Removal to Federal CourtCal. Super. - 6th Dist.May 14, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV382461 Santa Clara - Civil Ginger Pigott (SBN CA 162908) Richard Tabura (SBN CA 298677) GREENBERG TRAURIG, LLP 1840 Century Park East, Suite 1900 Los Angeles, California 90067-2121 Telephone: 3 1 0.586.7700 Facsimile: 3 1 0.586.7800 pigottg@gtlaw.com taburar@gtlaw.com Kate M. Wittlake (SBN CA 31 1936) GREENBERG TRAURIG, LLP 4 Embarcadero Center Suite 3000 San Francisco, California 941 11 Telephone: 415.655.1285 Facsimile: 415.655.1300 wittlakek@gtlaw.com Attorneys for Defendant ORTHOFIX INC. and SPINAL KINETICS, INC. Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/14/2021 9:15 PM Reviewed By: S. Uy Case #21 CV382461 Envelope: 7469523 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA CHRISTOPHE STANIC, Plaintiff, V. ORTHOFIX INC., SPINAL KINETICS, INC., GERMAN SPINE SPECIALISTS, MY SPINE SOLUTION, KEN HIEBERT, ONZ- ORTHOPADISCH NEUROCHIRUGISCHES ZENTUM, and DOES 1 t0 50, inclusive, Defendants. CASE NO. 2 1CV3 82461 NOTICE OF REMOVAL 1 S.l NOTICE OF REMOVAL Jy 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE SUPERIOR COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 14, 2021, Defendants Orthofix US LLC, formerly OrthofiX Inc. and Spinal Kinetics, Inc. filed a Notice 0f Removal t0 remove this action from this Court t0 the United States District Court for Northern District of California. A copy of the Notice 0f removal is attached hereto as Exhibit 1. Pursuant to 28 U.S.C. §1446(d), this Court need take n0 further action with respect to this case “unless and until this case is remanded.” DATED: October 14, 2021 GREENBERG TRAURIG, LLP By: /s/KateM Wittlake_ Ginger Pigott Richard Tabura Kate M. Wittlake Attorneys for Defendants ORTHOFIX US LLC and SPINAL KINETICS, INC. 2 NOTICE OF REMOVAL EXHIBIT 1 OOOQONUI-bUJNr-A NNNNNNNNNv-Ar-tr-v-Ar-tr-v-Ar-tr-tp-A OOQONM-mei-‘OKOOOQQUIAUJNF-‘O Case 5:21-cv-08063 Document 1 Filed 10/14/21 Page 1 of 9 Ginger Pigott (SBN CA 162908) Richard Tabura (SBN CA 298677) GREENBERG TRAURIG, LLP 1840 Century Park East, Suite 1900 Los Angeles, California 90067-2121 Telephone: 3 1 0.586.7700 Facsimile: 3 1 0.586.7800 pigottg@gtlaw.com taburar@gtlaw.com Kate M. Wittlake (SBN CA 31 1936) GREENBERG TRAURIG, LLP 4 Embarcadero Center Suite 3000 San Francisco, California 941 11 Telephone: 415.655.1285 Facsimile: 415.655.1300 wittlakek@gtlaw.com Attorneys for Defendant ORTHOFIX US LLC and SPINAL KINETICS, INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CHRISTOPHE STANIC, Plaintiff, V. ORTHOFIX INC., SPINAL KINETICS, INC., GERMAN SPINE SPECIALISTS, MY SPINE SOLUTION, KEN HIEBERT, ONZ- ORTHOPADISCH NEUROCHIRUGISCHES ZENTUM, and DOES 1 t0 50, inclusive,, Defendants. vvvvvvvvvvvvvv CASE NO. 5:2 1 -CV-8063 DEFENDANTS ORTHOFIX US LLC, FORMERLY ORTHOFIX INC., AND SPINAL KINETICS, INC.’S NOTICE OF REMOVAL 1 Case No. 5:21-cv-8063 DEFENDANTS ORTHOFIX US LLC AND SPINAL KINETICS, INC.’S NOTICE OF REMOVAL OOOQONUI-RUJNH NNNNNNNNNv-Ar-tr-v-Ar-tr-v-Ar-tr-tp-A OOQONKII-PUJNi-‘OKOOOQQUI-bUJNF-‘O Case 5:21-cv-08063 Document 1 Filed 10/14/21 Page 2 of 9 PLEASE TAKE NOTICE that, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, Defendants OrthofiX US LLC, formerly Orthofix Inc., and Spinal Kinetics, Inc. (“Removing Defendants”) remove this action, captioned Christophe Stanic v. Orthofix Ina, et al., case number 21CV3 82461, from the Superior Court 0f California in and for the County 0f Santa Clara, to the United States District Court for the Northern District of Califomia.1 This Court has jurisdiction over this action because: (1) there is complete diversity 0f citizenship between Plaintiff and Defendants; (2) although Spinal Kinetics, Inc. is a citizen of California for diversity purposes, it has not been served with this lawsuit; (3) the amount in controversy exceeds $75,000, exclusive of interest and costs; and (4) the remaining defendants have not yet been properly served, so lack 0f their affirmative consent does not bar removal. BACKGROUND 1. On May 14, 2021, Plaintiff Christophe Stanic filed his Complaint for Damages in the Superior Court of California in the County 0f Santa Clara against Removing Defendants. Plaintiff also named the following alien defendants: German Spine Specialists, My Spine Solution, Ken Hiebert, and ONZ-Orthopadisch Neurochirugisches Zentum. A true and correct copy 0f this Complaint is attached hereto as Exhibit 1. 2. Plaintiff alleges that on April 30, 2018, he was surgically implanted With five M6 medical devices. (Compl. 1] 19.) The M6 is an artificial disc that offers an innovative option for cervical disc replacement for symptomatic, single-level cervical disc degeneration. He filrther alleges that two 0f the five M6s implanted in him were defective, Which caused him “debilitating pain,” requiring surgery to 1 Removing Defendants expressly reserve their right to assert personal jurisdiction defenses and d0 not file this removal as a waiver of that right. Fields v. Sedgwick Associated Risks, Ltd, 796 F.2d 299, 300-01 (9th Cir. 1986) (dismissing removed federal action for lack of personal jurisdiction); see also Freeney v. Bank ofAm. Corp, 2015 U.S. Dist. LEXIS 92848, N0. CV 15-02376 MMM, at *63-64 (C.D. Cal. July 16, 2015); Enterprises, LLC v. W. Inv. Real Estate Trust, No. CV 08-1050LJOSMS, 2008 U.S. Dist. LEXIS 82883, 2008 WL 4367560, *2 (E.D. Cal. Sept. 23, 2008) ("A defendant's choice t0 first remove an action t0 federal court before seeking t0 challenge personal jurisdiction does not constitute a waiver 0f obj ections to personal jurisdiction"); Dielsi v. Falk, 916 F.Supp. 985, 994 (C.D. Cal. 1996) ("[A] defendant does not waive jurisdictional challenges by removing the case t0 federal cou "); Webb v. Sitzes, 82 F.3d 424, [published in full-text format at 1996 U.S. App. LEXIS 8961] 1996 WL 169298, *3 (9th Cir. Apr. 10, 1996) (Unpub. Disp.) ("The district court properly held that the motion to remove did not waive the objection t0 personal jurisdiction"). 2 Case No. 5:21-cv-8063 DEFENDANTS ORTHOFIX US LLC AND SPINAL KINETICS, INC.’S NOTICE OF REMOVAL OOOQONUI-RUJNH NNNNNNNNNv-Ar-tr-v-Ar-tr-v-Ar-tr-v-A OOQONLIIAUJNi-‘OKOOOQQUIAUJNF-‘O Case 5:21-cv-08063 Document 1 Filed 10/14/21 Page 3 of 9 remove them. (Id. W 31, 32.) Plaintiff also alleges that as a result of the defective devices, he has “suffered severe and permanent personal injuries, including the inability t0 have children.” (Id. 11 34.) 