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
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`ARMSLIST LLC, TORQUELIST LLC,
`JONATHAN GIBBON, and N. ANDREW
`VARNEY, III,
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`Civil Action No. ______________
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`Plaintiff,
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`v.
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`FACEBOOK, INC., and INSTAGRAM, LLC,
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`Defendants.
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`Electronically filed
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`NOTICE OF REMOVAL
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`Defendants Facebook, Inc.1 (“Facebook”) and Instagram, LLC (“Instagram”)
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`(collectively “Defendants”), by and through their undersigned counsel and pursuant to 28
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`U.S.C. §§ 1332(a), 1441 and 1446, file this Notice of Removal of Case No. 21C103063, which
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`was pending in the Court of Common Pleas of Westmoreland County, Pennsylvania.2 In
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`support of their Notice of Removal, Defendants state as follows:
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`INTRODUCTION AND BACKGROUND
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`1.
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`On or about August 11, 2021, Plaintiffs Armslist LLC, Torquelist LLC, Jonathan
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`Gibbon, and N. Andrew Varney, III (“Plaintiffs”) filed a “Complaint for Declaratory and
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`Injunctive Relief” in the Court of Common Pleas of Westmoreland County, Pennsylvania, styled
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`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.
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`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.
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`and Instagram, LLC., Case No. 21CI03063. The Complaint did not contain a demand for
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`damages. Exhibit A, Compl., ¶ 1, and pp. 34-40.
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`2.
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`On September 1, 2021, Plaintiffs filed a Petition to File Amended and
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`Supplemental Complaint. Like the original Complaint, the Amended and Supplemental
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`Complaint sought declaratory judgment and injunctive relief only. Exhibit B, Am. & Suppl.
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`Compl. ¶ 7, and pp. 37-43.
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`3.
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`Plaintiffs served the Complaint and Amended and Supplemental Complaint upon
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`Instagram on September 15, 2021, and upon Facebook on September 29, 2021. Exhibit C,
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`Affidavit of Service upon Defendants, Instagram, LLC and Facebook, Inc.
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`4.
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`Defendants filed preliminary objections to the Amended and Supplemental
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`Complaint on November 12, 2021. Exhibit D, Defendants’ Preliminary Objections to Plaintiffs’
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`Complaint, pp. 3-5.
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`5.
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`In response to Defendants’ preliminary objections, Plaintiffs filed and served a
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`Second Amended and Supplemental Complaint on December 2, 2021 (“SAC”). Exhibit E,
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`Second Am. & Suppl. Compl. The SAC added a count for breach of contract (Count Two), and
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`in the alternative, unjust enrichment (Count Three) and promissory estoppel (Count Four). Id. at
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`pp. 45, 49, 52, 53. Counts Two, Three and Four will be collectively referred to herein as
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`Plaintiffs’ “Breach of Contract Claims.”
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`6.
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`Further, Plaintiffs’ SAC added a request for damages “not to exceed $74,999.99,”
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`at Counts Two through Four. Id. at ¶ 254, 274, 294.
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`7.
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`Copies of “all process, pleadings, and orders served upon [] defendant” are
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`attached hereto as Exhibits A through F, as required by 28 U.S.C. § 1446(a). Exhibit F contains
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`copies of the state court’s orders.
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`DIVERSITY JURISDICTION
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`8.
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`This Court has original jurisdiction over this action pursuant to 28 U.S.C. § 1332,
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`which grants the U.S. District Courts original jurisdiction over “all civil actions where the matter
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`in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
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`between . . . citizens of different States . . . .”). This action satisfies all Section 1332(a)
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`requirements.
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`Diversity of Citizenship
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`Plaintiffs are citizens of Pennsylvania.
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`9.
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`Plaintiffs Armslist LLC and Torquelist LLC allege that they are Pennsylvania
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`limited liability companies, and the individual Plaintiffs allege that they are citizens of
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`Pennsylvania. Exhibit E, ¶¶ 1-4.
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`Defendants are citizens of Delaware and California.
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`10.
