserted in connection with
Plaintiffs allegation that they are entitled to a 1% equity stake in the Company. (Complaint at
5.) The value of one percent of the equity of Magento on March 31, 2010, was greater than
$75,000. (Aminia Decl. 10.) The value of Magento equity has not decreased since March 31,
2010. Id. Thus, the amount in controversy requirement for subject-matter jurisdiction is
satisfied. 28 U.S.C. 1332(a).
Joinder of Co-Defendants in Removal
9. All Defendants have joined in this Notice of Removal.
Venue
10. Filing the notice of removal is proper in this district because the Superior Court of
New Jersey, Bergen County is located within the Federal District of New Jersey. Therefore,
venue for this Notice is proper pursuant to 28 U.S.C. 110 because this is the district and
division embracing the place where such action is pending. 28 U.S.C. 1441(a).
Conclusion
11. This Court has removal jurisdiction over this action under 28 U.S.C. 1332 and
1446 because diversity of citizenship exists and this Notice has been filed within thirty days of
Defendants being served with the summons and complaint and within one year of the original
filing of the action. See 28 U.S.C. 1446(b).
6
12. Written notice of the filing of this Notice of Removal is hereby given to Plaintiffs.
A Notice of filing of this Notice of Removal will be filed with the Clerk of the
Superior Court of New Jersey, Bergen County.
Dated: September 12, 2011

Respectfully submitted:

OMELVENY &MYERS LLP

By: /s/ Jeffrey I. Kohn ________
Jeffrey I. Kohn
Times Square Tower
7 Times Square
New York, NY 10036
Telephone: (212) 326-2000
Facsimile: (212) 326-2061
E-mail: jkohn@omm.com

Adam Karr (pro hac vice admission pending)
610 Newport Center Drive, 17th Floor
Newport Beach, CA 92660-6429
Telephone: (949) 760-9600
Facsimile: (949) 823-6994
E-mail: akarr@omm.com

Justin Walker (pro hac vice admission
pending)
2765 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 473-2600
Facsimile: (650) 473-2601
E-mail: jwalker@omm.com

Attorneys for Defendants
Magento, Inc., Varien, Inc., eBay, Inc., and
PayPal, Inc.