3. The Complaint contains the following causes 0f action: (1) negligence and negligence per se; (2) strict product liability; (3) breach of warranty; (4) Violation of the Consumer Legal Remedies Act; (5) Violation 0f the False Advertising Law; and (6) Violations of the Unfair Competition Law. 4. N0 defendant, including Removing Defendants, has been formally served With the Complaint. VENUE 5. Venue is proper in this Court pursuant to 28 U.S.C. §§ 84, 1391, 1441(a), and 1446(a) because the Superior Court 0f California in and for the County of Santa Clara, Where the Complaint was filed, is a state court Within the Northern District of California. INTRADISTRICT ASSIGNMENT 6. Because this case was removed from the Superior Court of California in and for the County 0f Santa Clara, this civil action shall be assigned to the San Jose Division of the Northern District 0f California, pursuant to Local Rule 3-2(b)-(c). JURISDICTION 7. This Court has subject matter jurisdiction under 28 U.S.C. § 1332(a)(3) because (1) this civil action is between citizens of different states and in which citizens of a foreign state are additional parties; (2) Spinal Kinetics, Inc., the only possible forum defendant, has not yet been “properly joined and served” under 28 U.S.C. § 1441(b)(2); (3) the amount in controversy exceeds $75,000, exclusive 0f interests and costs; and (4) all other requirements for removal have been satisfied. 8. A copy of the state court docket is attached hereto as Exhibit 2. I. The Court has Diversity Jurisdiction over Plaintiff’s claims. A. Removal ofPlaintiff’s action as an individual. 9. Removing Defendants hereby provide “a short and plain statement of the grounds for removal” pursuant t0 28 U.S.C. § 1446(a). A notice of removal “need not contain evidentiary submissions.” Dart Cherokee Basin Operating C0., LLC v. Owens, 135 S. Ct. 547. 551 (2014). Rather, “if the plaintiff contests the defendant’s allegation . . . both sides submit proof and the court decides, by a 3 Case No. 5:21-cv-8063 DEFENDANTS ORTHOFIX US LLC AND SPINAL KINETICS, INC.’S NOTICE OF REMOVAL OOOQONUI-RUJNr-‘k NNNNNNNNNv-Ar-tr-v-Ar-tr-v-Ar-tr-tp-A OOQONLh-RUJNi-‘OOOOQQUI-bUJNF-‘O Case 5:21-cv-08063 Document 1 Filed 10/14/21 Page 4 of 9 preponderance 0f the evidence, Whether the amount-in-controversy requirement has been satisfied.” Id. at 553-54. As recently held by the Ninth Circuit: “when a notice of removal plausibly alleges a basis for federal court jurisdiction, a district court may not remand the case back to state court Without first giving the defendant an opportunity to show by a preponderance of the evidence that the jurisdictional requirements are satisfied.” Arias v. Residence Inn, 936 F.3d 920, 924 (9th Cir. 2019) (rejecting sua sponte remand). If the Court requires that the Removing Defendants prove the facts alleged in this notice of removal to establish jurisdiction, or if Plaintiff files a motion to remand challenging the factual basis for this Court’s jurisdiction, the Removing Defendants Will do so. B. Plaintiffis a citizen 0fNevadaf0r diversityjurisdiction purposes. 10. Plaintiff is a citizen 0f the state in Which he is domiciled. See Kanter v. Warner-Lambert Ca, 265 F.3d 853, 857 (9th Cir. 2001) (“The natural person’s state citizenship is then determined by her state 0f domicile . . . [a] person’s domicile is her permanent home, where she resides with the intention t0 remain 0r to which she intends to return”). 11. Plaintiff Christophe Stanic pleads he was “a resident of, domiciled in, and a citizen of the State ofNevada.” (Compl. 1] 2.) C. N0 defendant is a citizen 0fNevada. 12. For purposes of diversity jurisdiction, a corporation is “a citizen of every State and foreign state by Which it has been incorporated and 0f the State or foreign state where it has its principal place 0f business[.]” 28 U.S.C. § 1332(c)(1). 13. Defendant Orthofix US LCC, formerly Orthofix Inc., is a corporation organized under the laws of the State of Delaware with its principal place of business in Texas. It is a citizen of Delaware and Texas for diversity purposes. 14. Defendant Spinal Kinetics, Inc. is a corporation organized under the laws 0f the State of Delaware with its principal place 0f business in California. It is a citizen of Delaware and California for diversity purposes. 15. Defendants German Spine Specialists, My Spine Solution, and ONZ-Orthopadisch Neurochirugisches Zentum are German entities. Defendant Ken Hiebert is a Canadian resident. Thus, these defendants are citizens of foreign states for diversity purposes. 4 Case No. 5:21-cv-8063 DEFENDANTS ORTHOFIX US LLC AND SPINAL KINETICS, INC.’S NOTICE OF REMOVAL OOOQONUI-RUJNH NNNNNNNNNv-Ar-tr-v-Ar-tr-v-Ar-tr-v-A OOQONLh-RWNi-‘OKOOOflQm-bUJNF-‘O Case 5:21-cv-08063 Document 1 Filed 10/14/21 Page 5 of 9 D. The Forum Defendant Rule does not bar removal because Spinal Kinetics, Inc. has not been properly served. 16. Because Defendant Spinal Kinetics, Inc.-the only potential forum defendant-has not been “properly joined and served” at the time 0f this filing, the forum defendant rule 0f 28 U.S.C. §1441(b) is inapplicable. See, e.g., Glob. Indus. Inv. Ltd. v. Chung, N0. 19-CV-07670-LHK, 2020 U.S. Dist. LEXIS 76787, at *10 (N.D. Cal. Apr. 28, 2020) (holding forum defendant rule did not bar removal by an in-state defendant prior to being properly joined and served); Loewen v. McDonnell, No. 19-CV- 00467-YGR, 2019 U.S. Dist. LEXIS 94613, at *17 (ND. Cal. June 5, 2019) (“[T]he Northern District of California has consistently held a defendant may remove an action prior t0 receiving proper service, even When the defendant resides in the state in Which the plaintiff filed the state claim”) (quotation marks omitted and collecting cases). Monfort v. Adomani, Ina, N0. 18-CV-0521 1-LHK, 2019 WL 131842, at *4 (N.D. Cal. Jan. 8, 2019) (recognizing and following the Third Circuit as the first circuit court t0 consider, and approve 0f, plain reading 0f § 1441(b)) (citation omitted»; Regal Stone Ltd. v. Longs Drug Stores California, L.L.C., 881 F. Supp. 2d 1123, 1129 (N.D. Cal. 2012) (holding removal by out-of-state defendant was proper and Viewing Congress’s 2011 preservation 0f “properly joined and served” language “as an endorsement” 0f literal reading 0f the statute); Dechow v. Gilead Scis., Ina, N0. 218CV09362ABGJSX, 2019 WL 517624, at *4 (C.D. Cal. Feb. 8, 2019) (adopting plain language interpretation of § 1441(b)(2) “Which requires a party to be properly joined and served before the forum defendant rule may limit the Court’s jurisdiction”) (emphasis in original); id. at *3 (noting that the Third Circuit “adopts the same analytical framework as the Court does here” (citing Encompass Ins. C0. v. Stone Mansion Restaurant Ina, 902 F.3d 147 (3d Cir. 2018»); Zirkz'n v. Shandy Media, Inc. et al., N0. 