private label nutraceuticals, llc v. hangover joe's holding corporation et al doc 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

PRIVATE LABEL ) NEUTRACEUTICALS, LLC, ) ) Plaintiff, ) ) CIVIL ACTION NO: v. ) ______________________________ ) HANGOVER JOES HOLDING ) CORPORATION and ) HANGOVER JOES, INC., ) ) Defendants. ) ______________________________ )

NOTICE OF REMOVAL Defendants Hangover Joes Holding Corporation and Hangover Joes, Inc.

(Defendants) provide this notice that they have removed the action captioned

Private Label Neutraceuticals, LLC v. Hangover Joes Holding Corporation, et al.,

previously pending in the State Court of Gwinnett County, Georgia, Civil Action

No. 14-C-00658-6 (the Action), to the United States District Court for the

Northern District of Georgia, Atlanta Division, pursuant to 28 U.S.C. 1332,

1441, and 1446. The grounds for removal are set forth in more detail below.

Case 1:14-cv-00683-ODE Document 1 Filed 03/07/14 Page 1 of 8

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Jurisdiction

1. This Court has original jurisdiction over this Action on the basis of

diversity because it is a civil action between citizens of different states and the

matter in controversy exceeds the sum of Seventy-Five Thousand Dollars

($75,000), exclusive of interest and costs. 28 U.S.C. 1332.

Intradistrict Assignment

2. Plaintiff filed this case in the State Court of Gwinnett County,

Georgia. Therefore, this case may properly be removed to the Atlanta Division of

the Northern District of Georgia. 28 U.S.C. 1441(a).

Compliance with Statutory Requirements

3. On or about February 7, 2014, Plaintiff Private Label Neutraceuticals,

LLC (Plaintiff) commenced this Action by filing a Complaint. In its Complaint,

Plaintiff seeks: (1) damages for Defendants alleged failure to pay for goods and

services; and (2) litigation fees and expenses for alleged bad faith under O.C.G.A.

13-6-11. Defendants will be filing counterclaims for the significant financial

losses Plaintiffs unlawful activities caused to its business and its shareholders.

4. Defendants were served with the Complaint on February 12, 2014.

5. As required by the procedures governing removal of civil actions, true

and correct copies of the Summons and Complaint are attached to this Notice as


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Exhibit 1. 28 U.S.C. 1446(a). The documents in Exhibit 1 are all process,

pleadings, and orders served on Defendants in the Action to date.

6. Removal of the Action is timely because it is within 30 days from

when Defendants were served with the Complaint. See 28 U.S.C. 1446(b)(1).

7. As required by the procedures governing removal of civil actions,

Defendants will promptly provide written notice of removal of the Action to

Plaintiff through its counsel of record and will promptly file a copy of this Notice

of Removal with the State Court of Gwinnett County, Georgia, the court in which

the Action was originally filed. 28 U.S.C. 1446(d).

Diversity of Citizenship

8. The parties to this Action are citizens of different states and were

citizens of different states at the time the Action was commenced.

9. Plaintiff has been a corporate citizen of the State of Georgia since

before the filing of the Action.1 (See Exhibit 1, Complaint 1.)

10. Defendants have been corporate citizens of the State of Colorado

since before the filing of the Action. (See id. 2.)

1 For diversity purposes, a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business. 28 U.S.C. 1332(c).


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Amount in Controversy

11. The amount in controversy, exclusive of interest and costs, exceeds

the sum of $75,000 as required by 28 U.S.C. 1332(a). (See id. 6, 9, Prayer for

Relief, at 3.)

12. Specifically, Plaintiff seeks $63,201.88 in unpaid invoices, along with

statutory interest and costs. (Id. 6.)

