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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`FT. LAUDERDALE DIVISION
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`ASTORRIA SASSANO,
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`Plaintiff,
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`vs.
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`PETSMART, INC., a Foreign For-Profit
`Corporation
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`Defendant.
`________________________________
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`Pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446, Defendant PetSmart, Inc.
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`CASE NO.: ____________________
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`NOTICE OF REMOVAL
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`(“PetSmart”) hereby gives notice of removal of the above-entitled action, and all claims and causes
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`of action therein, currently pending in the Circuit Court of the Seventeenth Judicial Circuit in and
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`for Broward County, Florida (the “State Court Action”). Defendant PetSmart appears for the
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`purposes of removal only, reserves all defenses and rights available to it, and as grounds for
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`removal states as follows:
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`NOTICE OF REMOVAL
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`1.
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`Plaintiff filed the above-entitled action on April 22, 2020 against PetSmart in the
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`Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida. Plaintiff
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`served PetSmart’s registered agent with a copy of the Complaint via process server on May 1,
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`2020. A copy of the receipt of service of process from PetSmart’s registered agent is attached
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`hereto as Exhibit A.
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`2.
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`Service of Process on May 1, 2020 constituted PetSmart’s first receipt of a copy
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`of the initial pleading setting forth the claim for relief upon which such action or proceeding is
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`based. This Notice of Removal is being filed within 30 days of the same, and is therefore timely
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`under 28 U.S.C. § 1446(b)(1).
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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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`3.
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`Pursuant to 28 U.S.C. § 1446(d), PetSmart will file a copy of this Notice of
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`Removal with the Clerk of the Circuit Court of the Seventeenth Judicial Circuit in and for Broward
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`County, Florida, and will serve a copy of this Notice of Removal on Plaintiff to properly effect
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`removal of this action to this Court.
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`4.
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`A true and correct copy of the Complaint is attached hereto as Exhibit B. Pursuant
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`to 28 U.S.C. § 1446(a), a true and correct copy of all other process, pleadings, and orders served
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`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
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`Court Action.
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`5.
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`In submitting this Notice of Removal, PetSmart reserves all rights and defenses,
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`including as to venue, personal jurisdiction, the legal sufficiency of the claims alleged in Plaintiff’s
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`complaint, and all other objections and defenses.
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`FEDERAL QUESTION JURISDICTION OF THIS COURT
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`6.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
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`1331 and 1441(a) because this action necessarily raises substantial and disputed federal issues. See
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`Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005). Suits alleging
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`only state-law causes of action nevertheless “arise under” federal law if the “state-law claim[s]
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`necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum
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`may entertain without disturbing any congressionally approved balance of federal and state judicial
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`responsibilities.” Grable, 545 U.S. at 314. Applying this test “calls for a ‘common-sense
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`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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`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
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`identified three factors to assist in this inquiry. First, a pure question of law is more likely to be a
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`substantial federal question. Second, a question that will control many other cases is more likely
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`to be a substantial federal question. Third, a question that the government has a strong interest in
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`litigating in a federal forum is more likely to be a substantial federal question.” MDS (Can.), Inc.
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`v. RAD Source Techs., Inc., 720 F.3d 833, 842 (11th Cir. 2013).
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`8.
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`This District has likewise followed the test set out by the Supreme Court in Grable,
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`and also underscored that “[i]n making this determination, ‘the removing court looks to the
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`substance of the complaint, not the labels used in it.’” Edwards v. Deloitte & Touche, LLP, No.
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`16-21221-Civ-Scola, 2017 U.S. Dist. LEXIS 221984, at *10 (S.D. Fla. Jan. 18, 2017) (finding
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`federal question jurisdiction over exclusively state law causes of action). This District has also
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`made clear that, “even if it appears from the complaint that only state-law causes of action are
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`actually pleaded, a federal question will be inferred where ‘the vindication of a right under state
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`law necessarily turns on some construction of federal law.’” MSPA Claims 1, LLC v. Allstate Prop.
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`& Cas. Ins. Co., No. 16-20443-Civ-Scola, 2016 U.S. Dist. LEXIS 92958, at *5-6 (S.D. Fla. June
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`29, 2016); see also Korman v. IRS, No. 06-81294-Civ-Marra, 2007 U.S. Dist. LEXIS 91046, at
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`*10 (S.D. Fla. Feb. 20, 2007) (“That Plaintiff chose to cast his challenge to the propriety of the
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`federal tax lien in state law terms is of no consequence. Under the artful pleading doctrine, federal
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`courts may take jurisdiction over a complaint removed from state court where the plaintiff,
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`although framing his action under state law, in actuality raises an essential federal question.’”)
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`(denying motion to remand state law claim).
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`3
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`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 4 of 12
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`9.