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`Defendant Facebook is a Delaware corporation, with a principal place of business
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`in Menlo Park, CA. Id. at ¶ 5. Facebook is therefore a citizen of Delaware and California for the
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`purposes of diversity jurisdiction. See 28 U.S.C. § 1332(c)(1) (“a corporation shall be deemed to
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`be a citizen of every State and foreign state by which it has been incorporated and of the State or
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`foreign state where it has its principal place of business.”).
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`11.
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`Defendant Instagram is a Delaware limited liability company, with a principal
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`place of business in Menlo Park, CA. Exhibit E, ¶ 6. Instagram is therefore a citizen of Delaware
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`and California for the purposes of diversity jurisdiction. See 28 U.S.C. § 1332(c)(1).
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`12.
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`Neither Defendant is a citizen of Pennsylvania. See 28 U.S.C. § 1441(b)(2)
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`(prohibiting removal under 28 U.S.C. 1332(b) where any of the defendants in the action are
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`citizens of the State in which the action is brought.)
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`13.
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`Accordingly, diversity of citizenship exists between the parties.
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`The Amount in Controversy Exceeds $75,000, Exclusive of Interest and Costs.
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`14.
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`The amount in controversy in this civil action exceeds the sum or value of
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`$75,000, exclusive of interest and costs.
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`15.
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`Count I of the SAC seeks equitable relief in the form of declaratory and injunctive
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`relief only. Exhibit E, ¶¶ 179-209 and 241-253.
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`16.
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`Counts II, III and IV, Plaintiffs’ Breach of Contract Claims, demand “[d]amages
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`not to exceed $74,999.99.”3 Exhibit E, ¶¶ 254, 274, 294.
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`17.
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`Taking the relief sought by Plaintiffs for all the claims in the SAC into account,
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`the amount in controversy exceeds $75,000.00, satisfying the statutory requirement of 28 U.S.C.
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`§ 1332(a).
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`18.
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`Plaintiffs’ SAC includes stipulations and verifications that their damages for the
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`Breach of Contract Claims do not exceed $74,999.99.
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`19.
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`As explained more fully below, Plaintiffs’ claim for equitable relief has value that
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`far exceeds the two-cent difference between the stipulated damages of $74,999.99 and the
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`jurisdictional requirement that the amount in controversy exceed $75,000.00.
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`Plaintiffs’ Request for Equitable Relief in Count One Has a Monetary
`Value of More Than Two Cents.
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`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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`20. When determining the amount in controversy, the “Court’s task is to examine not
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`just the dollar figure offered by the plaintiff but also her actual legal claims.” Morgan v. Gay,
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`471 F.3d 469, 475 (3d Cir. 2006).
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`21.
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`Also, the court determines the amount in controversy from the complaint itself.
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`See Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir. 1993), citing, Horton v. Liberty Mutual Ins.
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`Co., 367 U.S. 348, 353, 81 S. Ct. 1570, 1573, 6 L.Ed.2d 890 (1961); and see also Samuel-Bassett
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`v. Kia Motors, 357 F.3d 392, 398-99 (3d Cir. 2004) (“When the amount in controversy is not
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`specified in the complaint, the court must assess the claims and attempt to translate those claims
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`into monetary sums.”).
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`22.
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`The Third Circuit recognizes that equitable claims have monetary value that are to
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`be considered when determining the amount in controversy. For instance, in Spock v. David the
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`Third Circuit held that rights of free speech and free assembly have value, can be considered in
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`deciding whether a claim for equitable relief meets the required jurisdictional amount, and are
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`sufficiently capable of meeting the jurisdictional amount. Spock v. David, 469 F.2d 1047, 1052
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`(3d Cir. 1972).4 “Free speech is almost by definition, worth more than $10,000.” Spock, 469
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`F.2d at 1052.
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`Plaintiffs’ Allegations Demonstrate That Their Equity Claims in Count One
`Have Value in Excess of One Cent.
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`23.
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`Here, Plaintiffs specifically allege that Armslist’s website sells advertisements
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`and premium memberships. Id. at ¶ 33 (“Armslist makes money by selling advertisements on its
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`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.
