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Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`FT. LAUDERDALE DIVISION
`
`
`
`
`
`ASTORRIA SASSANO,
`
`
`Plaintiff,
`
`vs.
`
`PETSMART, INC., a Foreign For-Profit
`Corporation
`
`Defendant.
`________________________________
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446, Defendant PetSmart, Inc.
`
`CASE NO.: ____________________
`
`
`NOTICE OF REMOVAL
`
`(“PetSmart”) hereby gives notice of removal of the above-entitled action, and all claims and causes
`
`of action therein, currently pending in the Circuit Court of the Seventeenth Judicial Circuit in and
`
`for Broward County, Florida (the “State Court Action”). Defendant PetSmart appears for the
`
`purposes of removal only, reserves all defenses and rights available to it, and as grounds for
`
`removal states as follows:
`
`NOTICE OF REMOVAL
`
`1.
`
`Plaintiff filed the above-entitled action on April 22, 2020 against PetSmart in the
`
`Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida. Plaintiff
`
`served PetSmart’s registered agent with a copy of the Complaint via process server on May 1,
`
`2020. A copy of the receipt of service of process from PetSmart’s registered agent is attached
`
`hereto as Exhibit A.
`
`2.
`
`Service of Process on May 1, 2020 constituted PetSmart’s first receipt of a copy
`
`of the initial pleading setting forth the claim for relief upon which such action or proceeding is
`
`based. This Notice of Removal is being filed within 30 days of the same, and is therefore timely
`
`under 28 U.S.C. § 1446(b)(1).
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`
`
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`

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`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 2 of 12
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`
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`3.
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`Pursuant to 28 U.S.C. § 1446(d), PetSmart will file a copy of this Notice of
`
`Removal with the Clerk of the Circuit Court of the Seventeenth Judicial Circuit in and for Broward
`
`County, Florida, and will serve a copy of this Notice of Removal on Plaintiff to properly effect
`
`removal of this action to this Court.
`
`4.
`
`A true and correct copy of the Complaint is attached hereto as Exhibit B. Pursuant
`
`to 28 U.S.C. § 1446(a), a true and correct copy of all other process, pleadings, and orders served
`
`upon PetSmart in the State Court Action is attached hereto as Exhibit C. A copy of the docket in
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`the State Court Action is attached as Exhibit D. No substantive motions have been filed in the State
`
`Court Action.
`
`5.
`
`In submitting this Notice of Removal, PetSmart reserves all rights and defenses,
`
`including as to venue, personal jurisdiction, the legal sufficiency of the claims alleged in Plaintiff’s
`
`complaint, and all other objections and defenses.
`
`FEDERAL QUESTION JURISDICTION OF THIS COURT
`
`6.
`
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
`
`1331 and 1441(a) because this action necessarily raises substantial and disputed federal issues. See
`
`Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005). Suits alleging
`
`only state-law causes of action nevertheless “arise under” federal law if the “state-law claim[s]
`
`necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum
`
`may entertain without disturbing any congressionally approved balance of federal and state judicial
`
`responsibilities.” Grable, 545 U.S. at 314. Applying this test “calls for a ‘common-sense
`
`accommodation of judgment to the kaleidoscopic situations’ that present a federal issue.” Id. at
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`313.
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`
`
`
`2
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`

`

`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 3 of 12
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`
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`7.
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`The Eleventh Circuit has explained that “’[t]he substantiality inquiry under Grable
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`looks to the importance of the issue to the federal system as a whole,’ and the Supreme Court has
`
`identified three factors to assist in this inquiry. First, a pure question of law is more likely to be a
`
`substantial federal question. Second, a question that will control many other cases is more likely
`
`to be a substantial federal question. Third, a question that the government has a strong interest in
`
`litigating in a federal forum is more likely to be a substantial federal question.” MDS (Can.), Inc.
`
`v. RAD Source Techs., Inc., 720 F.3d 833, 842 (11th Cir. 2013).
`
`8.
`
`This District has likewise followed the test set out by the Supreme Court in Grable,
`
`and also underscored that “[i]n making this determination, ‘the removing court looks to the
`
`substance of the complaint, not the labels used in it.’” Edwards v. Deloitte & Touche, LLP, No.
`
`16-21221-Civ-Scola, 2017 U.S. Dist. LEXIS 221984, at *10 (S.D. Fla. Jan. 18, 2017) (finding
`
`federal question jurisdiction over exclusively state law causes of action). This District has also
`
`made clear that, “even if it appears from the complaint that only state-law causes of action are
`
`actually pleaded, a federal question will be inferred where ‘the vindication of a right under state
`
`law necessarily turns on some construction of federal law.’” MSPA Claims 1, LLC v. Allstate Prop.
`
`& Cas. Ins. Co., No. 16-20443-Civ-Scola, 2016 U.S. Dist. LEXIS 92958, at *5-6 (S.D. Fla. June
`
`29, 2016); see also Korman v. IRS, No. 06-81294-Civ-Marra, 2007 U.S. Dist. LEXIS 91046, at
`
`*10 (S.D. Fla. Feb. 20, 2007) (“That Plaintiff chose to cast his challenge to the propriety of the
`
`federal tax lien in state law terms is of no consequence. Under the artful pleading doctrine, federal
`
`courts may take jurisdiction over a complaint removed from state court where the plaintiff,
`
`although framing his action under state law, in actuality raises an essential federal question.’”)
`
`(denying motion to remand state law claim).
`
`
`
`
`3
`
`

