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Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`
`ARMSLIST LLC, TORQUELIST LLC,
`JONATHAN GIBBON, and N. ANDREW
`VARNEY, III,
`
`
`
`Civil Action No. ______________
`
`Plaintiff,
`
`v.
`
`FACEBOOK, INC., and INSTAGRAM, LLC,
`
`Defendants.
`
`
`
`Electronically filed
`
`
`
`
`
`NOTICE OF REMOVAL
`
`Defendants Facebook, Inc.1 (“Facebook”) and Instagram, LLC (“Instagram”)
`
`(collectively “Defendants”), by and through their undersigned counsel and pursuant to 28
`
`U.S.C. §§ 1332(a), 1441 and 1446, file this Notice of Removal of Case No. 21C103063, which
`
`was pending in the Court of Common Pleas of Westmoreland County, Pennsylvania.2 In
`
`support of their Notice of Removal, Defendants state as follows:
`
`INTRODUCTION AND BACKGROUND
`
`1.
`
`On or about August 11, 2021, Plaintiffs Armslist LLC, Torquelist LLC, Jonathan
`
`Gibbon, and N. Andrew Varney, III (“Plaintiffs”) filed a “Complaint for Declaratory and
`
`Injunctive Relief” in the Court of Common Pleas of Westmoreland County, Pennsylvania, styled
`
`
`1 On October 28, 2021, Facebook, Inc. changed its name to Meta Platforms, Inc. Because
`Plaintiffs’ Complaint was filed prior to the name change and for ease of reference, this Notice of
`Removal refers to Defendant identified as “Facebook, Inc.” in the pleadings as “Facebook, Inc.”
`here.
`2 Counsel for Defendants specially appear for purposes of this notice of removal. This notice
`shall not be construed as a general appearance or the consent of Defendants to the jurisdiction of
`the Court, nor as a waiver of any defenses, including on grounds of lack of personal jurisdiction
`or improper venue.
`
`101154892.1
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`2:21-cv-1917
`
`

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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 2 of 11
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`as Armslist LLC, Torquelist LLC, Jonathan Gibbon, and N. Andrew Varney, III v. Facebook, Inc.
`
`and Instagram, LLC., Case No. 21CI03063. The Complaint did not contain a demand for
`
`damages. Exhibit A, Compl., ¶ 1, and pp. 34-40.
`
`2.
`
`On September 1, 2021, Plaintiffs filed a Petition to File Amended and
`
`Supplemental Complaint. Like the original Complaint, the Amended and Supplemental
`
`Complaint sought declaratory judgment and injunctive relief only. Exhibit B, Am. & Suppl.
`
`Compl. ¶ 7, and pp. 37-43.
`
`3.
`
`Plaintiffs served the Complaint and Amended and Supplemental Complaint upon
`
`Instagram on September 15, 2021, and upon Facebook on September 29, 2021. Exhibit C,
`
`Affidavit of Service upon Defendants, Instagram, LLC and Facebook, Inc.
`
`4.
`
`Defendants filed preliminary objections to the Amended and Supplemental
`
`Complaint on November 12, 2021. Exhibit D, Defendants’ Preliminary Objections to Plaintiffs’
`
`Complaint, pp. 3-5.
`
`5.
`
`In response to Defendants’ preliminary objections, Plaintiffs filed and served a
`
`Second Amended and Supplemental Complaint on December 2, 2021 (“SAC”). Exhibit E,
`
`Second Am. & Suppl. Compl. The SAC added a count for breach of contract (Count Two), and
`
`in the alternative, unjust enrichment (Count Three) and promissory estoppel (Count Four). Id. at
`
`pp. 45, 49, 52, 53. Counts Two, Three and Four will be collectively referred to herein as
`
`Plaintiffs’ “Breach of Contract Claims.”
`
`6.
`
`Further, Plaintiffs’ SAC added a request for damages “not to exceed $74,999.99,”
`
`at Counts Two through Four. Id. at ¶ 254, 274, 294.