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`website. In addition, Armslist sells premium membership designations for users and businesses
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`that frequently use the site. . . .”).
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`24.
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`Armslist, Mr. Gibbon, and Mr. Varney began using Facebook in 2007 and
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`Instagram in 2012-2013 to communicate with friends, family, and potential users of Armslist.”
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`Id. at ¶ 57, 108.
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`25.
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`Similarly, Mr. Gibbon and Torquelist started using Facebook and Instagram
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`around 2013 to communicate with potential users of Torquelist’s services. Id. at 67, 118.
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`26.
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`Plaintiffs also allege that by removing their Facebook and Instagram accounts,
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`Defendants are precluding all of them from exercising their rights of freedom of expression and
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`by implication reaching potential users of their websites. See e.g. Exhibit E, at Count I, ¶ 187
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`(“This censorship and ban [from Facebook and Instagram] violate Art. 1, § 7 of Pennsylvania’s
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`Constitution’s guarantee that and [sic] every citizen may freely speak, write and print on any
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`subject, being responsible for the abuse of that liberty.”).
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`27.
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`Among the equitable relief sought, Plaintiffs request that Facebook and Instagram
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`be permanently enjoined from locking their accounts and precluding them from participating in
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`the national debate on firearms and automotive policy on Facebook and Instagram. Id. at ¶¶ 241-
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`253.
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`28.
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`In sum, Plaintiffs seek to regain their use of Facebook and Instagram to exercise
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`their freedom of speech and to drive users to their websites. According to Spock and their own
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`pleading, this equitable relief has a monetary value in addition to Plaintiffs’ Breach of Contract
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`Claims at Counts Two through Four.
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`29.
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`Further, it is reasonable to conclude that Plaintiffs’ claims for equitable relief in
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`Count One have value of at least $10,000 as found by the Spock court and greater than the two-
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`cent difference between the amount stipulated by Plaintiffs for their Breach of Contract Claims
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`and the statutory requirement.
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`30.
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`Accordingly, the value of Plaintiffs’ equity claims in Count One places the
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`amount in controversy above $75,000 in this matter. See also Samuel-Bassett, 357 F.3d at 146
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`(explaining that the amount in controversy is not measured by the low end of an open-ended
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`claim, but rather by a reasonable reading of the value of the rights being litigated).
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`Plaintiffs’ Attempts to Stipulate That the Amount in Controversy Is No
`Greater Than $74,999.99 Does Not Bar Removal
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`Plaintiffs have attached unilateral stipulations to their SAC attempting to limit the
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`31.
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`amount in controversy in this matter to no greater than $74,999.99—the amount of their damages
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`demand for their Breach of Contract Claims. However, the stipulations fail to include Plaintiffs’
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`claims for equitable relief in Count One. Therefore, the stipulations do not bar removal.
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`32.
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`Courts have recognized that stipulations seeking to limit the amount in
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`controversy may be considered, but they are not dispositive and do not preclude removal. See
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`McCoy v. Erie Ins. Co., 147 F. Supp. 2d 481, 486 (S.D. W. Va. 2001) (acknowledging in dicta
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`that pre-removal stipulations, rather than post-removal stipulations, may be an important
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`consideration but that they do not preclude removal).
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`33. Moreover, when stipulating to an amount in controversy, plaintiffs must specify if
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`the agreed upon cap includes equitable relief, as well as damages, where both are alleged as they
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`are here. See Rabel v. Huntington Nat’l Bank, Civ. Action No. 2:14-cv-25818, 2015 WL
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`3540660, *5-7 (S.D. W. Va. 2015) (holding that the amount in controversy exceeded $75,000
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`despite plaintiff stipulating to not seeking or accepting an amount greater than $75,000 where the
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`stipulation did not specify whether it encompassed both damages and equitable relief).
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`34.