EXHIBIT A
Attorney(s):
Law Firm:
Address:
JOHN CARRINO, ESQ.
CARRINO GALLAGHER, LLC
548 Franklin Avenue
Nutley, New Jersey 07110
Telephone No.: (973) 667-0052
Fax No.: (973) 667-0023
E-mail: jc@carrino.com
Attorney(s) for Plaintiff(s): ARTHUR LAWIDA and SAAS ACCELERATOR
ARTHUR LAWIDA and SAAS ACCELERATOR
Plaintiff(s)
vs.
MAGENTa, INC.
Defendant(s)
From the State of New Jersey
To the Defendant(s) Named Above: MAGENTa, INC.
SUPERIOR COURT OF NEW JERSEY
LAWDIVISION
BERGEN COUNTY
DOCKET NO. L-6576-11
CIVIL ACTION
ummoun
The plaintiff, named above, has filed a lawsuit against you in the Superior Court of New Jersey. The complaint
attached to this summons states the basis for this lawsuit. If you dispute this complaint, you or your attorney must file a
written answer or motion and proof of service with the deputy clerk of the Superior Court in the county listed above within
35 days from the date you received this summons, not counting the date you received it. (The address of each deputy clerk of
the Superior Court is provided.) If the complaint is one in foreclosure, then you must file your written answer or motion and
proof of service with the Clerk of the Superior Court, Hughes Justice Complex, P.O. Box 971, Trenton, NJ 08625-0971. A
filing fee payable to the Treasurer, State of New Jersey, and a completed Case Information Statement (available from the
deputy clerk of the Superior Court) must accompany your answer or motion when it is filed. You must also send a copy of
your answer or motion to plaintiffs attorney whose name and address appear above, or to plaintiff, if no attorney is named
above. Atelephone call will not protect your rights; you must file and serve a written answer or motion (with fee of $
and completed Case Information Statement) if you want the court to hear your defense.
If you do not file and serve a written answer or motion within 35 days, the court may enter a judgment against you
for the relief plaintiff demands, plus interest and costs of suit. If judgment is entered against you, the Sheriff may seize your
money, wages or property to pay all or part of the judgment.
If you cannot afford an attorney, you may call the Legal Services office in the county where you live. A list of these
offices is provided. If you do not have an attorney and are not eligible for free legal assistance, you may obtain a referral to
an attorney by calling one of the Lawyer Referral Services. Alist of these numbers is also provided.
Dated: August 11, 2011
Name of Defendant To Be Served: MAGENTa, INC.
Address of Defendant To Be Served: 10441 Jefferson Blvd.
Suite 200
Culver City, CA 90232
Note: Adopted July 13, 1994, effective September 1, 1994; amended June 28,1996, effective September 1, 1996; address/phone information updated July 1,
1999, effective September 1, 1999; amended July 12, 2002 to be effective September 3, 2002; amended July 27, 2006 to be effective September 1, 2006;
addl'ess/phone information updated October 10, 2006 to be effective immediately; address/phone information updated November 1, 2006 to be effective
immediately; address/phone information updated November 17, 2006 to be effective immediately.
31 - Summons - Law or Chancery Divisions
Superior Court - Appendix XII-A
Rev.11/17/06 P3/07
Powered by
HotDocs'"
Printed by ALL-STATE LEGAL
A Division of ALL-STATE International, Inc.
www.aslegaI.com 800.222.0510 Page 1
ATLANTIC COUNTY:
Deputy Clerk of the Superior Court
Civil Division, Direct Filing
1201 Bacharach Blvd., First FI.
Atlantic City, NJ 08401
LAWYER REFERRAL
(609) 345-3444
LEGAL SERVICES
(609) 348-4200
BERGEN COUNTY:
Case Processing Section, Room 119
Justice Center, 10 Main Street
Hackensack, NJ 07601-0769
LAWYER REFERRAL
(201) 488-0044
LEGAL SERVICES
(201) 487-2166
BURLINGTON COUNTY:
Central Processing Office
Attn: Judicial Intake
Fil'st Floor, Court Facility,
49 Rancocas Road
Mount Holly, NJ 08060
LAWYER REFERRAL
(609) 261-4862
LEGAL SERVICES
(800) 496-4570
CAMDEN COUNTY:
Deputy Clel'k of the Superior COUl't
Civil Pl'ocessing Office
First Flool', Hall of Recol'ds
101 South Fifth Stl'eet
Camden, NJ 08103
LAWYER REFERRAL
(856) 964-4520
LEGAL SERVICES
(856) 964-2010
CAPE MAY COUNTY:
Deputy Clerk of the Supel'iol' COUl't
9 North Main Street, Box DN-209
Cape May Court House, NJ 08210
LAWYER REFERRAL
(609) 463-0313
LEGAL SERVICES
(609) 465-3001
CUMBERLAND COUNTY:
Civil Case Management Office
Bl'oad & Fayette Streets, P.O. Box 615
Bridgeton, NJ 08302
LAWYER REFERRAL
(856) 692-6207
LEGAL SERVICES
(856) 451-0003
ESSEX COUNTY:
50 West Market Street, Room 131
Newark, N.J 07102
LAWYER REFERRAL
(78) 622-6207
LEGAL SERVICES
(973) 624-4500