`
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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 3 of 11
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`7.
`
`Copies of “all process, pleadings, and orders served upon [] defendant” are
`
`attached hereto as Exhibits A through F, as required by 28 U.S.C. § 1446(a). Exhibit F contains
`
`copies of the state court’s orders.
`
`DIVERSITY JURISDICTION
`
`8.
`
`This Court has original jurisdiction over this action pursuant to 28 U.S.C. § 1332,
`
`which grants the U.S. District Courts original jurisdiction over “all civil actions where the matter
`
`in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
`
`between . . . citizens of different States . . . .”). This action satisfies all Section 1332(a)
`
`requirements.
`
`Diversity of Citizenship
`
`Plaintiffs are citizens of Pennsylvania.
`
`9.
`
`Plaintiffs Armslist LLC and Torquelist LLC allege that they are Pennsylvania
`
`limited liability companies, and the individual Plaintiffs allege that they are citizens of
`
`Pennsylvania. Exhibit E, ¶¶ 1-4.
`
`
`
`Defendants are citizens of Delaware and California.
`
`10.
`
`Defendant Facebook is a Delaware corporation, with a principal place of business
`
`in Menlo Park, CA. Id. at ¶ 5. Facebook is therefore a citizen of Delaware and California for the
`
`purposes of diversity jurisdiction. See 28 U.S.C. § 1332(c)(1) (“a corporation shall be deemed to
`
`be a citizen of every State and foreign state by which it has been incorporated and of the State or
`
`foreign state where it has its principal place of business.”).
`
`11.
`
`Defendant Instagram is a Delaware limited liability company, with a principal
`
`place of business in Menlo Park, CA. Exhibit E, ¶ 6. Instagram is therefore a citizen of Delaware
`
`and California for the purposes of diversity jurisdiction. See 28 U.S.C. § 1332(c)(1).
`
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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 4 of 11
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`12.
`
`Neither Defendant is a citizen of Pennsylvania. See 28 U.S.C. § 1441(b)(2)
`
`(prohibiting removal under 28 U.S.C. 1332(b) where any of the defendants in the action are
`
`citizens of the State in which the action is brought.)
`
`13.
`
`Accordingly, diversity of citizenship exists between the parties.
`
`
`
`The Amount in Controversy Exceeds $75,000, Exclusive of Interest and Costs.
`
`14.
`
`The amount in controversy in this civil action exceeds the sum or value of
`
`$75,000, exclusive of interest and costs.
`
`15.
`
`Count I of the SAC seeks equitable relief in the form of declaratory and injunctive
`
`relief only. Exhibit E, ¶¶ 179-209 and 241-253.
`
`16.
`
`Counts II, III and IV, Plaintiffs’ Breach of Contract Claims, demand “[d]amages
`
`not to exceed $74,999.99.”3 Exhibit E, ¶¶ 254, 274, 294.
`
`17.
`
`Taking the relief sought by Plaintiffs for all the claims in the SAC into account,
`
`the amount in controversy exceeds $75,000.00, satisfying the statutory requirement of 28 U.S.C.
`
`§ 1332(a).
`
`18.
`
`Plaintiffs’ SAC includes stipulations and verifications that their damages for the
`
`Breach of Contract Claims do not exceed $74,999.99.
`
`19.
`
`As explained more fully below, Plaintiffs’ claim for equitable relief has value that
`
`far exceeds the two-cent difference between the stipulated damages of $74,999.99 and the
`
`jurisdictional requirement that the amount in controversy exceed $75,000.00.
`
`Plaintiffs’ Request for Equitable Relief in Count One Has a Monetary
`Value of More Than Two Cents.
`
`
`3 In acknowledging that Plaintiffs’ SAC pleads facts establishing this Court’s subject matter
`jurisdiction under 28 U.S.C. § 1332, Defendants in no way concede that Plaintiffs are entitled to
`damages, a declaratory judgment, injunctive relief, attorneys’ fees, costs, or any other relief
`whatsoever.