`

`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 4 of 12
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`
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`9.
`
`Federal jurisdiction is also proper under the Grable framework “where federal law
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`completely preempts the state law claims” or “where the plaintiff has attempted to
`
`defeat removal by ‘artful pleading,’ i.e. by failing to plead a necessary federal question in his
`
`complaint.” Quepasa Corp. v. Valdez, No. 10-80698-Civ-Hurley, 2010 U.S. Dist. LEXIS 153817,
`
`at *13 (S.D. Fla. Nov. 19, 2010) (citations omitted). Under the “artful pleading” doctrine
`
`specifically, “[r]emoval will be held proper when the plaintiff has concealed a legitimate ground
`
`of removal by inadvertence, or artful pleading. The plaintiff may be said to have engaged in ‘artful
`
`pleading’ in particular when he pleads a state cause of action the merits of which turn on an
`
`important federal question.” Ayres v. GMC, 234 F.3d 514, 518 n.7 (11th Cir. 2000) (quoting 14B
`
`Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3732, at 333 (3d ed. 1998)
`
`(emphasis added); see also 15A Moore’s Federal Practice - Civil § 103.43; (“A plaintiff cannot
`
`avoid federal court simply by omitting a necessary federal question in the complaint; in such a
`
`case the necessary federal question will be deemed to be alleged in the complaint. This is a
`
`corollary to the well-pleaded complaint rule, sometimes called the ‘artful pleading’ exception, that
`
`a plaintiff may not frame the action solely under state law by omitting federal questions that are
`
`essential to recovery.”); 15A Moore’s Federal Practice - Civil § 107.73.
`
`The Legal Issue in This Case Depends Exclusively On Federal Law Interpretation.
`
`10.
`
`In this case, although Plaintiff pleads only a single state law cause of action, for
`
`violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §
`
`501.201 et seq., her allegations derive exclusively from the claim that the Only Natural Pet Hemp
`
`Seed Oil with Krill and Cod Liver product sold by PetSmart (hereinafter, the “Product”) violates
`
`the Federal Food Drug & Cosmetics Act (“FD&C Act”) because it is an unapproved “new animal
`
`drug” under that law and is therefore “unsafe” and “adulterated.” See Ex. B ¶¶ 15-23. Specifically,
`
`
`
`
`4
`
`

`

`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 5 of 12
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`
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`Plaintiff alleges that the product “is not approved by the FDA or indexed and therefore the Product
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`is considered unsafe under section 512(a) of the FD&C Act, 21 U.S.C. 360b(a), and adulterated
`
`under section 501(a)(5) of the FD&C Act, 21 U.S.C. 351(a)(5),” and as such, “the Product is an
`
`unapproved new animal drug and cannot lawfully be sold.” (Compl., Ex. B ¶¶ 19, 21).
`
`11.
`
`Plaintiff makes no other claims whatsoever regarding the efficacy of the Product
`
`or the truthfulness of the Product’s advertised claims – her grievance is exclusively a matter of
`
`regulatory compliance under federal law. Plaintiff makes no claims, for example, regarding any
`
`alleged problems or deficiencies with the Product. Instead, the Complaint merely alleges that these
`
`alleged regulatory violations make the product “worthless” as a matter of law because it cannot
`
`lawfully be sold. Id. ¶¶ 21-23.1 Accordingly, this Court has subject matter jurisdiction under
`
`Grable and the applications of Grable’s principles in this Circuit and District, because the
`
`Complaint “necessarily raise a stated federal issue” that is “actually disputed and substantial.”
`
`12.
`
`A federal forum may entertain the issues presented in this case without disturbing
`
`any congressionally approved balance of federal and state judicial responsibilities because it
`
`impacts only the interpretation of federal FDA law, with the state FDUTPA statute serving as
`
`nothing more than a vehicle for a challenge premised solely on alleged violations of federal law.
`
`Indeed, there is greater federal interest in this case, because its outcome depends entirely on the
`
`interpretation of federal law.
`
`13.
`
`The federal government has a strong interest in questions regarding the
`
`interpretation and application of the FD&C Act being litigated in a federal forum, so that these
`
`
`1 For the avoidance of doubt, even if such additional claims were made, this would not impact the
`Court’s jurisdiction because the federal law claims would still be essential to Plaintiff’s Complaint.
`
`
`
`
`5
`
`