31 - Summons - Law or Chancery Divisions
Superior Court - Appendix XII-A
Rev.11/17/06 P3/07
GLOUCESTER COUNTY:
Civil Case Management Office
Attn: Intake
First Floor, Court House
1 North Broad Street, P.O. Box 750
Woodbury, NJ 08096
LAWYER REFERRAL
(856) 848-4589
LEGAL SERVICES
(856) 848-5360
HUDSON COUNTY:
Civil Recol'ds Dept.
Brennan Courthouse, First Floor
583 Newark Avenue
Jersey City, NJ 07306
LAWYER REFERRAL
(201) 798-2727
LEGAL SERVICES
(201) 792-6363
HUNTERDON COUNTY:
Civil Division
65 Park Avenue
Flemington, NJ 08822
LAWYER REFERRAL
(908) 263-6109
LEGAL SERVICES
(908) 782-7979
MERCER COUNTY:
Local Filing Office, Courthouse
175 South Broad St., P.O. Box 8068
Trenton, NJ 08650
LAWYER REFERRAL
(609) 585-6200
LEGAL SERVICES
(609) 695-6249
MIDDLESEX COUNTY:
Deputy Clel'k of the Superior Court
Administration Building, 3
ed
Floor
1 Kennedy Square, P.O. Box 2633
New Brunswick, NJ 08903-2633
LAWYER REFERRAL
(732) 828-0053
LEGAL SERVICES
(732) 249-7600
MONMOUTH COUNTY:
Monmouth County Courthouse
71 Monument Park, P.O. Box 1269
Freehold, NJ 07728-1269
LAWYER REFERRAL
(732) 431-5544
LEGAL SERVICES
(732) 866-0020
MORRIS COUNTY:
Civil Division
30 Schuyler Place, P.O. Box 910
Morristown, NJ 07960-0910
LAWYER REFERRAL
(973) 267-5882
LEGAL SERVICES
(973) 285-6911
Powered by
HotDocs("
OCEAN COUNTY:
Court House, Room 119
118 Washington Street
Toms River, NJ 08754
LAWYER REFERRAL
(732) 240-3666
LEGAL SERVICES
(732) 341-2727
PASSAIC COUNTY:
Civil Division
Passaic County Court House
77 Hamilton Street
Paterson, NJ 07505
LAWYER REFERRAL
(973) 278-9223
LEGAL SERVICES
(973) 523-2900
SALEM COUNTY:
92 Market Street, P.O. Box 18
Salem, NJ 08079
LAWYER REFERRAL
(856) 678-8363
LEGAL SERVICES
(856) 451-0003
SOMERSET COUNTY:
Deputy Clerk of the Supel'ior Court
Civil Division Office
New Court House, 3''<1 Floor
P.O. Box 3000
Somerville, NJ 08876
LAWYER REFERRAL
(908) 685-2323
LEGAL SERVICES
(908) 231-0840
SUSSEX COUNTY:
Sussex County Judicial Center
43-47 High Street
Newton, NJ 07860
LAWYER REFERRAL
(973) 267-5882
LEGAL SERVICES
(973) 383-7400
UNION COUNTY:
Court House, First Floor
2 Broad Street
Elizabeth, NJ 07207-6073
LAWYER REFERRAL
(908) 353-4715
LEGAL SERVICES
(908) 354-4340
WARREN COUNTY:
Civil Division Office
Warren County Courthouse
413 Second Street
Belvidere, N.J 07823-1500
LAWYER REFERRAL
(908) 387-1835
LEGAL SERVICES
(908) 475-2010
Printed by ALL-STATE LEGAL
A Division of ALL-STATE International, Inc.
www.aslegal.com 800.222.0510 Page 2
548 Franklin Avenue
Nutley, New Jersey 07110
P: 973-667-0052 F: 973-667-0023
Attorneys for Plaintiff
Arthur Lawida and
SaaS Accelerator, LLC
Plaintiffs,
v.
Magento, Inc., Varien, Inc.,
Ebay, Inc., and Paypal, Inc.
John Does 1-10 and ABC Corps 1-
10 (fictious names used to
represent one or more unknown
Defendant(s
Defendants.
i
SUPERIOR COURT OF NEW JERSEY
LAW COUNTY
DOCKET NO.: I&--{ {
CIVIL ACTION
COMPLAINT and Jury Demand
Plaintiffs, Arthur Lawida and SaaS Accelerator, LLC by way
of Complaint against Defendant, hereby says:
1. Plaintiff's place of business is located at 63 John
Street, Ridgewood, New Jersey 07450.
2. Defendant's place of business is located at 10441
Jefferson Blvd., Culver City, CA, 2211 North First Street, San
Jose, California, and 2065 Hamilton Avenue, San Jose,
California.
-1-
COUNT I - BREACH OF CONTRACT
3. At all time relevant hereto, plaintiff was in a
business relationship with defendant.
4. Plaintiff, was provided a contract to perform work to
lead the effort, manage and transform Magento's software into a
SaaS Application and lead the efforts to transform Magento's
business to support the operation of Magento as a Saas platform.
Defendant executed a contract with Plaintiff and gave him the
title of General Manager of Magento SaaS. These services were
provided for Defendant between March 2010 to November 2010. All
services were performed, used and accepted by Defendant to
assist in their efforts to sell the company and the Defendant
owes Plaintiff pursuant to their contract and mutual
understanding of services. Prior to the work of Plaintiff,
defendant had no experience building or operating either Saas
software or a SaaS business. Defendant leveraged Plaintiff's
expertise and reputation to build the software and business
operations and fraudulently represented that Plaintiff was an
employee of Magento in order to create the business without
proper compensation to the Plaintiff. The existence and
operation of this SaaS business is a key factor in Defendant's
ability to sell their business and the work product of the
-2-
Plaintiff is a key factor in Plaintiff's ability to sell Magento
to eBay and Paypal. Executives of Paypal were aware of this