`
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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 5 of 11
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`20. When determining the amount in controversy, the “Court’s task is to examine not
`
`just the dollar figure offered by the plaintiff but also her actual legal claims.” Morgan v. Gay,
`
`471 F.3d 469, 475 (3d Cir. 2006).
`
`21.
`
`Also, the court determines the amount in controversy from the complaint itself.
`
`See Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir. 1993), citing, Horton v. Liberty Mutual Ins.
`
`Co., 367 U.S. 348, 353, 81 S. Ct. 1570, 1573, 6 L.Ed.2d 890 (1961); and see also Samuel-Bassett
`
`v. Kia Motors, 357 F.3d 392, 398-99 (3d Cir. 2004) (“When the amount in controversy is not
`
`specified in the complaint, the court must assess the claims and attempt to translate those claims
`
`into monetary sums.”).
`
`22.
`
`The Third Circuit recognizes that equitable claims have monetary value that are to
`
`be considered when determining the amount in controversy. For instance, in Spock v. David the
`
`Third Circuit held that rights of free speech and free assembly have value, can be considered in
`
`deciding whether a claim for equitable relief meets the required jurisdictional amount, and are
`
`sufficiently capable of meeting the jurisdictional amount. Spock v. David, 469 F.2d 1047, 1052
`
`(3d Cir. 1972).4 “Free speech is almost by definition, worth more than $10,000.” Spock, 469
`
`F.2d at 1052.
`
`Plaintiffs’ Allegations Demonstrate That Their Equity Claims in Count One
`Have Value in Excess of One Cent.
`
`23.
`
`Here, Plaintiffs specifically allege that Armslist’s website sells advertisements
`
`and premium memberships. Id. at ¶ 33 (“Armslist makes money by selling advertisements on its
`
`
`4 The statute at issue in Spock v. David was 28 U.S.C. § 1331, which had a $10,000 amount in
`controversy requirement in 1972. Spock, 469 F.2d at 1050. The court’s reasoning for finding the
`amount in controversy satisfied the court’s original jurisdiction requirements under Section 1331
`apply equally to Section 1332’s amount in controversy requirements.
`
`- 5 -
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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 6 of 11
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`website. In addition, Armslist sells premium membership designations for users and businesses
`
`that frequently use the site. . . .”).
`
`24.
`
`Armslist, Mr. Gibbon, and Mr. Varney began using Facebook in 2007 and
`
`Instagram in 2012-2013 to communicate with friends, family, and potential users of Armslist.”
`
`Id. at ¶ 57, 108.
`
`25.
`
`Similarly, Mr. Gibbon and Torquelist started using Facebook and Instagram
`
`around 2013 to communicate with potential users of Torquelist’s services. Id. at 67, 118.
`
`26.
`
`Plaintiffs also allege that by removing their Facebook and Instagram accounts,
`
`Defendants are precluding all of them from exercising their rights of freedom of expression and
`
`by implication reaching potential users of their websites. See e.g. Exhibit E, at Count I, ¶ 187
`
`(“This censorship and ban [from Facebook and Instagram] violate Art. 1, § 7 of Pennsylvania’s
`
`Constitution’s guarantee that and [sic] every citizen may freely speak, write and print on any
`
`subject, being responsible for the abuse of that liberty.”).
`
`27.
`
`Among the equitable relief sought, Plaintiffs request that Facebook and Instagram
`
`be permanently enjoined from locking their accounts and precluding them from participating in
`
`the national debate on firearms and automotive policy on Facebook and Instagram. Id. at ¶¶ 241-
`
`253.
`
`28.
`
`In sum, Plaintiffs seek to regain their use of Facebook and Instagram to exercise
`
`their freedom of speech and to drive users to their websites. According to Spock and their own
`
`pleading, this equitable relief has a monetary value in addition to Plaintiffs’ Breach of Contract
`
`Claims at Counts Two through Four.
`
`29.