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`Like Rabel, Plaintiffs’ stipulation does not limit the amount in controversy
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`because it does not specify whether it encompasses both Plaintiffs’ damages and equitable relief
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`and therefore, only limits Plaintiffs’ referenced damages recovery. See stipulations attached to
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`Exhibit E (“Plaintiffs swear and stipulate the amount of controversy in this case . . . is no greater
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`than $74,999.99, plus interest and costs, regardless of the amount of any judgment and/or verdict
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`that might be returned in Plaintiffs’ favor. . . .”).
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`35.
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`“Absent an explicit statement that the Stipulation also encompasses equitable
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`relief, the Stipulation only operates to limit Plaintiff[s’] potential damages recovery.” Rabel,
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`2015 WL 35400660, *7. Because Plaintiffs’ equitable claims also have value of greater than one
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`cent, Plaintiffs’ Stipulations do not preclude removal.
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`36.
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`Accordingly, the amount in controversy alleged in Plaintiffs’ SAC for breach of
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`contract damages not exceeding the sum or value of $74,999.99, plus Plaintiffs’ equitable relief
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`claim in Count One satisfy the amount in controversy requirement in 28 U.S.C. § 1332(a).
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`NO NEED FOR CONSENT TO REMOVAL
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`37.
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`Consent to removal is not required of any other defendants. See 28 U.S.C. §
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`1446(b)(2)(A).
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`TIMELINESS
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`38.
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`This notice of removal is being filed within 30 days of December 2, 2021, the
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`date on which Defendants were served with Plaintiffs’ SAC adding the Breach of Contract
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`Claims for the first time. See 28 U.S.C. § 1446(b)(3) (“. . . if the case stated by the initial
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`pleading is not removable, a notice of removal may be filed within 30 days after receipt by the
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`defendant, through service or otherwise, of a copy of an amended pleading . . . from which it
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`may first be ascertained that the case is one which is or has become removable.”).
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`VENUE FOR REMOVAL
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`39.
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`Because this action is brought in the Court of Common Pleas of Westmoreland
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`County, Pennsylvania, venue for purposes of removal is proper in this Court under 28 U.S.C. §
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`118(c) as this District embraces Westmoreland County, Pennsylvania, the place where the
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`removed action has been pending. See 28 U.S.C. §§ 1441(a) and 1446(a).5
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`NOTICE OF FILING OF NOTICE OF REMOVAL
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`40.
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`In accordance with 28 U.S.C. § 1446(d), Defendants will promptly provide
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`written notice to counsel of record for Plaintiffs and will promptly file a copy of this Notice of
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`Removal with the Court of Common Pleas of Westmoreland County, Pennsylvania.
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`CONCLUSION
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`41.
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`Based upon the foregoing, all requirements for diversity and removal jurisdiction
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`have been met.
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`WHEREFORE, Defendants Facebook and Instagram remove this action to this Court for
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`all future proceedings.
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`Respectfully submitted,
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`ECKERT SEAMANS CHERIN & MELLOTT, LLC
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`/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
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`U.S. Steel Tower
`600 Grant Street, 44th Floor
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`
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`5 However, as noted above (n.2 supra), this Notice should not be construed as a waiver of a
`defense of improper venue.
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`Case 2:21-cv-01917-WSH Document 1 Filed 12/30/21 Page 10 of 11
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`Pittsburgh, PA 15219
`Telephone: (412) 566-6000
`jcobetto@eckertseamans.com
`akwak@eckertseamans.com
`cboucek@eckertseamans.com
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`
`ORRICK HERRINGTON & SUTCLIFFE LLP
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`Kelly A. Williams
`Pa. ID. No. 74872
`2121 Main Street
`Wheeling, WV 26003-2809
`304-238-2902
`kelly.williams@orrick.com
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`Counsel for Defendants Facebook, Inc. and
`Instagram, Inc.
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`Dated: December 30, 2021
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 30, 2021, I served a true and correct copy of the
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`foregoing Notice of Removal was served upon the following counsel of record by electronic mail
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`and U.S. first-class mail, postage pre-paid:
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`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
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`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
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`Kelly A. Williams
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`ORRICK HERRINGTON & SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003-2809
`304-238-2902
`kelly.williams@orrick.com
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`Counsel for Defendants Facebook, Inc. and
`Instagram, Inc.
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