situation yet actively supported the Defendant's course of
action.
To perform the duties, Plaintiff was forced to travel from
his residence and place of business in New Jersey to the offices
of Defendant on a frequent basis. Plaintiff was unable to
pursue or perform
during this time.
any other business for any other company
Plaintiff made it abundantly clear that the
options promised by Defendant were a key factor in Plaintiff's
continuing commitment to provide these services and Defendants
continued to promise that these options would be awarded.
5. On or about March 31, 2011 Defendant told Plaintiff
that in addition to his compensation, Plaintiff will be provided
with options representing a 1% equity stake in the Company.
Plaintiff has attempted numerous times to exercise this option
and get resolve to this matter but the Plaintiff wasn't
successful in communications with Defendant. Over the next
several months, Defendant repeatedly told Plaintiff that these
options would be awarded.
6. On or about November 2010 after repeated attempts to
resolve this matter, Defendant took the work product of
-3-
Plaintiff and drove it's Company's value by executing on the
Plaintiff's SaaS business model. Defendant agreed to this
compensation arrangement to Plaintiff and his action was an
attempt to circumvent payment of this obligation.
7. Numerous requests have been proposed to Defendant by the
Plaintiff and the Defendant has not made any effort or good
faith intent to pay the debt owed to Plaintiff for services
performed and benefited by Defendant. Defendant has not been
willing to provide payment to the Plaintiff.
WHEREFORE, plaintiff respectfully demands judgment in its
favor and against the defendant on the First Count of its
Complaint with damages, together with interest, late fees,
costs, attorney's fees and such other and further relief as the
court may deem just and proper.
COUNT II - Breach of the Duties of Good Faith and Fair Dealing
8. Plaintiff repeats the foregoing allegations and makes
the same apart hereof as if repeated at length.
-4-
9. The defendant owed the plaintiff a duty of good faith
and fair dealing in connection with their responsibilities and
obligations under its contract with the plaintiff.
10. Defendants breached their duty of good faith and fair
dealing by refusing to make payment upon numerous demands and
then utilizing and benefiting from services performed for the
Magento business by the plaintiff. Defendant concluded a sale of
the business which Plaintiff's work product was instrumental in
that sale.
11. As a result of the defendant's conduct, plaintiff has
suffered damages.
favor and against the defendant on the Second Count of its
Complaint for damages, together with interest, late fees, costs,
attorney's fees and such other and further relief as the Court
may deem just and proper.
COUNT III - UNJUST ENRICHMENT
the same a part hereof as if repeated at length.
-5-
13. As a result of defendant's failure to remit payment to
plaintiff after performance of services tendered, defendant has
and continues to be unjustly enriched by Plaintiff's full
performance to the detriment of plaintiff.
favor and against the defendant on the Third Count of its
COUNT IV - NEGLIGENT INFLICTION OF ECONOMIC LOSS
15. Defendant knew or should have known that Plaintiff
would suffer economic harm as a result of their non-payment of
monies due and owed.
16. Defendant is liable for economic damages proximately
caused by failing to take reasonable measures to avoid the risk
-6-
of causing economic damages to Plaintiff.
favor and against the defendant on the Fourth Count of its
COUNT V - PROMISSORY ESTOPPEL
18. Plaintiff performed services for defendant at the
request of Defendant. Said services were performed and
defendant benefited from those services.
19. Defendants knew or should have known that those
services were not gratuitous.
favor and against the defendant on the Fifth Count of its
-7-
-8-
DESIGNATION OF TRIAL COUNSEL
Pursuant to Rule 4:25-4, John Carrino, Esq. ~ s hereby
designated as trial counsel in the above matter.
Dated: July 15, 2011
-9-
CERTIFICATION PURSUANT TO RULE 4:5-1
I certify, pursuant to Rule 4:5-1, that the matter in
controversy is not the subject of any other action or
arbitration proceeding, now or contemplated, and that no other
parties should be joined in this action at this time.
Dated: July 15, 2011
-10-

Lawida V Magento Notice of Renewal

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Lawida V Magento Notice of Renewal

Transféré par

Droits d'auteur :

Formats disponibles

JEFFREY KOHN

OMELVENY & MYERS LLP

Vous aimerez peut-être aussi