218CV09207ODWSSX, 2019 WL 626138, at *4 (C.D. Cal. Feb. 14, 2019) (denying motion t0 remand because “the Court is unwilling t0 effectively erase language from a statute by ignoring the language ‘and served’ in the Forum Defendant Rule and tread dangerously into legislative province.”); May v. Hass, N0. 2: 12-CV-01791-MCE-DAD, 2012 WL 4961235, at *2 (E.D. Cal. Oct. 16, 2012) (upholding out-of- state defendant’s removal and denying plaintiff s motion to remand because, at the time of removal, the forum defendant had not been “properly joined and served” as required by § 1441) (emphasis added); Allen v. Eli Lilly & Ca, 2010 WL 3489366, at *3 (S.D. Cal. Sept. 2, 2010) (“The forum defendant rule is 5 Case No. 5:21-cv-8063 DEFENDANTS ORTHOFIX US LLC AND SPINAL KINETICS, INC.’S NOTICE OF REMOVAL OOOQONUI-RUJNr-‘k NNNNNNNNNv-Ar-tr-v-Ar-tr-v-Ar-tr-tp-A OOQONLh-RUJNi-‘OKOOOQQUI-bUJNF-‘O Case 5:21-cv-08063 Document 1 Filed 10/14/21 Page 6 of 9 inapplicable if the removal is effected by an out-of-state defendant before any local defendant is served”); Timmons v. Linvatec Corp, No. CV09-7947RSSX, 2010 WL 2402918, at *1 (C.D. Cal. Jan. 14, 2010) (removal was proper because forum defendants had not been served and therefore California citizenship was irrelevant); Cuccz' v. Edwards, 5 10 F. Supp. 2d 479, 483 (C.D. Cal. 2007) (removal was proper because service was not complete at time of removal, and therefore “the § 1441(b) prohibition against removal did not apply”); cf. Spencer v. U.S. Dist. Courtfor N. Dist. 0fCal., 393 F.3d 867, 870 (9th Cir. 2004) (under § 1441(b), post-removal joinder of forum defendant does not require remand, because “[c]hallenges t0 removal jurisdiction require an inquiry into the circumstances at the time the notice of removal is filed[, and] [s]ubsequent events, at least those that d0 not destroy original subject- matter jurisdiction, do not require remand”). E. The citizenship ofdoe defendants should be ignored. 17. The citizenship 0f the unnamed, unidentified Doe Defendants should be ignored for purposes of determining Whether this action is removable based on diversity of citizenship. See 28 U.S.C. § 1441(b)(1) (“In determining Whether a civil action is removable 0n the basis of [diversity 0f citizenship], the citizenship 0f defendants sued under fictitious names shall be disregarded”). F. The amount-in-controversy exceeds $ 75,000. 18. While Removing Defendants specifically deny liability as t0 all of Plaintiff” s claims, Removing Defendants have a reasonable, good faith belief that the amount in controversy, as alleged and pled by Plaintiff, exceeds $75,000 for his individual claim. “[A] defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating C0,, LLC v. Owens, 135 S. Ct. 547, 554 (2014). “[W]hen a defendant seeks federal-court adjudication, the defendant’s amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court.” Id. at 553. 19. Here, the Complaint makes no specific claim for damages, only asserting the matter has an amount in controversy “in excess of the statutory requirements of this Court.” (Compl. 1] 15.) Plaintiff’ s Prayer for relief specifically requests general damages, special damages, punitive damages, and attorneys’ fees. (Id., Prayer.) 6 Case No. 5:21-cv-8063 DEFENDANTS ORTHOFIX US LLC AND SPINAL KINETICS, INC.’S NOTICE OF REMOVAL OOOQONUI-RUJNH NNNNNNNNNv-Ar-tr-v-Ar-tr-v-Ar-tr-v-A OOQONLh-RUJNi-‘OKOOOQQUI-bUJNF-‘O Case 5:21-cv-08063 Document 1 Filed 10/14/21 Page 7 of 9 20. Where a complaint fails t0 set forth a specific amount 0f damages, a defendant “must provide evidence establishing it is “more likely than not’ that the amount-in-controversy exceeds $75,000.” Bryan v. Apotex, Ina, No. 1:12-CV-01377-LJO, 2012 WL 5933042, at *3 (E.D. Cal. NOV. 27, 2012) (citing Sanchez v. Monumental Life Ins., 102 F.3d 398, 404 (9th Cir. 1996).). 21. “[T]he amount in controversy is the “amount at stake in the underlying litigation. ’ ‘Amount at stake’ does not mean likely 0r probable liability; rather it refers to possible liability.” Green v. Harley-Davidson, Ina, 965 F.3d 767, 772 (9th Cir. 2020) (emphasis in original) (quoting Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 2016)). “In measuring the amount in controversy, ‘a court must assume that the allegations of the complaint are true and assume that a jury Will return a verdict for the plaintiff 0n all claims made in the complaint.” Korn v. Polo Ralph Lauren Corporation, 536 F. Supp. 2d 1199, 1205, 1205 (ED. Cal. 2008) (quoting Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (C.D. Cal. 2002)). 22. Here, the amount-in-controversy requirement is satisfied because Plaintiff’ s claims for a laundry list of alleged damages in his Complaint clearly implicate an allegation over the $75,000 jurisdictional threshold. The amount-in-controversy is further supported by Plaintiff’ s allegations of serious personal injuries, Which include “severe and permanent personal injuries, including the inability t0 have children.” (Compl. fl34.) See, e.g., Strong v. Merck & Ca, No. C 04-5062 MHP, 2005 U.S. Dist. LEXIS 2413, at *16 (N.D. Cal. Feb. 17, 2005) (holding allegation 0f serious physical injury as a result of product defect “undoubtedly” exceeded $75,000); Garcia v. Owens-Brockway Glass Container Ina, N0. LACV1601889JAKRAOX, 2016 WL 9275451, at *3 (C.D. Cal. June 30, 2016) (complaint With single negligence cause of action sufficient on its face to establish jurisdictional minimum); Hammarlund v. CR. Bard, Ina, No. 215CV05506SVWJEM, 2015 WL 5826780, at *2 (C.D. Cal. Oct. 2, 2015) (“[C]ourts have found it facially apparent from [complaints alleging severe injuries] that the amount in controversy was satisfied”); Campbell v. Bridgestone/Firestone, Ina, No. CIVFOS 1499FVSDLB, 2006 WL 707291, at *3 (ED. Cal. Mar. 17, 2006) (amount in controversy satisfied Where complaint asserted a variety of claims, including breach of warranty claims, and sought compensatory damages). II. All other removal requirements are satisfied. 7 Case No. 5:21-cv-8063 DEFENDANTS ORTHOFIX US LLC AND SPINAL KINETICS, INC.’S NOTICE OF REMOVAL OOOQONUI-RUJNH NNNNNNNNNv-Ar-tr-v-Ar-tr-v-Ar-tr-v-A OOQONM-mei-‘OKDOOQQUI-bUJNF-‘O Case 5:21-cv-08063 Document 1 Filed 10/14/21 Page 8 of 9 23. This Notice 0fRemoval is timely filed. 28 U.S.C. § 1446(b)(1) requires that the Notice of Removal be filed Within 30 days of receipt by Removing Defendants, “through service 0r otherwise,” of a copy of the Complaint. To date, Removing Defendants have never been served with the Complaint. 