IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NORTH CAROLINA
`WESTERN DIVISION
`Civil Action No.: 5:20-cv-479
`
`MAXWELL FOODS, LLC,
`
`Plaintiff,
`
`v.
`
`SMITHFIELD FOODS, INC.,
`
`Defendant.
`
`NOTICE OF REMOVAL PURSUANT TO
`28 U.S.C. §§ 1332, 1441, AND 1446
`
`PLEASE TAKE NOTICE that Defendant Smithfield Foods, Inc. (“Smithfield”), through
`
`counsel and pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, hereby removes Case No. 20-CVS-
`
`1430 from the General Court of Justice, Superior Court Division for Wayne County, North
`
`Carolina (the “State Court”) to the United States District Court for the Eastern District of North
`
`Carolina, Western Division, being the district and division in which this case is pending. In support
`
`of this removal, Smithfield states the following:
`
`1.
`
`On August 13, 2020, Plaintiff Maxwell Foods, LLC (“Maxwell”) filed a Complaint
`
`against Defendant Smithfield in the State Court, captioned Maxwell Foods, LLC v. Smithfield
`
`Foods, Inc., which was assigned Case No. 20-CVS-1430. Smithfield attaches to this Notice all
`
`process, pleadings, orders, and other documents that have been served on Smithfield in the State
`
`Court action, excluding discovery, as Exhibits A through D, as required by 28 U.S.C. § 1446(a)
`
`and Local Civil Rule 5.3(a)(1).
`
`2.
`
`Smithfield was served with Maxwell’s Civil Summons, Civil Action Cover Sheet,
`
`and Complaint on August 14, 2020. The Complaint is the initial pleading setting forth the claims
`
`for relief upon which this action is based. Thirty days have not yet elapsed from service of process.
`
`Case 5:20-cv-00479-M Document 1 Filed 09/11/20 Page 1 of 6
`
`

`

`Removal is therefore timely under 28 U.S.C. § 1446(b).
`
`3.
`
`This is a civil action of which this Court has original jurisdiction under 28 U.S.C.
`
`§ 1332(a) because complete diversity exists between the parties to this litigation and the amount
`
`in controversy exceeds $75,000, exclusive of interest and costs.
`
`4.
`
`Plaintiff Maxwell is a limited liability company organized and existing under the
`
`laws of North Carolina. Compl. ¶ 1. For purposes of diversity jurisdiction, Maxwell’s citizenship
`
`is determined by the citizenship of its members. See Cent. W. Va. Energy Co. v. Mountain State
`
`Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011) (“For purposes of diversity jurisdiction, the
`
`citizenship of a limited liability company . . . is determined by the citizenship of all of its
`
`members.”).
`
`5.
`
`Maxwell’s three members are J L Maxwell III, Jere Walter Pelletier III, and Thomas
`
`(Tom) Howell. J L Maxwell III is a citizen of the United States and is domiciled within the State
`
`of North Carolina. Jere Walter Pelletier III is a citizen of the United States and is domiciled within
`
`the State of North Carolina. Thomas (Tom) Howell is a citizen of the United States and is
`
`domiciled within the State of North Carolina. Accordingly, J L Maxwell III, Jere Walter Pelletier
`
`III, and Thomas (Tom) Howell is each a citizen of the State of North Carolina for diversity
`
`jurisdiction purposes.
`
`at 103.
`
`6.
`
`7.
`
`Maxwell is thus a citizen of North Carolina. See Cent. W. Va. Energy Co., 636 F.3d
`
`Defendant Smithfield is a corporation organized and incorporated under the laws
`
`of Virginia. Smithfield’s principal place of business is located in Smithfield, Virginia, where
`
`Smithfield maintains its corporate headquarters. Smithfield is thus a citizen of Virginia.
`
`8.
`
`Complete diversity therefore exists between the parties to this litigation, as required
`
`- 2 -
`Case 5:20-cv-00479-M Document 1 Filed 09/11/20 Page 2 of 6
`
`

`

`by 28 U.S.C. § 1332(a).
`
`9.
`
`This case also satisfies the amount in controversy requirement of 28 U.S.C.
`
`§ 1332(a).
`
`10.
`
`Specifically, Maxwell alleges three claims for breach of contract and one claim for
`
`breach of duty of good faith and fair dealing related to an alleged agreement between Maxwell and
`
`Smithfield for the purchase and sale of swine. Compl. ¶¶ 82–112. With regard to the breach of
`
`contract claims, Maxwell alleges that Smithfield has breached (i) obligations related to a “most-
`
`favored-nation provision,” Compl. ¶¶ 82–90; (ii) a duty to negotiate, Compl. ¶¶ 91–100; and
`
`(iii) an “output” provision of the agreement whereby Smithfield would purchase “all” of the
`
`“Market Swine” produced by Maxwell up to a cap of 155,000 per month, Compl. ¶¶ 101–108.
`
`11. Maxwell alleges that Smithfield’s breach of the “most-favored-nation provision”
`
`of the alleged agreement has “caused Maxwell damages totaling tens of millions of dollars.”
`
`Compl. ¶ 89. Maxwell further alleges that Smithfield’s breach of the “output” provision of the
`
`alleged agreement “has cost Maxwell in excess of $1 million.” Compl. ¶ 107.
`
`12.
`
`Additionally, the Complaint demands that Smithfield be ordered to “purchase all
`
`Market Swine actually produced by Maxwell and any Affiliate of Maxwell up to a maximum of
`
`one hundred fifty-five thousand (155,000) head of Market Swine per month.” Compl. p. 22, ¶ 2.
`
`“In actions seeking declaratory or injunctive relief, it is well established that the amount in
`
`controversy is measured by the value of the object of the litigation.” Hunt v. Wash. State Apple
`
`Advert. Comm’n, 432 U.S. 333, 347 (1977). According to Maxwell’s allegations, the value of its
`
`requested injunctive relief substantially exceeds $75,000. This is evidenced by the Complaint’s
`
`allegations that Smithfield’s failure “to purchase all of Maxwell’s production” up to the 155,000
`
`cap between April 2020 and August 2020, a span of four and a half months at most, “has cost
`
`- 3 -
`Case 5:20-cv-00479-M Document 1 Filed 09/11/20 Page 3 of 6
`
`