`

`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 6 of 12
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`
`
`important questions of FDA law—to which the government devotes extensive regulatory
`
`resources—can be uniformly understood.2
`
`14.
`
`Moreover, the resolution of the issues presented in Plaintiff’s Complaint are a pure
`
`question of law as to how federal law regulates and applies to pet products containing hemp
`
`ingredients, and whether such products actually violate FDA laws, while the content of this
`
`Product’s ingredients and advertising are clearly indicated in the Complaint and are not a matter
`
`of factual dispute. This heightens the federal interest in this dispute, because there is a likelihood
`
`that the outcome of this case would control or influence litigation involving a variety of other
`
`similar pet products that contain comparable hemp-based ingredients. In fact, Plaintiff’s counsel
`
`has contemporaneously filed a nearly-identical action against PetSmart raising these same claims
`
`about an additional pet product, which PetSmart is also contemporaneously removing to this
`
`Court.3
`
`The Claims are Preempted Under Federal Law.
`
`15.
`
`There is also federal law preemption in this case,4 as courts in this District have
`
`previously held that product claims under the FDUTPA can be preempted by FDA law and
`
`regulation. For example, in Lombardo v. Johnson & Johnson Consumer Cos., No. 13-60536-Civ-
`
`SCOLA, 2013 U.S. Dist. LEXIS 189043 (S.D. Fla. 2013), the court held that Plaintiffs’ challenges
`
`
`2 By way of example,
`the FDA’s 2020 operating budget
`https://www.fda.gov/media/136036/download.
`3 See Newell v. PetSmart, Inc., Case No. CACE-20-007163 (Broward Cty. Cir. Ct., filed April 28,
`2020), for which PetSmart is contemporaneously filing a Notice of Removal to this Court today.
`4 PetSmart anticipates that FDA federal preemption will apply to this case, though not based on
`the precise provisions of FDA law that Plaintiff relies on. PetSmart disputes that the FDA-related
`statutes identified in Plaintiff’s Complaint are the correct federal statutes applicable to the Product,
`but will raise other arguments based on preemption by FDA law and regulation in its forthcoming
`Motion to Dismiss. Under either analysis, FDA preemption will apply.
`
`totals $5.9 billion. See
`
`
`
`
`6
`
`

`

`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 7 of 12
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`
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`to the labeling of sunscreen products was preempted as of the time that an on-point FDA
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`rulemaking guidance went into effect. See also Bailey v. Janssen Pharmaceutica, Inc., No. 06-
`
`80702-Civ-RYSKAMP/VITUNAC, 2007 U.S. Dist. LEXIS 112568, at *17-18 (S.D. Fla. Apr. 11,
`
`2007) (“The FDA has primary authority and expertise to regulate prescription drugs and services.
`
`As such, the FDA guidelines preempt state consumer fraud claims that constitute a ‘requirement
`
`or prohibition imposed under state law with respect to advertising or promotion’ . . . . FDA
`
`approved labeling for the patch cannot serve as a basis for the state law claim because such claim
`
`is preempted by FDA regulation.”) (also explaining that “Plaintiff is correct in noting that neither
`
`of these cases expressly holds that federal law preempts the Florida statute, yet these cases do
`
`provide that state law claims that conflict with federal regulations are preempted. The FDA’s
`
`determinations about the propriety of marketing materials regarding the patch deserve
`
`deference.”).
`
`16.
`
`Accordingly, this action involves disputed and substantial federal issues, including
`
`federal preemption, notwithstanding Plaintiff’s attempts at “artful pleading” to restrict their causes
`
`of action to state law. It is abundantly clear from the face of the Complaint that Plaintiff’s claims
`
`are entirely, and exclusively, premised on the construction and application of the Federal Food
`
`Drug & Cosmetics Act. The core and the crux of Plaintiff’s Complaint is that the challenged
`
`product cannot be lawfully sold because it is an unauthorized animal drug that violates the FD&C
`
`Act. The resolution of this case thus depends, entirely and inherently, on construction of federal
`
`law. Therefore, Plaintiff’s complaint raises a federal question and this Court has subject-matter
`
`jurisdiction.
`
`
`
`
`7
`
`