`
`Further, it is reasonable to conclude that Plaintiffs’ claims for equitable relief in
`
`Count One have value of at least $10,000 as found by the Spock court and greater than the two-
`
`- 6 -
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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 7 of 11
`
`cent difference between the amount stipulated by Plaintiffs for their Breach of Contract Claims
`
`and the statutory requirement.
`
`30.
`
`Accordingly, the value of Plaintiffs’ equity claims in Count One places the
`
`amount in controversy above $75,000 in this matter. See also Samuel-Bassett, 357 F.3d at 146
`
`(explaining that the amount in controversy is not measured by the low end of an open-ended
`
`claim, but rather by a reasonable reading of the value of the rights being litigated).
`
`Plaintiffs’ Attempts to Stipulate That the Amount in Controversy Is No
`Greater Than $74,999.99 Does Not Bar Removal
`
`Plaintiffs have attached unilateral stipulations to their SAC attempting to limit the
`
`31.
`
`amount in controversy in this matter to no greater than $74,999.99—the amount of their damages
`
`demand for their Breach of Contract Claims. However, the stipulations fail to include Plaintiffs’
`
`claims for equitable relief in Count One. Therefore, the stipulations do not bar removal.
`
`32.
`
`Courts have recognized that stipulations seeking to limit the amount in
`
`controversy may be considered, but they are not dispositive and do not preclude removal. See
`
`McCoy v. Erie Ins. Co., 147 F. Supp. 2d 481, 486 (S.D. W. Va. 2001) (acknowledging in dicta
`
`that pre-removal stipulations, rather than post-removal stipulations, may be an important
`
`consideration but that they do not preclude removal).
`
`33. Moreover, when stipulating to an amount in controversy, plaintiffs must specify if
`
`the agreed upon cap includes equitable relief, as well as damages, where both are alleged as they
`
`are here. See Rabel v. Huntington Nat’l Bank, Civ. Action No. 2:14-cv-25818, 2015 WL
`
`3540660, *5-7 (S.D. W. Va. 2015) (holding that the amount in controversy exceeded $75,000
`
`despite plaintiff stipulating to not seeking or accepting an amount greater than $75,000 where the
`
`stipulation did not specify whether it encompassed both damages and equitable relief).
`
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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 8 of 11
`
`34.
`
`Like Rabel, Plaintiffs’ stipulation does not limit the amount in controversy
`
`because it does not specify whether it encompasses both Plaintiffs’ damages and equitable relief
`
`and therefore, only limits Plaintiffs’ referenced damages recovery. See stipulations attached to
`
`Exhibit E (“Plaintiffs swear and stipulate the amount of controversy in this case . . . is no greater
`
`than $74,999.99, plus interest and costs, regardless of the amount of any judgment and/or verdict
`
`that might be returned in Plaintiffs’ favor. . . .”).
`
`35.
`
`“Absent an explicit statement that the Stipulation also encompasses equitable
`
`relief, the Stipulation only operates to limit Plaintiff[s’] potential damages recovery.” Rabel,
`
`2015 WL 35400660, *7. Because Plaintiffs’ equitable claims also have value of greater than one
`
`cent, Plaintiffs’ Stipulations do not preclude removal.
`
`36.
`
`Accordingly, the amount in controversy alleged in Plaintiffs’ SAC for breach of
`
`contract damages not exceeding the sum or value of $74,999.99, plus Plaintiffs’ equitable relief
`
`claim in Count One satisfy the amount in controversy requirement in 28 U.S.C. § 1332(a).
`
`NO NEED FOR CONSENT TO REMOVAL
`
`37.
`
`Consent to removal is not required of any other defendants. See 28 U.S.C. §
`
`1446(b)(2)(A).
`
`TIMELINESS
`
`38.
`
`This notice of removal is being filed within 30 days of December 2, 2021, the
`
`date on which Defendants were served with Plaintiffs’ SAC adding the Breach of Contract
`
`Claims for the first time. See 28 U.S.C. § 1446(b)(3) (“. . . if the case stated by the initial
`
`pleading is not removable, a notice of removal may be filed within 30 days after receipt by the
`
`defendant, through service or otherwise, of a copy of an amended pleading . . . from which it
`
`may first be ascertained that the case is one which is or has become removable.”).