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`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
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`defeat removal by ‘artful pleading,’ i.e. by failing to plead a necessary federal question in his
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`complaint.” Quepasa Corp. v. Valdez, No. 10-80698-Civ-Hurley, 2010 U.S. Dist. LEXIS 153817,
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`at *13 (S.D. Fla. Nov. 19, 2010) (citations omitted). Under the “artful pleading” doctrine
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`specifically, “[r]emoval will be held proper when the plaintiff has concealed a legitimate ground
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`of removal by inadvertence, or artful pleading. The plaintiff may be said to have engaged in ‘artful
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`pleading’ in particular when he pleads a state cause of action the merits of which turn on an
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`important federal question.” Ayres v. GMC, 234 F.3d 514, 518 n.7 (11th Cir. 2000) (quoting 14B
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`Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3732, at 333 (3d ed. 1998)
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`(emphasis added); see also 15A Moore’s Federal Practice - Civil § 103.43; (“A plaintiff cannot
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`avoid federal court simply by omitting a necessary federal question in the complaint; in such a
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`case the necessary federal question will be deemed to be alleged in the complaint. This is a
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`corollary to the well-pleaded complaint rule, sometimes called the ‘artful pleading’ exception, that
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`a plaintiff may not frame the action solely under state law by omitting federal questions that are
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`essential to recovery.”); 15A Moore’s Federal Practice - Civil § 107.73.
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`The Legal Issue in This Case Depends Exclusively On Federal Law Interpretation.
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`10.
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`In this case, although Plaintiff pleads only a single state law cause of action, for
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`violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §
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`501.201 et seq., her allegations derive exclusively from the claim that the Only Natural Pet Hemp
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`Seed Oil with Krill and Cod Liver product sold by PetSmart (hereinafter, the “Product”) violates
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`the Federal Food Drug & Cosmetics Act (“FD&C Act”) because it is an unapproved “new animal
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`drug” under that law and is therefore “unsafe” and “adulterated.” See Ex. B ¶¶ 15-23. Specifically,
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`4
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`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 5 of 12
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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
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`under section 501(a)(5) of the FD&C Act, 21 U.S.C. 351(a)(5),” and as such, “the Product is an
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`unapproved new animal drug and cannot lawfully be sold.” (Compl., Ex. B ¶¶ 19, 21).
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`11.
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`Plaintiff makes no other claims whatsoever regarding the efficacy of the Product
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`or the truthfulness of the Product’s advertised claims – her grievance is exclusively a matter of
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`regulatory compliance under federal law. Plaintiff makes no claims, for example, regarding any
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`alleged problems or deficiencies with the Product. Instead, the Complaint merely alleges that these
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`alleged regulatory violations make the product “worthless” as a matter of law because it cannot
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`lawfully be sold. Id. ¶¶ 21-23.1 Accordingly, this Court has subject matter jurisdiction under
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`Grable and the applications of Grable’s principles in this Circuit and District, because the
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`Complaint “necessarily raise a stated federal issue” that is “actually disputed and substantial.”
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`12.
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`A federal forum may entertain the issues presented in this case without disturbing
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`any congressionally approved balance of federal and state judicial responsibilities because it
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`impacts only the interpretation of federal FDA law, with the state FDUTPA statute serving as
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`nothing more than a vehicle for a challenge premised solely on alleged violations of federal law.
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`Indeed, there is greater federal interest in this case, because its outcome depends entirely on the
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`interpretation of federal law.
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`13.
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`The federal government has a strong interest in questions regarding the
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`interpretation and application of the FD&C Act being litigated in a federal forum, so that these
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`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.
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`5
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`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
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`resources—can be uniformly understood.2
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`14.
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`Moreover, the resolution of the issues presented in Plaintiff’s Complaint are a pure
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`question of law as to how federal law regulates and applies to pet products containing hemp
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`ingredients, and whether such products actually violate FDA laws, while the content of this
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`Product’s ingredients and advertising are clearly indicated in the Complaint and are not a matter
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`of factual dispute. This heightens the federal interest in this dispute, because there is a likelihood
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`that the outcome of this case would control or influence litigation involving a variety of other
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`similar pet products that contain comparable hemp-based ingredients. In fact, Plaintiff’s counsel
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`has contemporaneously filed a nearly-identical action against PetSmart raising these same claims
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`about an additional pet product, which PetSmart is also contemporaneously removing to this
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`Court.3
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`The Claims are Preempted Under Federal Law.
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`15.
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`There is also federal law preemption in this case,4 as courts in this District have
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`previously held that product claims under the FDUTPA can be preempted by FDA law and
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`regulation. For example, in Lombardo v. Johnson & Johnson Consumer Cos., No. 13-60536-Civ-
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`SCOLA, 2013 U.S. Dist. LEXIS 189043 (S.D. Fla. 2013), the court held that Plaintiffs’ challenges
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`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.