24. For purposes 0f removal based 0n diversity jurisdiction under 28 U.S.C. § 1332(a) and pursuant to 28 U.S.C. § 1446(b), all defendants who have been properly joined and served must consent t0 removal. But no defendant has been served in this lawsuit. Thus, consent from defendants other than the Removing Defendants is not required. Wimberly v. Beard, No. 2: 16-cv-0279 KJM KJN P, 2016 U.S. Dist. LEXIS 115043, at *10-11 (E.D. Cal. Aug. 26, 2016) (“While the general rule is that all defendants in a state action must join in the petition for removal, this rule applies only to defendants properly joined and served in the action”); Aqua Connect, Inc. v. Code Rebel LLC, No. CV 11-5764 RSWL (MANX), 2011 U.S. Dist. LEXIS 124086, at *10 (C.D. Cal. Oct. 25, 201 1) (“Case law generally requires all defendants t0 join or consent to the notice 0f removal, but an exception exists When a non-joining defendant has not been served . . .”). 25. Pursuant to 28 U.S.C. § 1446(d), Removing Defendants will give written notice of the filing of this Notice 0fRemoval t0 all parties of record in this matter, and Will file a copy of this Notice ofRemoval t0 all parties of record in this matter, and will file a copy of this Notice With the clerk of the state court. CONCLUSION WHEREFORE, Defendants ORTHOFIX US LLC and SPINAL KINETICS, INC. hereby remove this action from the Superior Court of California in and for the County 0f Santa Clara, to the United States District Court for the Northern District of California. // // // // // // // 8 Case No. 5:21-cv-8063 DEFENDANTS ORTHOFIX US LLC AND SPINAL KINETICS, INC.’S NOTICE OF REMOVAL OOOQONUl-RUJNH NNNNNNNNNv-Ar-tr-v-Ar-tr-v-Ar-tr-tp-A OOQONM-mei-‘OKDOOQQUIAUJNF-‘O Case 5:21-cv-08063 Document 1 Filed 10/14/21 Page 9 of 9 DATED: October 14, 2021 GREENBERG TRAURIG, LLP By: /S/Kate M. Wittlake_ Ginger Pigott Richard Tabura Kate M. Wittlake Attorneys for Defendant ORTHOFIX US LLC and SPINAL KINETICS, INC. 9 Case No. 5:21-cv-8063 DEFENDANTS ORTHOFIX US LLC AND SPINAL KINETICS, INC.’S NOTICE OF REMOVAL EXHIBIT 1 Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 1 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E-FILED 5/14/2021 5:32 PM ANTHONY L. LABEL, No. 205920 gLer'e‘r‘i’grcggurtfl Of CASTEVEN KRONENBERG, NO. 215541 p ’ THE VEEN FIRM, P_c_ COunty Of santa Clara 20 Haight Street 21 CV382461 I San Francisco, California 94102 Reviewed By: N. Chnstopherson Telephone: (4 1 5) 673 -4800 Facsimile: (4 1 5) 77 1 -5845 AL.Team@VeenFirm.com ATTORNEYS FOR PLAINTIFF, CHRISTOPHE STANIC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA CHRISTOPHE STANIC, CASE NO 21 CV382461 Plaintiff, COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL V. ORTHOFIX INC, SPINAL KINETICS, INC., GERMAN SPINE SPECIALISTS, MY SPINE SOLUTION, KEN HIEBERT, ONZ - ORTHOPADISCH NEUROCHIRUGISCHES ZENTUM, and DOES 1 t0 50, inclusive, Defendants. GENERAL ALLEGATIONS Plaintiff CHRISTOPHE STANIC alleges generally against Defendants, and each 0f them, as follows: 1. The entirety 0f this complaint is pleaded upon information and belief. Each allegation contained herein is likely t0 have evidentiary support after a reasonable opportunity for further investigation 0r discovery. PARTIES 2. Plaintiff CHRISTOPHE STANIC at all relevant times was a resident 0f, domiciled in, and a citizen 0f the State 0fNevada. 6663891 _ 1 _ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 2 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Defendant ORTHOFIX INC. (hereinafter “ORTHOFIX”) is a Minnesota Corporation, along with DOES 1-10 (business entities 0f a form unknown) that operates a manufacturing plant in Sunnyvale, California under its subsidiary, SPINAL KINETICS, INC. Defendant ORTHOFIX has its principal place 0f business in Texas but and conducts substantial business in California. 4. Defendant SPINAL KINETICS, INC. (hereinafter “SPINAL KINETICS”) is a Delaware Corporation, along with DOES 11-20, which is a subsidiary ofORTHOFIX. SPINAL KINETICS operates its principal place 0f business in Sunnyvale, California. 5. Defendants GERMAN SPINE SPECIALISTS, MY SPINE SOLUTION, and ONZ -ORTHOPADISCH NEUROCHIRUGISCHES ZENTUM are business organizations, form unknown. 6. Defendant KEN HIEBERT was an employee, contractor, and/or agent 0f defendants. Plaintiff understands that this defendant resides in Canada. 7. At all times mentioned here, each 0f the Defendants named, including each Defendant sued under a fictitious name, was the duly authorized agent, servant, joint venturer, partner, and/or employee 0f each and every other Defendant with respect t0 the events and transactions herein alleged, and in acting 0r omitting t0 act with respect thereto as hereinafter alleged, was within the course, scope and authority 0f such agency, service, joint venture, partnership, and/or employment, and conducting himself, 0r itself pursuant t0 the consent, permission, authorization, and/or ratification 0f and by each and every Defendant, as aforesaid, when acting as a principal, was negligent in the selection, hiring, and/or supervision 0f each and every other Defendant as an agent, servant, employee, and/or independent contractor. 8. The true names 0r capacities, whether individual, corporate, associate 0r otherwise, 0f the Defendants sued herein as DOES, are unknown t0 Plaintiff, who therefore sue said Defendants by such fictitious names, pursuant t0 Section 474 0f the Code 0f Civil Procedure. Each 0f said Defendants designated by such fictitious names is responsible and legally obligated t0 Plaintiff in contract, in tort, 0r by statute, for the events and happenings herein referred t0, and for the damages legally caused t0 Plaintiff. Plaintiff therefore prays leave t0 amend this complaint t0 -2- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 3 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 insert the true names and capacities 0f said Defendants when they have been ascertained. 9. At all times mentioned in this complaint, certain 0f the Defendant DOES are the successors in interest t0 each 0f the remaining Defendants and 0n that basis, are liable for any act, 0r omission 0f said Defendants alleged in this complaint. 10. Defendants designed and manufactured multiple versions, sizes, and forms 0fM6 Artificial Discs and their component and constituent parts (“the M6 Devices”), the subj ect 0f this action, in Sunnyvale, California. 11. There is a unity 0f interest and operation between ORTHOFIX, SPINAL KINETICS, DOES 1-10, and DOES 11-20 such that their separate and independent classification is but a fiction, and that each is the alter ego 0f the other. 12. DOES 21-50 were also liable t0 plaintiff for other reasons not currently known t0 Plaintiff. 