`

`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 8 of 12
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`
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`DIVERSITY JURISDICTION OF THIS COURT
`
`17.
`
`This Court also has diversity jurisdiction over this action pursuant to 28 U.S.C. §
`
`1332 because the amount in controversy exceeds $75,000, exclusive of interest and costs, and the
`
`parties are completely diverse, and were completely diverse at the time Plaintiff filed the
`
`complaint.
`
`A.
`
`There is Complete Diversity Between the Parties
`
`18.
`
`Defendant PetSmart is, and at all relevant times has been, a Delaware corporation
`
`with its principal place of business in Phoenix, Arizona.5 It is therefore deemed to be a citizen of
`
`Delaware and Arizona under 28 U.S.C. § 1332(c)(1).
`
`19.
`
`Plaintiff and putative class representative Astorria Sassano is, and at the time of
`
`the filing of the Complaint was, a resident of Broward County, Florida. Compl., Ex. B ¶ 2.
`
`B.
`
`The Amount in Controversy Exceeds $75,000, Exclusive of Interest and Costs
`
`20.
`
`The amount-in-controversy requirement found in 28 U.S.C. § 1332 is satisfied. On
`
`the face of the Complaint, while Plaintiff only specifies that she seeks damages “in excess of”
`
`$30,000 (Compl., Ex. B ¶ 1), she also seeks to recover attorney’s fees, as provided for under the
`
`Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Compl., Ex. B ¶¶ 1, 74, 76, 77; Fla.
`
`Stat. §§ 501.211 & 501.2105. It is well-established that if attorneys’ fees are provided for by
`
`statute, then a claim for attorneys’ fees counts toward the amount in controversy. See, e.g.,
`
`Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1265 (11th Cir. 2000) (“When a statute authorizes
`
`the recovery of attorney’s fees, a reasonable amount of those fees is included in the amount in
`
`
`5 In the Complaint, Plaintiff alleges that “Defendant is a foreign for-profit corporation, doing
`business in Broward County, Florida.” Compl., Ex. B ¶ 3.
`
`
`
`
`8
`
`

`

`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 9 of 12
`
`
`
`controversy.”); Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 808 n. 4 (11th
`
`Cir. 2003).
`
`21.
`
`The amount in controversy must include a reasonable estimation of attorneys’ fees
`
`to be incurred and sought if the plaintiff ultimately prevails. See, e.g., Hall v. Am. Sec. Ins. Co.,
`
`No. 09-21697-Civ-MORENO, 2009 U.S. Dist. LEXIS 130488, at *3-4 (S.D. Fla. July 23, 2009)
`
`(Moreno, J.) (“Plaintiff argues the Court must look to the amount of fees incurred up until the time
`
`of removal to determine whether the jurisdictional amount is met. . . . The court does not agree
`
`that this is the correct way to calculate a ‘reasonable’ amount of fees.”); Brown v. Cunningham
`
`Lindsey U.S., Inc., 3:05-cv-141-J-32HTS, 2005 U.S. Dist. LEXIS 38862, at *14 (M.D. Fla. May
`
`11, 2005) (considering what would be “a fair estimate of Ms. Brown’s attorneys’ fees through
`
`trial”); see also McGlynn v. Huston, 693 F. Supp. 2d 585, 596 (M.D. La. 2010) (considering “fees
`
`likely to be incurred in this matter”).
`
`22.
`
`“The Eleventh Circuit Court of Appeals has held that it is appropriate for a federal
`
`court to look beyond the face of a complaint in assessing its jurisdiction when a notice of removal
`
`is filed.” Lewis v. AT&T Corp., 898 F. Supp. 907, 909 (S.D. Fla. 1995) (citing Davis v. Cluet,
`
`Peabody & Co., 667 F.2d 1371, 1373 (11th Cir. 1982) (also stating that “a Court may properly
`
`look to a Notice of Removal to “suppl[y] the missing requisite [jurisdictional] facts.”). Indeed, the
`
`Eleventh Circuit has chastised plaintiffs who attempt to obfuscate and deliberately avoid federal
`
`jurisdiction in their complaints.
`
`23.
`
`This applies to the determination of the amount in controversy. As the Eleventh
`
`Circuit explained in Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1064 (11th Cir. 2010), “when a
`
`district court can determine, relying on its judicial experience and common sense, that a claim
`
`satisfies the amount-in-controversy requirements, it need not give credence to a plaintiff’s
`
`
`
`
`9
`
`