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`totals $5.9 billion. See
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`6
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`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 7 of 12
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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-
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`80702-Civ-RYSKAMP/VITUNAC, 2007 U.S. Dist. LEXIS 112568, at *17-18 (S.D. Fla. Apr. 11,
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`2007) (“The FDA has primary authority and expertise to regulate prescription drugs and services.
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`As such, the FDA guidelines preempt state consumer fraud claims that constitute a ‘requirement
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`or prohibition imposed under state law with respect to advertising or promotion’ . . . . FDA
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`approved labeling for the patch cannot serve as a basis for the state law claim because such claim
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`is preempted by FDA regulation.”) (also explaining that “Plaintiff is correct in noting that neither
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`of these cases expressly holds that federal law preempts the Florida statute, yet these cases do
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`provide that state law claims that conflict with federal regulations are preempted. The FDA’s
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`determinations about the propriety of marketing materials regarding the patch deserve
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`deference.”).
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`16.
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`Accordingly, this action involves disputed and substantial federal issues, including
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`federal preemption, notwithstanding Plaintiff’s attempts at “artful pleading” to restrict their causes
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`of action to state law. It is abundantly clear from the face of the Complaint that Plaintiff’s claims
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`are entirely, and exclusively, premised on the construction and application of the Federal Food
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`Drug & Cosmetics Act. The core and the crux of Plaintiff’s Complaint is that the challenged
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`product cannot be lawfully sold because it is an unauthorized animal drug that violates the FD&C
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`Act. The resolution of this case thus depends, entirely and inherently, on construction of federal
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`law. Therefore, Plaintiff’s complaint raises a federal question and this Court has subject-matter
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`jurisdiction.
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`7
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`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 8 of 12
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`DIVERSITY JURISDICTION OF THIS COURT
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`17.
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`This Court also has diversity jurisdiction over this action pursuant to 28 U.S.C. §
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`1332 because the amount in controversy exceeds $75,000, exclusive of interest and costs, and the
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`parties are completely diverse, and were completely diverse at the time Plaintiff filed the
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`complaint.
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`A.
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`There is Complete Diversity Between the Parties
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`18.
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`Defendant PetSmart is, and at all relevant times has been, a Delaware corporation
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`with its principal place of business in Phoenix, Arizona.5 It is therefore deemed to be a citizen of
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`Delaware and Arizona under 28 U.S.C. § 1332(c)(1).
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`19.
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`Plaintiff and putative class representative Astorria Sassano is, and at the time of
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`the filing of the Complaint was, a resident of Broward County, Florida. Compl., Ex. B ¶ 2.
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`B.
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`The Amount in Controversy Exceeds $75,000, Exclusive of Interest and Costs
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`20.
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`The amount-in-controversy requirement found in 28 U.S.C. § 1332 is satisfied. On
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`the face of the Complaint, while Plaintiff only specifies that she seeks damages “in excess of”
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`$30,000 (Compl., Ex. B ¶ 1), she also seeks to recover attorney’s fees, as provided for under the
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`Florida Deceptive and Unfair Trade Practices Act (FDUTPA). Compl., Ex. B ¶¶ 1, 74, 76, 77; Fla.
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`Stat. §§ 501.211 & 501.2105. It is well-established that if attorneys’ fees are provided for by
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`statute, then a claim for attorneys’ fees counts toward the amount in controversy. See, e.g.,
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`Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1265 (11th Cir. 2000) (“When a statute authorizes
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`the recovery of attorney’s fees, a reasonable amount of those fees is included in the amount in
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`5 In the Complaint, Plaintiff alleges that “Defendant is a foreign for-profit corporation, doing
`business in Broward County, Florida.” Compl., Ex. B ¶ 3.
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`8
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`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 9 of 12
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`controversy.”); Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 808 n. 4 (11th
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`Cir. 2003).
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`21.
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`The amount in controversy must include a reasonable estimation of attorneys’ fees
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`to be incurred and sought if the plaintiff ultimately prevails. See, e.g., Hall v. Am. Sec. Ins. Co.,
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`No. 09-21697-Civ-MORENO, 2009 U.S. Dist. LEXIS 130488, at *3-4 (S.D. Fla. July 23, 2009)
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`(Moreno, J.) (“Plaintiff argues the Court must look to the amount of fees incurred up until the time
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`of removal to determine whether the jurisdictional amount is met. . . . The court does not agree
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`that this is the correct way to calculate a ‘reasonable’ amount of fees.”); Brown v. Cunningham
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`Lindsey U.S., Inc., 3:05-cv-141-J-32HTS, 2005 U.S. Dist. LEXIS 38862, at *14 (M.D. Fla. May
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`11, 2005) (considering what would be “a fair estimate of Ms. Brown’s attorneys’ fees through
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`trial”); see also McGlynn v. Huston, 693 F. Supp. 2d 585, 596 (M.D. La. 2010) (considering “fees
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`likely to be incurred in this matter”).
