Case 7:21-cv-00290-EKD Document 1 Filed 05/12/21 Page 1 of 5 Pageid#: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF VIRGINIA
`ROANOKE DIVISION
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`7:21cv290
`No. ________________
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`)))))))))))))))
`
`DR. MARK E. VAN DYKE,
`
`Plaintiff,
`
`v.
`
`WAKE FOREST UNIVERSITY
`HEALTH SCIENCES; KERANETICS,
`INC.; VIRTUE LABS, LLC; LUKE
`BURNETT; KIM WESTMORELAND; and
`CHARLES W. “TODD” JOHNSON,
`
`Defendants.
`
`NOTICE OF REMOVAL
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`Defendant KeraNetics, Inc. (“KeraNetics”) hereby removes the above-captioned matter
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`under 28 U.S.C. §§ 1441 and 1446 to this Court from the Circuit Court for the County of
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`Montgomery (the “State Court”).
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`BACKGROUND
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`1.
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`Plaintiff Dr. Mark E. Van Dyke (“Plaintiff”) filed this lawsuit in the State Court
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`on or about May 15, 2020. A copy of Plaintiff’s May 2020 Complaint is attached as Exhibit A.
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`The parties to that May 2020 Complaint are the same as the parties listed above in the caption,
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`except that Plaintiff named KeraNetics, LLC—rather than KeraNetics, Inc.—as a Defendant.
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`2.
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`On or about June 22, 2020, the State Court entered an Order Allowing Amended
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`Complaint. The State Court noted in that Order that “[s]ervice on Defendants has not been
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`requested or attempted.” The Court also explained that Plaintiff “discovered that KeraNetics,
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`LLC was merged into another corporate entity and then renamed KeraNetics, Inc., which is the
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`successor-in-interest entity to the previously named KeraNetics, LLC.” In the proposed
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF VIRGINIA
`ROANOKE DIVISION
`
`7:21cv290
`No. ________________
`
`)))))))))))))))
`
`DR. MARK E. VAN DYKE,
`
`Plaintiff,
`
`v.
`
`WAKE FOREST UNIVERSITY
`HEALTH SCIENCES; KERANETICS,
`INC.; VIRTUE LABS, LLC; LUKE
`BURNETT; KIM WESTMORELAND; and
`CHARLES W. “TODD” JOHNSON,
`
`Defendants.
`
`NOTICE OF REMOVAL
`
`Defendant KeraNetics, Inc. (“KeraNetics”) hereby removes the above-captioned matter
`
`under 28 U.S.C. §§ 1441 and 1446 to this Court from the Circuit Court for the County of
`
`Montgomery (the “State Court”).
`
`BACKGROUND
`
`1.
`
`Plaintiff Dr. Mark E. Van Dyke (“Plaintiff”) filed this lawsuit in the State Court
`
`on or about May 15, 2020. A copy of Plaintiff’s May 2020 Complaint is attached as Exhibit A.
`
`The parties to that May 2020 Complaint are the same as the parties listed above in the caption,
`
`except that Plaintiff named KeraNetics, LLC—rather than KeraNetics, Inc.—as a Defendant.
`
`2.
`
`On or about June 22, 2020, the State Court entered an Order Allowing Amended
`
`Complaint. The State Court noted in that Order that “[s]ervice on Defendants has not been
`
`requested or attempted.” The Court also explained that Plaintiff “discovered that KeraNetics,
`
`LLC was merged into another corporate entity and then renamed KeraNetics, Inc., which is the
`
`successor-in-interest entity to the previously named KeraNetics, LLC.” In the proposed
`
`
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`Case 7:21-cv-00290-EKD Document 1 Filed 05/12/21 Page 2 of 5 Pageid#: 2
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`Amended Complaint, Plaintiff “named the current successor-in-interest legal entity, KeraNetics,
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`Inc., in place of the previously named KeraNetics, LLC, as Defendant.” A copy of the Order
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`Allowing Amended Complaint is attached as Exhibit B.
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`3.
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`On or about June 22, 2020, Plaintiff filed an Amended Complaint in this action.
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`A copy of Plaintiff’s Amended Complaint is attached as Exhibit C.
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`4.
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`On or about May 7, 2021, the State Court issued Summonses for KeraNetics and
`
`the other Defendants.
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`5.
`
`This Court has jurisdiction over this action under 28 U.S.C. § 1332(a). Complete
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`diversity exists between Plaintiff and Defendants, and the amount in controversy exceeds
`
`$75,000.
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`6.
`
`There is complete diversity because Plaintiff is a citizen of Arizona, and none of
`
`the Defendants is an Arizona citizen.
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`7.
`
`Plaintiff is a resident of Pima County, Arizona. Plaintiff alleges in the Amended
`
`Complaint that, as of June 22, 2020, he was “an individual residing in the County of
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`Montgomery, Virginia, who is an Associate Professor of Biomedical Engineering at Virginia
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`Polytechnic Institute and State University.” Am. Compl. ¶ 1. In August 2020, however, the
`
`University of Arizona College of Engineering, in Pima County, announced that Plaintiff is
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`“joining the college as the associate dean for research.” The University of Arizona College of
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`Engineering likewise announced on September 9, 2020, that it had “welcomed Mark Van Dyke
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`as the associate dean for research, with a joint appointment in biomedical engineering.”
