Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 1 of 7
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`
`ROBERT HARTIGAN, on behalf of
`themselves and all others similarly situated,
`
`
`
`
`
`MACY’S, INC.,
`
`
`
`Plaintiff,
`
`
`
`vs.
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case No. 20-10551
`
`
`
`NOTICE OF REMOVAL
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`PLEASE TAKE NOTICE that Defendant Macy’s, Inc. (“Defendant”) hereby removes this
`
`case from the Superior Court of the Commonwealth of Massachusetts to the United States District
`
`Court for the District of Massachusetts. In support of removal, Defendant states as follows.
`
`STATEMENT OF JURISDICTION
`
`On November 26, 2019, Plaintiff Robert Hartigan (“Plaintiff”) filed a Class Action
`
`Complaint (“Complaint”) against Defendant in Suffolk County Superior Court of the
`
`Commonwealth of Massachusetts, Case No. 2019-CV-03718-BLS1 (the “State Court Action”). A
`
`First Amended Complaint was then filed on or about February 14, 2020. Copies of the pleadings
`
`and papers Defendant is aware of having been filed in the State Court Action are collected and
`
`attached as Exhibit A.
`
`This case is removable under 28 U.S.C. § 1453(b) because it meets the requirements of the
`
`Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of
`
`28 U.S.C.) (hereinafter “CAFA”). A defendant’s notice of removal under CAFA need only contain
`
`
`
`
`1
`
`

`

`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 2 of 7
`
`
`
`a short and plain statement of the grounds for removal. Dart Cherokee Basin Operating Co., LLC
`
`v. Owens, 135 S. Ct. 547, 551-53, 190 L. Ed. 2d 495 (2014).
`
`THIS CASE IS REMOVABLE UNDER 28 U.S.C. § 1453(b) BECAUSE IT
`QUALIFIES AS A “CLASS ACTION” THAT MEETS THE
`REQUIREMENTS OF 28 U.S.C. § 1332(d)(2)
`
`This case qualifies as a “class action” in which the putative class includes at least 100
`
`members, the amount Plaintiffs have put into controversy exceeds $5,000,000, exclusive of interest
`
`and costs, and one or more members of the putative class and Defendant are citizens of different
`
`states. See 28 U.S.C. § 1332(d). Consequently, this action is removable pursuant to 28 U.S.C. §
`
`1453, which provides that a “class action” may be removed to federal court in accordance with 28
`
`U.S.C. § 1446(b). Defendant denies, however, that this case could be certified as a class action,
`
`and expressly reserves its right to oppose any motion for class certification filed in this action.
`
`A.
`
`The Putative Class Includes At Least 100 Members
`
`Plaintiff purports to bring this action “on behalf of himself and similarly situated
`
`individuals.” See Ex. A, First Amended Complaint ¶ 93. Plaintiff defines the putative class as
`
`follows: “All Massachusetts individuals whose Class Information was stolen, distributed, or
`
`accessed by unauthorized third-parties as a result of The Breach.” Id. ¶ 94. The First Amended
`
`Complaint defines “Class Information” as “Class Member’s personal information, including: first
`
`and last names, addresses, phone numbers, and credit card information.” Id. ¶ 23. The data incident
`
`that is the subject of the complaint potentially impacted 4,951 consumers in the Commonwealth
`
`of Massachusetts. Declaration of Michael McCullough, ¶ 5. Thus, the putative class easily exceeds
`
`the 100-member requirement imposed by CAFA.
`
`B.
`
`The Amount in Controversy Exceeds $5,000,000
`
`“The amount in controversy is simply an estimate of the total amount in dispute, not a
`
`
`
`
`2
`
`