13. Plaintiff also seeks attorneys fees and expenses, claiming bad faith

litigation pursuant to O.C.G.A. 13-6-11. Such a claim counts towards calculating

the amount in controversy for diversity purposes. See, e.g., Morrison v. Allstate

Indem. Co., 228 F.3d 1255, 1265 (11th Cir. 2000) (When a statute authorizes the

recovery of attorneys fees, a reasonable amount of those fees is included in the

amount in controversy.); Byars v. Hartford Cas. Ins. Co., 2009 U.S. Dist. LEXIS

87276, 3, 2009 WL 3077128 (M.D. Ga. Sept. 23, 2009);Townsend v. Monumental

Life Ins. Co., 2007 U.S. Dist. LEXIS 38011, 10 (N.D. Ga. May 7, 2007).

14. To meet the jurisdictionally required amount together with the alleged

damages for unpaid obligations ($63,201.88), Plaintiffs reasonable attorneys fees

must therefore exceed $11,798.12 as determined under a preponderance of the

evidence standard. See Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.

2001) (where the plaintiff has not pled a specific amount of damages, the


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removing defendant must prove by a preponderance of the evidence that the

amount in controversy exceeds the jurisdictional requirement). Defendants meet

their burden to establish the elements of diversity jurisdiction because a removing

defendant is not required to prove the amount in controversy beyond all doubt or to

banish all uncertainty about it. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,

754 (11th Cir. 2010). The law does not demand perfect knowledge or depend any

less on reasonable inferences and deductions than we all do in everyday life. Id.

15. As fully described in the declaration attached as Exhibit 2, based on

the experience of the lead counsel for Defendants, Plaintiffs reasonable attorneys

fees have amounted to more than $11,798.12 as of the date of removal, particularly

since this dispute has been ongoing for over a year and has involved hundreds of

communications between the parties. (See Exhibit 2, Declaration of Theresia

Moser.) The minimum range of attorneys fees charged to Plaintiff to date in this

matter would be $12,600-$20,700. (Id.)

16. Because the minimum amount of attorneys fees Plaintiff has incurred

to date in this matter exceeds $11,798.12, the amount in controversy requirement

has been met. When combined with the parties corporate citizenship, this Court

has jurisdiction over this Action on the basis of diversity. 28 U.S.C. 1332.


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17. In addition, to the extent the Court considers damages stemming from

the compulsory counterclaims Defendants will assert in the responsive pleading

that will be filed within the time permitted by Rule 81(c) of the Federal Rules of

Civil Procedure, the amount in controversy will exceed $1,000,000 due to the

significant losses Defendants have sustained as a result Plaintiffs fraudulent

business practices and failure to perform its obligations to Defendants.

Accordingly, Defendants remove the Action to this Court from the State

Court of Gwinnett County, Georgia.

Respectfully submitted,

/s/ Theresia M. Moser Theresia M. Moser

Georgia Bar No. 526514 Elizabeth Bulat Turner

Georgia Bar No. 558428 Meyer Moser Lang LLP Southern Dairies Building 621 North Avenue, N.E. Suite C-150 Atlanta, Georgia 30308 (404) 537-5330 phone (404) 537-5340 facsimile [email protected] [email protected]

Attorneys for Defendants


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

PRIVATE LABEL ) NEUTRACEUTICALS, LLC, ) ) Plaintiff, ) ) CIVIL ACTION NO: v. ) ______________________________ ) HANGOVER JOES HOLDING ) CORPORATION and ) HANGOVER JOES, INC., ) ) Defendants. ) ______________________________ )

CERTIFICATE OF SERVICE

I certify that I caused to be served this NOTICE OF REMOVAL via U.S.

Mail to the following counsel of record:

David Allen Roberts Jonathan D. Letzring Hall, Arbery, Gilligan, Roberts & Shanlever LLP 3340 Peachtree Road, Suite 2570 Atlanta, Georgia 30326

This 7th day of March, 2014.

[Signature on Following Page.]


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/s/ Theresia M. Moser Theresia M. Moser

Georgia Bar No. 526514 Elizabeth Bulat Turner

Georgia Bar No. 558428 Meyer Moser Lang LLP Southern Dairies Building 621 North Avenue, N.E. Suite C-150 Atlanta, Georgia 30308 (404) 537-5330 phone (404) 537-5340 facsimile [email protected] [email protected]

Attorneys for Defendant


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