`

`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 10 of 12
`
`
`
`representation that the value of the claim is indeterminate. Otherwise, a defendant could wrongly
`
`be denied the removal to which it is entitled.” Id. The court explained that “preventing a district
`
`judge from acknowledging the value of the claim, merely because it is unspecified by the plaintiff,
`
`would force the court to abdicate its statutory right to hear the case…. Plaintiffs skilled in this form
`
`of artful pleading could, with this ‘trick,’ simply ‘make federal jurisdiction disappear.’” Id. The
`
`court reasoned that “[b]oth policy and precedent counsel against rewarding such obfuscating
`
`tactics.” Id.
`
`24.
`
`Here, litigation will be costly. Plaintiffs’ claims require analysis, research, and
`
`litigation of complicated federal statutory and regulatory requirements, as shown on the face of the
`
`Complaint, which cites at least six separate provisions of the Federal FD&C Act and various
`
`subsections thereof, in addition to FDA enforcement by way of warning letters. See Compl., Ex.
`
`B ¶¶ 15-22.
`
`25.
`
`This will involve the litigation of federal preemption, which will require review of
`
`precedent from outside of the immediate jurisdiction. In addition, the parties will have to litigate
`
`the availability and propriety of the various forms of injunctive relief Plaintiff seeks. As a result
`
`of the complexity of Plaintiff’s claims, attorneys’ fees for litigating this action are likely ultimately
`
`to be quite high if Plaintiff ultimately prevails on her claims.
`
`26.
`
`The previous conduct of Plaintiff’s counsel in other putative class actions makes
`
`it highly likely that, even in the absence of class certification, Plaintiff’s counsel will demand
`
`attorneys’ fees on behalf of the single named Plaintiff that far exceed $75,000. In a previous
`
`putative class action also related to product claims brought under the FDUTPA, the same counsel
`
`representing Plaintiff in this action, Howard W. Rubenstein, made a settlement proposal that
`
`sought attorneys’ fees in excess of $75,000. Counsel made this request early in the litigation of the
`
`
`
`
`10
`
`

`

`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 11 of 12
`
`
`
`matter, before briefing or argument regarding class certification. As a result, the case was removed
`
`to this court on the basis of diversity jurisdiction. See Perez v. Ralph Lauren Corp. Case No. 9:18-
`
`cv-81631 (S.D. Fla), Dkt. No. 1 and Exhibit B thereto (Declaration of Jason Stiehl indicating that
`
`Mr. Rubenstein’s settlement proposal “demanded in excess of $75,000 in damages and attorney’s
`
`fees” to resolve that action). It is therefore highly likely that in this similar case, Plaintiff’s counsel
`
`will likewise seek attorneys’ fees in excess of $75,000, even on behalf of the single named plaintiff.
`
`WHEREFORE, Defendant PetSmart respectfully requests, pursuant to 28 U.S.C. §§ 1331,
`
`1332, 1441, and 1446, that this action be removed in its entirety from the Circuit Court of the
`
`Seventeenth Judicial Circuit in and for Broward County, Florida, to this Court, that this Court
`
`proceed with the case as if it was originally initiated in this Court, and that this Court make and
`
`enter such further orders as may be necessary and proper.
`
`Dated: May 29, 2020
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`s/ Alec H. Schultz
`Alec H. Schultz
`Florida Bar No. 35022
`León Cosgrove, LLP
`255 Alhambra Circle, Suite 800
`Coral Gables, Florida 33134
`Telephone: 305-740-1975
`Facsimile: 305-437-8158
`Email: aschultz@leoncosgrove.com
`
`
`
`
`
`
`Jason P. Stiehl
`Nina Ruvinsky
`pro hac vice to be filed
`Loeb & Loeb LLP
`321 N. Clark Street, Suite 2300
`Chicago, Illinois 60654
`Telephone: 312-464-3100
`Facsimile: 312-464-3111
`Email: jstiehl@loeb.com
`Email: nruvinsky@loeb.com
`
`Counsel for Defendant PetSmart, Inc.
`
`11
`
`

`

`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 12 of 12
`
`
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that on May 29, 2020, I electronically filed the foregoing with the
`
`Clerk of Court using CM/ECF system which in turn will serve a copy by electronic mail to all
`
`counsel of record.
`
`
`
`
`
`
`s/ Alec H. Schultz
`Alec H. Schultz
`
`
`
`
`
`
`
`12
`
`

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