`
`Plaintiff’s University of Arizona biography states under “Work Experience” that his relationship
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`with Virginia Polytechnic Institute and State University lasted “2012 – 2020,” while his
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`relationship with the University of Arizona, Tucson, Arizona began in “2020” and is “Ongoing.”
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`
`
`2
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`Case 7:21-cv-00290-EKD Document 1 Filed 05/12/21 Page 3 of 5 Pageid#: 3
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`Consistent with those announcements and that biography, Plaintiff co-purchased a residence in
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`Pima County in 2020, which residence he continues to co-own.
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`8.
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`Defendant Wake Forest University Health Sciences is (and since the filing of this
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`action has been) a non-profit corporation incorporated in North Carolina that has (and since the
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`filing of this action has had) its principal place of business in Winston-Salem, North Carolina.
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`See Am. Compl. ¶ 2.
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`9.
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`Defendant KeraNetics, Inc. is (and since the filing of this action has been)
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`incorporated in Delaware and has (and since the filing of this action has had) its principal place
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`of business in Winston-Salem, North Carolina. See Am. Compl. ¶ 3.
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`10.
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`Defendant Virtue Labs, LLC, is (and since the filing of this action has been) “a
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`Delaware limited liability company that is registered and authorized to transact business in North
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`Carolina and that has its principal place of business in Raleigh, North Carolina.” Am. Compl. ¶
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`4. On information and belief, all of Virtue Labs’ members are (and since the filing of this action
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`have been) residents of states other than Arizona; Virtue Labs has (and since the filing of this
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`action has had) no member that is an Arizona resident.
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`11.
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`Defendant Luke Burnett “is [and since the filing of this action has been] a natural
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`person, citizen and resident of North Carolina.” Am. Compl. ¶ 5.
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`12.
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`Defendant Kim Westmoreland “is [and since the filing of this action has been] a
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`natural person, citizen and resident of North Carolina.” Am. Compl. ¶ 6.
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`13.
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`Defendant Charles W. “Todd” Johnson “is [and since the filing of this action has
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`been] a natural person, citizen and resident of North Carolina.” Am. Compl. ¶ 7.
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`3
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`Case 7:21-cv-00290-EKD Document 1 Filed 05/12/21 Page 4 of 5 Pageid#: 4
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`14.
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`The Amended Complaint establishes that the amount in controversy exceeds the
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`sum or value of $75,000, exclusive of interest and costs. For example, Plaintiff demands
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`“compensatory damages . . . in an amount not less than $146,000,000.” Am. Compl. ¶ 47.
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`15.
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`Venue is proper in this Court under 28 U.S.C. § 1441(a) because the Circuit Court
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`for the County of Montgomery is located within the Western District of Virginia.
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`16.
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`Pursuant to 28 U.S.C. § 1446(d), KeraNetics will promptly give written notice of
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`this removal to all adverse parties and will file a copy of this Notice of Removal with the Circuit
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`Court for the County of Montgomery.
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`17.
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`This Notice of Removal is timely filed under 28 U.S.C. § 1446(b) because
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`KeraNetics has not yet been served with the Complaint, Amended Complaint, or Summonses.
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`Indeed, KeraNetics has no knowledge that any other Defendant has been served with the
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`Complaint, Amended Complaint, or Summonses.
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`18.
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`KeraNetics intends to file a motion under Federal Rule of Civil Procedure 12(b)
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`within the period allowed by Federal Rule of Civil Procedure 81(c)(2). Consistent with Federal
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`Rule of Civil Procedure 12(h), KeraNetics preserves all defenses, including (without limitation)
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`the defense of lack of personal jurisdiction.
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`
`
`Dated: May 12, 2021
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`
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`Respectfully submitted,
`
`
`
`/s/ Lela M. Ames
`Lela M. Ames (VSB No. 75932)
`WOMBLE BOND DICKINSON (US) LLP
`1200 Nineteenth Street, N.W., Suite 500
`Washington, DC 20036
`Telephone: 202-857-4427
`Facsimile: 202-261-0029
`Email: Lela.Ames@wbd-us.com
`
`Counsel for KeraNetics, Inc.
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`
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`4
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`Case 7:21-cv-00290-EKD Document 1 Filed 05/12/21 Page 5 of 5 Pageid#: 5
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`CERTIFICATE OF SERVICE
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`I hereby certify that I electronically filed the foregoing Notice of Removal with the Clerk
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`of Court using the CM/ECF system.
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`I hereby further certify that a copy of the foregoing Notice of Removal was served by
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`U.S. mail on the following counsel of record:
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`James R. Creekmore
`The Creekmore Law Firm PC
`318 N. Main Street
`Blacksburg VA 24060
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`Counsel for Plaintiff
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`Dated: May 12, 2021
`
`/s/ Lela M. Ames
`Lela M. Ames
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`5
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