13. Defendants are liable for the acts 0f each other through principals 0f respondeat superior, agency, ostensible agency, partnership, alter-ego and all other forms 0f direct and Vicarious liability. VENUE AND JURISDICTION 14. Venue is proper under Code 0f Civil Procedure, sec. 394(a), in that this action is brought in the County in which Defendants are situated, and Plaintiff alleges, inter alia, that the negligence 0f the Defendants caused the incident at issue, which occurred in this County. 15. Jurisdiction is proper in this case in that the amount in controversy is in excess 0f the statutory requirements 0f this Court. FACTS COMMON TO ALL CAUSES OF ACTION 16. Plaintiff CHRISTOPHE STANIC is a renowned chefwho worked in prestigious restaurants around the world. 17. In or about 2017, PlaintiffCHRISTOPHE STANIC was working as a professional chef in London, when he suffered catastrophic injuries from an attack by a German Shepherd guard dog. 18. As a result 0f his injuries, Plaintiff suffered spinal injuries, including but not -3- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 4 of 18 THE-VEEN-FIRM,-P.C. 20-HNGHT- STREET SAN-FRANCISCO,- CA-94102 Te|;~(415)~emeoo www.veenfinn.com limited t0 damage t0 cervical and lumbar discs. Mr. Stanic was in excellent health prior to his injuries. 19. On 0r about April 30, 2018, PlaintiffCHRISTOPHE STANIC underwent spine surgery to replace five discs. 20. The M6 Artificial Discs (hereinafter “the M6 Devices”), manufactured and designed by Defendants ORTHOFIX and SPINAL KINETICS, were used t0 replace Mr. Stanic’s five discs. 21. Before his surgery, Defendants, and each 0f them, contacted Mr. Stanic t0 advertise, market, and promote the M6 Devices. Defendants, and each 0f them, hold conferences around the world t0 advertise, market, and promote the M6 Devices. 22. Defendants, and each 0f them, advertised, marketed, and promoted the M6 Devices t0 Mr. Stanic in California, even though it was not approved by the FDA, in Violation of 21 USC § 352 and related authority. During this sales presentation, defendants represented that the M6 Devices were reliable, durable, safe and effective. They also represented that the M6 Devices were superior t0 competing products that were FDA-approved. 23. Defendants knew that Mr. Stanic was a layperson in serious pain who was vulnerable and relying 0n the defendants’ knowledge and expertise about the M6 Devices. Defendants exploited Mr. Stanic by advertising, marketing, promoting, and selling to him defendants’ expensive, dangerous, defective, and misbranded M6 Devices. Defendants intended t0 -4- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 5 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deceive Mr. Stanic, and they provided him with false and misleading information about the M6 Devices t0 close the sale. Mr. Stanic reasonably relied 0n defendants’ representations that the M6 Devices would provide him the opportunity t0 live a normal life without chronic pain and functional limitations. 24. Defendants knowingly concealed material information from Mr. Stanic. This included, but was not limited t0, Defendants’ knowledge that the M6 Devices were defectively designed and manufactured, misbranded, not superior t0 FDA-approved devices, and had harmed other persons. Defendants knew their representations about the M6 Devices were false, 0r they had n0 reasonable grounds for believing them t0 be true. 25. Mr. Stanic could not have reasonably discovered that the defendants were concealing their false and misleading information. If Mr. Stanic had known the truth about defendants’ M6 Devices, then he reasonably would have pursued other options for treating his spinal injuries instead 0fundergoing surgery t0 implant the M6 Devices. 26. In reliance 0n defendants’ representations, Mr. Stanic agreed t0 travel t0 Spain for surgery t0 implant the M6 Devices. Mr. Stanic also paid for the M6 Devices and related expenses for travel, surgery, and follow-up care. 27. At the time 0f Mr. Stanic’s surgery, the M6 Device was not approved by the U.S. Food and Drug Administration (“FDA”). (The M6 Device received FDA approval in February 2019) 28. After completion 0f surgery t0 implant the M6 Devices, Mr. Stanic’s surgeon notified him that the procedure was completely successful and the M6 Devices were working properly. His surgeon told Mr. Stanic that recovery would take time, and that during this time, it would be normal t0 experience symptoms including but not limited t0 pain and discomfort. 29. Mr. Stanic relied 0n his surgeon’s representations. Mr. Stanic attended the recommended follow-up appointments and followed his surgeon’s recommendations t0 facilitate his recovery. Mr. Stanic’s surgeon continued t0 represent that Mr. Stanic’s symptoms were normal, that the M6 Devices were working properly, and that in time, he would recover from the surgery. -5- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 6 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30. In 0r about October 2019, the surgeon recommended nerve ablation t0 facilitate Mr. Stanic’s recovery. But instead 0f pain relief, Mr. Stanic experienced widespread and debilitating pain. 3 1. In 0r about October 2019, due t0 debilitating pain following the nerve ablation procedure, Mr. Stanic sought treatment with a different surgeon. After reasonable inspection, that surgeon suggested that the M6 Devices may have been defective and prematurely failed. Plaintiff was not aware and had n0 reason t0 suspect the defective nature 0f the M6 Devices until October 20 1 9. 32. The “discovery rule” is an exception t0 the general rule that an action accrues when a person suffers appreciable harm. The accrual 0f certain causes 0f action is postponed until after the plaintiff discovers, 0r has reason t0 discover, the cause 0f action. (Fox v. Ethicon Endo- Surgery, Inc. (2005) 35 Ca1.4th 797, 807, 81 1-815.) Additionally, pursuant t0 Cal. Rules 0f Court, Emergency Rule 9, the Statute 0f Limitations has been tolled n0 less than 178 days. Accordingly, this complaint is timely filed. 33. In November 2019, Mr. Stanic underwent surgery t0 remove the M6 Devices. The procedure lasted 9 hours. Upon completion 0f the removal 0f the M6 Devices, the surgeon confirmed that two 0f the five M6 Devices had failed. At least one 0f the M6 Devices had a hole in the sheath and failed t0 flex properly. The mesh around the central core was ruptured and the inner core was cracked. The M6 Devices’ inner core was apparently too small and soft, which caused sliding between endplates and the inability t0 withstand the force 0f the lumbar spine. 34. Due t0 the defective nature 0f the M6 Devices that required subsequent surgery t0 remove them, Mr. Stanic suffered severe and permanent personal injuries, including the inability t0 have children. Mr. Stanic and his wife were trying t0 start a family when the incident occurred. 