`
`- 8 -
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`101154892.1
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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 9 of 11
`
`VENUE FOR REMOVAL
`
`39.
`
`Because this action is brought in the Court of Common Pleas of Westmoreland
`
`County, Pennsylvania, venue for purposes of removal is proper in this Court under 28 U.S.C. §
`
`118(c) as this District embraces Westmoreland County, Pennsylvania, the place where the
`
`removed action has been pending. See 28 U.S.C. §§ 1441(a) and 1446(a).5
`
`NOTICE OF FILING OF NOTICE OF REMOVAL
`
`40.
`
`In accordance with 28 U.S.C. § 1446(d), Defendants will promptly provide
`
`written notice to counsel of record for Plaintiffs and will promptly file a copy of this Notice of
`
`Removal with the Court of Common Pleas of Westmoreland County, Pennsylvania.
`
`CONCLUSION
`
`41.
`
`Based upon the foregoing, all requirements for diversity and removal jurisdiction
`
`have been met.
`
`WHEREFORE, Defendants Facebook and Instagram remove this action to this Court for
`
`all future proceedings.
`
`
`
`
`
`
`Respectfully submitted,
`
`ECKERT SEAMANS CHERIN & MELLOTT, LLC
`
`/s/ Audrey K. Kwak
`Jack B. Cobetto
`Pa ID No. 53444
`Audrey K. Kwak
`Pa ID No. 200527
`Carolyn O. Boucek
`Pa. ID No. 324410
`
`U.S. Steel Tower
`600 Grant Street, 44th Floor
`
`
`
`
`5 However, as noted above (n.2 supra), this Notice should not be construed as a waiver of a
`defense of improper venue.
`
`- 9 -
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`101154892.1
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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 10 of 11
`
`Pittsburgh, PA 15219
`Telephone: (412) 566-6000
`jcobetto@eckertseamans.com
`akwak@eckertseamans.com
`cboucek@eckertseamans.com
`
`
`ORRICK HERRINGTON & SUTCLIFFE LLP
`
`Kelly A. Williams
`Pa. ID. No. 74872
`2121 Main Street
`Wheeling, WV 26003-2809
`304-238-2902
`kelly.williams@orrick.com
`
`Counsel for Defendants Facebook, Inc. and
`Instagram, Inc.
`
`Dated: December 30, 2021
`
`
`
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`- 10 -
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`101154892.1
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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 11 of 11
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on December 30, 2021, I served a true and correct copy of the
`
`foregoing Notice of Removal was served upon the following counsel of record by electronic mail
`
`and U.S. first-class mail, postage pre-paid:
`
`
`
`
`
`
`
`Charles A. Hayes
`cahayes@wegmanlaw.com
`Christopher A. Holecek
`CAHolecek@wegmanlaw.com
`Jay R. Carson
`JRCarson@wegmanlaw.com
`Wegman Hessler
`6055 Rockside Woods Blvd., Ste. 200
`Cleveland, Ohio 44131
`
`
`/s/ Audrey K. Kwak
`Jack B. Cobetto
`Audrey K. Kwak
`Carolyn O. Boucek
`
`ECKERT SEAMANS CHERIN & MELLOTT, LLC
`U.S. Steel Tower
`600 Grant Street, 44th Floor
`Pittsburgh, PA 15219
`Telephone: (412) 566-6000
`jcobetto@eckertseamans.com
`akwak@eckertseamans.com
`cboucek@eckertseamans.com
`
`Kelly A. Williams
`
`ORRICK HERRINGTON & SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003-2809
`304-238-2902
`kelly.williams@orrick.com
`
`Counsel for Defendants Facebook, Inc. and
`Instagram, Inc.
`
`
`
`
`101154892.1
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`

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