`

`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 3 of 7
`
`
`
`prospective assessment of defendant’s liability.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395,
`
`400 (9th Cir. 2010). “When the plaintiff’s complaint does not state the amount in controversy, the
`
`defendant’s notice of removal may do so.” Dart Cherokee Basin Operating Co., 135 S. Ct. at 551.
`
`Plaintiffs allege, inter alia, a violation of M.G.L. c. 214, § 1B, a common law claim for
`
`negligence for allegedly breaching a duty of care owed to its card holders by failing to prevent the
`
`criminal acts of an unknown third party. Ex. A, First Amended Complaint ¶¶ 102-120; 121-142.
`
`Plaintiff also alleges a claim for breach of contract and M.G.L. c. 93A, § 2, M.G.L. c. 93H and for
`
`declaratory judgment all based on the same operative set of facts. Id. ¶¶ 143-197. Although
`
`Defendant denies the material allegations in the Complaint, denies any wrongdoing, and denies
`
`that Plaintiff would be entitled to recovery in any amount, the amount placed in controversy by
`
`Plaintiff’s class-based claims exceeds $5,000,000.
`
`Plaintiff alleges damages for the costs the putative class will incur to pay for credit
`
`monitoring to avoid identity theft, damages for breach of their privacy and public disclosure of
`
`private facts, and damages for loss of time. The putative class also seeks recovery of attorneys’
`
`fees. Of import, Plaintiff’s counsel sent Macy’s a settlement demand letter dated December 31,
`
`2019, in which he demanded compensation in the amount of 10 years of identity monitoring (or
`
`the cash equivalent) and $10,000 for each member of the putative class. As there were 4,951
`
`Massachusetts consumers potentially affected by the data incident, at $10,000 each, the
`
`settlement demand was over $49 million. In order for the amount in controversy to be less than
`
`$5,000,000, each class member could not recover more than $1,010 on average. In light of the
`
`six counts for which damages are sought, the number of potential putative class members (4,951)
`
`and the damages sought due to the potential for identity theft, the risk of “financial detriment”
`
`and the payment of “costly identity monitoring”, in additional to attorneys’ fees and costs, there
`
`
`
`
`3
`
`

`

`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 4 of 7
`
`
`
`is no doubt that the amount in controversy clearly exceeds the $5,000,000 jurisdictional
`
`threshold. McCullough Decl. at ¶¶ 4-5.
`
`It is well-settled in this jurisdiction that settlement demands are relevant to establish that
`
`the jurisdictional threshold has been met. Garick v. Mercedes-Benz USA, 2018 U.S. Dist. LEXIS
`
`53980, *5 (rationale for finding the amount in controversy was met included: 1) the complaint
`
`sought double or treble damages, 2) plaintiff made a pre-litigation demand of $50 million and 3)
`
`the amount would be satisfied if every class member only received $13). Other federal
`
`jurisdictions likewise have relied on settlement letters as relevant evidence of the amount in
`
`controversy. See Chase v. Shop ' N Save Warehouse Foods, Inc., 110 F.3d 424, 428-30 (7th Cir.
`
`1997) (plaintiff's settlement offer is properly consulted in determining "plaintiff's assessment of
`
`the value of her case"); Wilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir. 1994) ("Because the
`
`record contains a letter, which plaintiff's counsel sent to defendants stating that the amount in
`
`controversy exceeded $ 50,000, it is 'apparent' that removal was proper."); Cohn v. Petsmart, Inc.
`
`(9th Cir. 2002) 281 F.3d 837, 840 (demand letter sufficient to establish amount in controversy).
`
`In this case, even a conservative estimate of the penalties Plaintiff seeks for Defendant’s
`
`purported failure to prevent the data incident – at 4,951 consumers – quickly surpasses the
`
`$5,000,000 threshold, and removal under the CAFA is appropriate.
`
`C.
`
`Plaintiff and Defendant Are Citizens of Different States
`
`Plaintiff is a citizen of the State of Massachusetts as alleged in the Complaint. Ex. A, First
`
`Amended Complaint ¶ 5.
`
`For diversity jurisdiction purposes, a corporation is deemed to be a citizen of the state in
`
`which it is incorporated as well as the state where it has its principal place of business. 28 U.S.C.
`
`§ 1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77, 92-93, 130 S. Ct. 1181, 175 L. Ed. 2d 1029
`
`
`
`
`4
`
`