35. Mr. Stanic attempted t0 warn others 0f the defective nature 0f the M6 Devices. In response t0 Mr. Stanic’s truthful statements, the Vice President 0f Defendant ORTHOFIX contacted Mr. Stanic and attempted t0 negotiate a settlement 0f his claims. Defendants continued t0 attempt t0 negotiate a settlement directly with Mr. Stanic without the necessity of filing a complaint. -6- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 7 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36. Defendants knew 0r should have known 0f the need t0 provide Plaintiff with adequate warnings 0r instructions concerning the M6 Devices. Defendants failed t0 warn and concealed that the M6 Devices and their component parts were defectively designed and manufactured so that, inter alia, they were unable t0 withstand the force 0f the lumbar spine. 37. Defendants’ acts and omissions were the proximate and legal cause 0f harm t0 plaintiff, who has sustained economic and non-economic damages, the exact amount 0f which is unknown to Plaintiff, but which will be proved at trial. FIRST CAUSE OF ACTION [Negligence and Negligence Per Se - Against All Defendants] 38. Plaintiff incorporates by reference the foregoing paragraphs as though fully set forth herein. 39. Defendants designed, produced, manufactured, assembled, sold, supplied, and/or otherwise placed the defective M6 Devices and their component parts into the stream 0r commerce. Accordingly, defendants owed a duty 0f care t0 Plaintiff. 40. The Defendants negligently and carelessly failed t0 take the care and duty owed t0 Plaintiff, thereby causing Plaintiff t0 suffer severe and permanent injuries. 41. The negligence and carelessness 0f the Defendants includes the following, all 0f which Defendants, and each 0f them, knew 0r should have known before the incident at issue occurred: a. Failure t0 properly design and manufacture the M6 Devices and their component parts; b. Failure t0 warn about the dangers associated with the use 0f the M6 Devices and their component parts; c. Failure t0 ensure that the M6 Devices would not fail prematurely with normal and intended use (0r reasonably foreseeable misuse); d. Failure t0 recall 0r retrofit the M6 Devices, which a reasonable manufacturer, distributor, 0r seller would have done; e. Labeling, advertising, promoting, and offering for sale in California non-FDA -7- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 8 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 approved and misbranded medical devices; f. Failure t0 use due care under the circumstances; and g. Negligence at law. 42. As a direct and proximate result 0f the negligence and careless 0f the Defendants, Plaintiff was caused t0 sustain severe and permanent injuries, which required substantial treatment and hospitalization. 43. As a direct and proximate result 0f these injuries, all 0fwhich are serious in nature and all ofwhich are to Plaintiffs great financial detriment and loss, Plaintiff has in the past, is presently, and may in future suffer pain, anguish, sickness, and agony. 44. As a direct and proximate result 0f these injuries, Plaintiff suffered and continues t0 suffer emotional injuries, mental anguish, humiliation, loss 0f life’s pleasures, and the inability t0 attend social and work obligations. 45. As a direct and proximate result 0f these injuries, Plaintiff has, is presently, and may in the future undergo great losses 0f earnings, earning capacities, and household services, all to Plaintiffs further loss and detriment. 46. As a direct and proximate result 0f Seller Defendants’ negligence and carelessness, Plaintiff has and will in the future be obligated t0 expend monies for medicine and medical care t0 help treat and cure the injuries caused by the Defendants. 47. WHEREFORE, Plaintiff respectfully requests this Court enter judgment in their favor and against Defendants, individually and jointly and severally, in an amount t0 exceed the jurisdictional limit, together with interest, costs, and any further relief this Court may deem just and proper. SECOND CAUSE OF ACTION [Strict Product Liability - Against All Defendants] 48. Plaintiff incorporates by reference the foregoing paragraphs as though fully set forth herein. 49. Defendants, under applicable law, are strictly liable for Plaintiffs severe and permanent injuries, because -8- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 9 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At all relevant times, Defendants were in the business 0f designing, manufacturing, distributing, assembling, repairing, and/or selling the defective M6 Devices and their component parts; Defendants expected the defective M6 Device and its component parts t0 be used by consumers without substantial change in the condition it was sold; The defective M6 Devices at issue reach Defendants’ consumers and were used without substantial change in the condition they were designed, manufactured, distributed, and/or sold by Defendants; and Defendants knew that alternative, safer, practical designs 0f the defective M6 Devices and their component parts existed at the time that they were designed, manufactured, distributed, and/or sold by Defendants. Defendants further knew, 0r should have known, that the M6 Devices and their component parts could cause injury during their intended 0r reasonably foreseeable use (0r reasonably foreseeable misuse). However, defendants unreasonably failed t0 design, manufacture, distribute, 0r sell such safer, practical designs 0r t0 warn 0f the risks of harm. The Defendants, and each 0f them, knew 0f, consciously disregarded, and ratified the conduct that gave rise t0 these hazards before the incident at issue occurred. 