`

`Maxwell in excess of $1 million, with additional . . . damages accruing each month.” Compl.
`
`¶¶ 64, 66–68, 107.
`
`13.
`
`Based upon these allegations in the Complaint, the amount in controversy exceeds
`
`the $75,000 threshold established by 28 U.S.C. § 1332(a), exclusive of interests and costs. See
`
`JTH Tax, Inc. v. Frashier, 624 F.3d 635, 638 (4th Cir. 2010) (“Courts generally determine the
`
`amount in controversy by reference to the plaintiff’s complaint.”).
`
`14.
`
`Therefore, this is a civil action of which this Court has original jurisdiction under
`
`28 U.S.C. § 1332(a). Smithfield may thus remove this civil action pursuant to 28 U.S.C.
`
`§§ 1441(a) and 1446.
`
`15.
`
`The State Court is located within this judicial district. 28 U.S.C. § 113(a). Venue
`
`is therefore proper under 28 U.S.C. § 1441(a).
`
`16.
`
`The State Court is located within the Western Division of this judicial district.
`
`Local Civil Rule 40.1(b). Assignment to this division is therefore proper. Local Civil Rule
`
`40.1(c)(1).
`
`17.
`
`Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice is being filed with the clerk
`
`of the State Court, and Smithfield will provide written notice of the filing of this Notice to Maxwell
`
`through its counsel of record. A copy of all documents filed with this Court shall be served on
`
`Maxwell pursuant to Federal Rule of Civil Procedure 5 and Local Civil Rule 5.1(e).
`
`18.
`
`Smithfield reserves the right to file additional support for this Notice by way of
`
`declarations, deposition testimony, expert testimony, discovery responses, supplemental
`
`memoranda, and/or legal argument.
`
`19.
`
`By filing this Notice, Smithfield does not waive any defenses that may be available
`
`to it.
`
`- 4 -
`Case 5:20-cv-00479-M Document 1 Filed 09/11/20 Page 4 of 6
`
`

`

`Based on the foregoing, Defendant Smithfield hereby removes this action from the North
`
`Carolina General Court of Justice, Superior Court Division for Wayne County to the United States
`
`District Court for the Eastern District of North Carolina, Western Division.
`
`This 11th day of September, 2020.
`
`/s/ Robert E. Harrington
`Robert E. Harrington
`N.C. Bar No. 26967
`rharrington@robinsonbradshaw.com
`ROBINSON, BRADSHAW & HINSON, P.A.
`101 N. Tryon St., Ste. 1900
`Charlotte, North Carolina 28246
`Telephone:
`704.377.2536
`Facsimile:
`704.378.4000
`
`Mark A. Hiller
`N.C. Bar No. 50004
`mhiller@robinsonbradshaw.com
`ROBINSON, BRADSHAW & HINSON, P.A.
`1450 Raleigh Road, Ste. 100
`Chapel Hill, North Carolina 27517
`Telephone:
`919.328.8800
`Facsimile:
`919.328.8790
`
`Attorneys for Defendant
`
`- 5 -
`Case 5:20-cv-00479-M Document 1 Filed 09/11/20 Page 5 of 6
`
`

`

`CERTIFICATE OF SERVICE
`
`I hereby certify that on September 11, 2020, I electronically filed the foregoing with the
`
`Clerk of Court using the CM/ECF system.
`
`I further certify that I have mailed the document to the following:
`
`Reid Phillips
`Charles E. Coble
`Eric M. David
`Shepard D. O’Connell
`BROOKS, PIERCE, MCLENDON, HUMPRHEY & LEONARD, L.L.P.
`P.O. Box 26000
`Greensboro, NC 27420
`
`Attorneys for Plaintiff
`
`/s/ Robert E. Harrington
`Robert E. Harrington
`N.C. Bar No. 26967
`rharrington@robinsonbradshaw.com
`ROBINSON, BRADSHAW & HINSON, P.A.
`101 N. Tryon St., Ste. 1900
`Charlotte, North Carolina 28246
`Telephone:
`704.377.2536
`Facsimile:
`704.378.4000
`
`Mark A. Hiller
`N.C. Bar No. 50004
`mhiller@robinsonbradshaw.com
`ROBINSON, BRADSHAW & HINSON, P.A.
`1450 Raleigh Road, Ste. 100
`Chapel Hill, North Carolina 27517
`Telephone:
`919.328.8800
`Facsimile:
`919.328.8790
`
`Attorneys for Defendant
`
`Case 5:20-cv-00479-M Document 1 Filed 09/11/20 Page 6 of 6
`
`