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`22.
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`“The Eleventh Circuit Court of Appeals has held that it is appropriate for a federal
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`court to look beyond the face of a complaint in assessing its jurisdiction when a notice of removal
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`is filed.” Lewis v. AT&T Corp., 898 F. Supp. 907, 909 (S.D. Fla. 1995) (citing Davis v. Cluet,
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`Peabody & Co., 667 F.2d 1371, 1373 (11th Cir. 1982) (also stating that “a Court may properly
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`look to a Notice of Removal to “suppl[y] the missing requisite [jurisdictional] facts.”). Indeed, the
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`Eleventh Circuit has chastised plaintiffs who attempt to obfuscate and deliberately avoid federal
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`jurisdiction in their complaints.
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`23.
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`This applies to the determination of the amount in controversy. As the Eleventh
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`Circuit explained in Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1064 (11th Cir. 2010), “when a
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`district court can determine, relying on its judicial experience and common sense, that a claim
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`satisfies the amount-in-controversy requirements, it need not give credence to a plaintiff’s
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`9
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`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 10 of 12
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`representation that the value of the claim is indeterminate. Otherwise, a defendant could wrongly
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`be denied the removal to which it is entitled.” Id. The court explained that “preventing a district
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`judge from acknowledging the value of the claim, merely because it is unspecified by the plaintiff,
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`would force the court to abdicate its statutory right to hear the case…. Plaintiffs skilled in this form
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`of artful pleading could, with this ‘trick,’ simply ‘make federal jurisdiction disappear.’” Id. The
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`court reasoned that “[b]oth policy and precedent counsel against rewarding such obfuscating
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`tactics.” Id.
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`24.
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`Here, litigation will be costly. Plaintiffs’ claims require analysis, research, and
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`litigation of complicated federal statutory and regulatory requirements, as shown on the face of the
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`Complaint, which cites at least six separate provisions of the Federal FD&C Act and various
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`subsections thereof, in addition to FDA enforcement by way of warning letters. See Compl., Ex.
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`B ¶¶ 15-22.
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`25.
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`This will involve the litigation of federal preemption, which will require review of
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`precedent from outside of the immediate jurisdiction. In addition, the parties will have to litigate
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`the availability and propriety of the various forms of injunctive relief Plaintiff seeks. As a result
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`of the complexity of Plaintiff’s claims, attorneys’ fees for litigating this action are likely ultimately
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`to be quite high if Plaintiff ultimately prevails on her claims.
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`26.
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`The previous conduct of Plaintiff’s counsel in other putative class actions makes
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`it highly likely that, even in the absence of class certification, Plaintiff’s counsel will demand
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`attorneys’ fees on behalf of the single named Plaintiff that far exceed $75,000. In a previous
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`putative class action also related to product claims brought under the FDUTPA, the same counsel
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`representing Plaintiff in this action, Howard W. Rubenstein, made a settlement proposal that
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`sought attorneys’ fees in excess of $75,000. Counsel made this request early in the litigation of the
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`10
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`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 11 of 12
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`matter, before briefing or argument regarding class certification. As a result, the case was removed
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`to this court on the basis of diversity jurisdiction. See Perez v. Ralph Lauren Corp. Case No. 9:18-
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`cv-81631 (S.D. Fla), Dkt. No. 1 and Exhibit B thereto (Declaration of Jason Stiehl indicating that
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`Mr. Rubenstein’s settlement proposal “demanded in excess of $75,000 in damages and attorney’s
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`fees” to resolve that action). It is therefore highly likely that in this similar case, Plaintiff’s counsel
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`will likewise seek attorneys’ fees in excess of $75,000, even on behalf of the single named plaintiff.
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`WHEREFORE, Defendant PetSmart respectfully requests, pursuant to 28 U.S.C. §§ 1331,
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`1332, 1441, and 1446, that this action be removed in its entirety from the Circuit Court of the
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`Seventeenth Judicial Circuit in and for Broward County, Florida, to this Court, that this Court
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`proceed with the case as if it was originally initiated in this Court, and that this Court make and
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`enter such further orders as may be necessary and proper.
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`Dated: May 29, 2020
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`Respectfully submitted,
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`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
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`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
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`Counsel for Defendant PetSmart, Inc.
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`Case 0:20-cv-61062-RKA Document 1 Entered on FLSD Docket 05/29/2020 Page 12 of 12
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on May 29, 2020, I electronically filed the foregoing with the
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`Clerk of Court using CM/ECF system which in turn will serve a copy by electronic mail to all
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`counsel of record.
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`s/ Alec H. Schultz
`Alec H. Schultz
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`12
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