50. Defendants breached their duties and obligations under applicable law by: a. b. C. Designing, manufacturing, distributing, importing, repairing, and/or selling the defective M6 Devices, including but not limited t0 the M6 Device’s central and inner core, in an unreasonably dangerous, defective, and unsafe condition; Designing, manufacturing, distributing, importing, assembling, repairing, and/or selling the defective M6 Devices that lacked one 0r more necessary elements necessary t0 make the device safe for its intended use; Designing, manufacturing, distributing, importing, assembling, repairing, and/or selling the defective M6 Device, in such a condition that it contained one or more elements which made it safe for its intended use; -9- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 10 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d. Designing, manufacturing, distributing, importing, assembling, repairing, and/or selling the defective M6 Devices in such condition that they could not be safely used when used for its intended purpose; e. Designing, manufacturing, distributing, importing, assembling, repairing, and/or selling the defective M6 Devices, without the implementation 0f alternative, safer, practical designs; f. Designing, manufacturing, distributing, importing, assembling, repairing, and/or selling the defective M6 Devices while failing t0 warn 0f their defective and dangerous condition; g. Failing t0 recall 0r retrofit the defective devices; and h. Designing, manufacturing, distributing, importing, assembling, repairing, and/or selling the defective M6 Devices that did not perform as safely as an ordinary consumer would have expected them t0 perform when used 0r misused in an intended 0r reasonably foreseeable way. 5 1. As a direct and proximate result 0f these injuries, all 0fwhich are permanent in nature and all 0f which are t0 Plaintiffs great financial detriment and loss, Plaintiff has in the past, is presently, and may in the future suffer pain, anguish, sickness and agony. 52. As a direct and proximate result 0f these injuries, Plaintiff suffered and continues t0 suffer emotional injuries, mental anguish, humiliation, loss 0f life’s pleasures, and the inability t0 attend t0 social and work obligations. 53. As a direct and proximate result 0f these injuries, Plaintiff has, is presently, and may in the future, undergo great losses 0f earnings, earning capacities, and household services, all to Plaintiffs further loss and detriment. 54. As a direct and proximate result 0f Defendants’ designing, manufacturing, distributing, assembling, repairing, and/or selling the defective M6 Devices, and Defendants’ corresponding Violations 0f applicable law, Plaintiff has and will be in the future be obligated t0 spend monies for medicine and medical care t0 help treat and cure the injuries caused by Defendants. -10- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 11 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 55. The conduct 0f Defendants, and each 0f them, was engaged in with fraud, oppression, and/or malice, and was done in a conscious disregard for the rights and safety 0f others, including Plaintiff, so as t0 warrant the imposition 0f punitive damages pursuant t0 Civil Code, sec. 3294. The Defendants, and each 0f them, knew 0f, consciously disregarded, and ratified the conduct that gave rise t0 these hazards before the incident at issue occurred. 56. WHEREFORE, Plaintiff respectfully requests this Court enter judgment in his favor and against Defendants, individually and jointly and severally, in an amount t0 exceed the jurisdictional limit, together with interest, costs, punitive damages, and any further relief this Court may deem just and proper. THIRD CAUSE OF ACTION [Breach 0f Warranty - Against All Defendants] 57. Plaintiff incorporates by reference the foregoing paragraphs as though fully set forth herein. 58. Plaintiff understands that the Defendants, and each 0f them, provided warranty(ies) with the subj ect defective M6 Device. Plaintiff understands that the scope and content 0f the warranty(ies) are known t0 the Defendants. 59. Defendants breached their warranties, both expressed and implied, that the defective M6 Devices and their component parts, were proper for their intended and foreseeable uses, and were designed and manufactured such that they would be safe for their intended use (0r reasonably foreseeable misuse). 60. Defendants breached their warranties, both express and implied, by designing, manufacturing, assembling and selling the defective M6 Devices, such that they were unsafe, defective, and 0f non-merchantable quality and not reasonably safe for the uses for which it was intended 0r for which was reasonably foreseeable, including but not limited t0 reasonably foreseeable misuse. The Defendants, and each 0f them, knew 0f, consciously disregarded, and ratified the conduct that gave rise t0 these hazards before the incident at issue occurred. 61. As a direct and proximate result 0f Defendants’ breach 0f their express and implied warranties, Plaintiff suffered severe and permanent injuries, which required substantial treatment -11- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 12 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and hospitalization. 62. As a direct and proximate result 0f the injuries, Plaintiff suffered pain, anguish, sickness and agony. 63. As a direct and proximate result 0f the injuries, Plaintiffs suffered emotional injuries, mental anguish, humiliation, loss 0f life’s pleasures, and the inability t0 attend t0 social and work obligations. 64. As a direct and proximate result 0f these injuries, Plaintiff has, is presently, and may in the future undergo great losses 0f earnings, earning capacities, and household services, all to Plaintiffs further loss and detriment. 65. As a direct and proximate result 0f these injuries, Plaintiff has, and will in the future be obligated t0 expend monies for medicine and medical care t0 help treat and cure the injuries caused by the Defendants. 66. WHEREFORE, Plaintiff respectfully requests this Court ender judgment in favor and against Defendants, individually and jointly and severally, in an amount t0 exceed the jurisdictional limit, together with interest, costs, punitive damages, and any further relief this Court may deem just and proper. FOURTH CAUSE OF ACTION [Violation 0f the Consumers Legal Remedies Act (“CLRA”) Cal. Civ. Code. §1750, et seq. - Against All Defendants] 67. Plaintiff incorporates by reference the foregoing paragraphs as though fully set forth herein. 68. The CLRA prohibits “unfair methods 0f competition and unfair 0r deceptive acts 0r practices undertaken by any person in a transaction intended t0 result 0r which results in the sale 0r lease 0f goods 0r services t0 any consumer. . .” (Civ. Code, § 1770.) 69. Defendants are “persons” defined by Civ. Code, §1761(c). 70. The M6 Devices are “g00d[s]” as defined by Civ. Code, §1761(a). 71. Plaintiff is a “consumer” as defined by Civ. Code, § 1761(d). 72. As alleged in detail above, Defendants omitted and concealed the M6 Devices’ defects and their consequences from Plaintiff. Defendants also made false and misleading -12- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 13 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statements about the capabilities, functionalities, and safety 0f the M6 Device. 73. In relying on Defendants’ material omissions and misrepresentations about the M6 Device, Plaintiffwas deceived and has been damaged. Had Defendants been truthful, Plaintiff would not have agreed t0 purchase and have the M6 Devices implanted in his spine. 