`

`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 5 of 7
`
`
`
`(2010) (holding “‘principal place of business’ is best read as referring to the place where a
`
`corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that
`
`Courts of Appeals have called the corporation’s ‘nerve center.’”).
`
`At the time Plaintiff filed the State Court Action, Defendant was incorporated under the
`
`laws of the State of Delaware. Defendant is still incorporated under the laws of the state of
`
`Delaware. Declaration of Steven R. Watts (“Watts Decl.”), ¶ 3. At the time Plaintiff filed the State
`
`Court Action, Defendant’s principal place of business was in New York, New York. Defendant’s
`
`principal place of business is still in New York, New York. Id. ¶ 4. This is demonstrated by the
`
`fact that Macy's, Inc.'s corporate offices are located in New York. Defendant is also only qualified
`
`to do business in Ohio, New York and Oregon (not Massachusetts). Also important to the analysis
`
`of Defendant’s principal place of business is that its board of directors meets in New York; the
`
`members of its executive management team are located in New York; and its other principal
`
`corporate officers are also located in New York. Accordingly, as the decisions of the board of
`
`directors, executive management team and corporate officers (the individuals responsible for
`
`directing, controlling and coordinating the activities of Macy's, Inc.) are rendered from New York,
`
`under Hertz, Defendant’s principal place of business is New York. Id.
`
`In accordance with 28 U.S.C. § 1332, there is complete diversity of citizenship because
`
`Plaintiff (Massachusetts) and Defendant (Delaware/New York) are citizens of different States. See
`
`28 U.S.C. § 1332(a)(1),(c)(1).
`
`REMOVAL IS TIMELY
`
`This Notice of Removal is timely filed pursuant to 28 U.S.C. § 1446(b) in that it is being
`
`filed within 30 days of the service of the Summons and Complaint by Defendant. The Summons
`
`and Complaint were served on Defendant on February 19, 2020.
`
`
`
`
`5
`
`

`

`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 6 of 7
`
`
`
`VENUE
`
`Venue is proper in this district because the Suffolk County Superior Court of the
`
`Commonwealth of Massachusetts is located within the federal District of Massachusetts and this
`
`is the “district and division embracing the place where such action is pending.” 28 U.S.C. §
`
`1441(a).
`
`NOTICE TO PLAINTIFF
`
`As required by 28 U.S.C. § 1446(d), Defendant will provide prompt written notice of the
`
`filing of this Notice of Removal to Plaintiff.
`
`NOTICE TO THE MASSACHUSETTS SUPERIOR COURT
`
`As required by 28 U.S.C. § 1446(d), Defendant will promptly file this Notice of Removal
`
`with the Clerk of the Suffolk County Superior Court for the Commonwealth of Massachusetts.
`
`WHEREFORE, pursuant to 28 U.S.C. §§ 1332, 1441, 1446, and 1453, Defendant removes
`
`this case from the Suffolk County Superior Court of the Commonwealth of Massachusetts to the
`
`United States District Court for the District of Massachusetts.
`
`
`
`
`
`
`
`Dated: March 19, 2020
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`By: _/s/ Brenda R. Sharton
`Brenda R. Sharton (BBO No. 556909)
`David S. Kantrowitz (BBO No. 676231)
`GOODWIN PROCTER LLP
`100 Northern Avenue
`Boston, Massachusetts 02210
`Tel.: 617.570.1000
`Fax: 617.523.1231
`bsharton@goodwinlaw.com
`dkantrowitz@goodwinlaw.com
`
`Attorneys for Defendant Macy’s, Inc.
`
`6
`
`

`

`Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 Page 7 of 7
`
`
`
`CERTIFICATE OF SERVICE
`
`
`I hereby certify that a true and correct copy of the foregoing was served on March 19,
`
`2020 via email on all counsel or parties of record listed below and will be sent via first class mail
`upon request:
`
`
`David J. Relethford
`Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC
`2 Salem Green, Suite 2
`Salem, MA 01970
`Email: drelethford@forrestlamothe.com
`
`Michael C. Forrest
`Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC
`2 Salem Green, Suite 2
`Salem, MA 01970
`Email: mforrest@forrestlamothe.com
`
`Robert E. Mazow
`Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC
`2 Salem Green, Suite 2
`Salem, MA 01970
`Email: rmazow@forrestlamothe.com
`
`
`
`
`
`
`
`
`
`/s/ Brenda R. Sharton
` Brenda R. Sharton
`
`
`
`7
`
`