74. Defendants’ conduct, as hereinabove described, is in Violation 0f CiV. Code, §1770, including but not limited t0 the following grounds: a. (a)(2): misrepresenting the source, sponsorship, approval, 0r certification 0f goods 0r services; b. (a)(S): representing that goods 0r services have sponsorship, approval, characteristics, ingredients, uses, benefits, 0r quantifies which they d0 not have; c. (a)(7): representing that goods are 0f a particular standard, quality, 0r grade, if they are another; d. (a)(9): advertising goods with the intent not t0 sell them as advertised; e. (a)(16): representing that goods have been supplied in accordance with a previous representation when they have not. 75. Defendants knew - before the distribution and sale 0f the defective M6 Devices - that the devices and their component parts contained defects. Defendants had a duty t0 disclose the defects, because Defendants had superior and exclusive knowledge 0f the defects prior t0 making sales 0f the M6 Devices and because defendants made misrepresentations about the capabilities, functionalities and safety 0f the M6 Devices. 76. The facts concealed 0r not disclosed by Defendants t0 Plaintiff are material, in that a reasonable consumer would have considered them t0 be important in deciding whether t0 purchase and implant the defective M6 Devices. Had Plaintiffknown about the M6 Devices’ defects, Plaintiffwould not have purchased, and caused t0 be implanted, the M6 Devices. 77. As a direct and proximate result 0f Defendants’ unfair and deceptive acts 0r practices, Plaintiff has been harmed. Under CiV. Code, § 1780(a), Plaintiff seeks an order enjoining Defendants from further engaging in the unfair and deceptive acts and practices alleged herein, and restitutionary relief t0 remedy Defendants’ Violations 0f the CLRA as alleged herein. If -13- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 14 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants d0 not rectify the defects timely, then plaintiff will amend the complaint t0 add a claim for damages under this cause 0f action. 78. Pursuant t0 CiV. Code, sec. 1780(a)(4), Plaintiff also seeks punitive damages against Defendants, because they carried our reprehensible conduct with willful and conscious disregard 0f the rights and safety 0f others, subjecting Plaintiff t0 potential cruel and unjust hardship as a result. Defendants intentionally and willfully deceived Plaintiff and concealed material facts that only they knew. Defendants’ unlawful conduct likewise constitutes malice, oppression, and fraud warranting exemplary damages under CiV. Code, § 3294. 79. Plaintiff further seeks an order awarding costs 0f court and attorneys’ fees under CiV. Code, § 1780(6), and any other just and proper relief under the CLRA. 80. WHEREFORE, Plaintiff prays for relief as set forth below. FIFTH CAUSE OF ACTION [Violation 0f The False Advertising Law (“FAL”) Cal. Bus. & Prof. Code Act Cal. Civ. Code. § 17500, et seq. Against All Defendants] 81. Plaintiff incorporates by reference the foregoing paragraphs as though fully set forth herein. 82. The FAL makes it “unlawful for any person t0 make 0r disseminate 0r cause t0 be made 0r disseminated before the public in this state, . . . in any advertising device . . . 0r in any other manner 0r means whatever, including over the Internet, any statement, concerning . . . personal property 0r services, professional 0r otherwise, 0r performance 0r disposition thereof, which is untrue or misleading and which is known, 0r which by the exercise 0f reasonable care should be known, t0 be untrue 0r misleading.” 83. Defendants committed acts 0f false advertising, as defined by the FAL, by using false and misleading advertising statement t0 promote the sale 0f the M6 Devices. Defendants knew 0r should have known that Plaintiff reasonably expected that the M6 Devices would restore proper function t0 his spine. This is the reasonable and objective consumer expectation. Defendants knew that the M6 Devices and their component parts were defectively designed 0r manufactured and not suitable for the intended and/or expected uses. Notwithstanding that -14- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 15 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 knowledge, Defendants continued t0 advertise the M6 Devices. Defendants continued, and continue, t0 advertise and sell the M6 Devices, and failed t0 disclose t0 the public that the M6 Devices d0 not operate in accordance t0 their advertised use. 84. Defendants knew 0r should have known, through the exercise 0f reasonable care, that their representations were false and misleading and likely t0 deceive Plaintiff into purchasing and having the M6 Devices implemented into his spine. 85. As a direct and proximate result 0f defendants’ false and misleading advertising statements, Plaintiff has suffered irreparable injuries. Had Defendants been truthful and adequately warned about the defects in the M6 Devices, Plaintiffwould have been better informed and been in a better position t0 determine whether t0 purchase and have the M6 Devices implanted in his spine. But by misrepresenting the benefits, capabilities, functionality and safety 0f the M6 Devices, and misleading Plaintiff, Defendants deprived Plaintiff from making an informed decision. 86. WHEREFORE, Plaintiff prays for relief as set forth below. FIFTH CAUSE OF ACTION [Violations 0f The Unfair Competition Law (“UCL”) Bus. & Prof. Code, § 17200, et seq. Against All Defendants] 87. Plaintiff incorporates by reference the foregoing paragraphs as though fully set forth herein. 88. The UCL broadly prohibits acts 0f “unfair competition,” including any “unlawful, unfair 0r fraudulent business act 0f practice” and “unfair, deceptive, untrue 0r misleading advertising.” (Bus. & Prof. Code, § 17200.) 89. A business act 0r practice is “unfair” under the UCL if the reasons, justifications and motives 0f the alleged wrongdoer are outweighed by the gravity 0f the harm t0 the alleged Victims. Defendants have engaged in “unfair” business practices and/or acts by failing t0 disclose the true nature 0f the M6 Devices and their component parts and their defective nature, and by misleading consumers about the capabilities, functionalities and safety 0f the M6 Devices. The acts and practices alleged herein are “unfair” because they caused Plaintiff, and reasonable -15- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 16 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Terms) 6734300 www.veenfinn.oom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consumers like him, t0 believe that Defendants were offering something 0f value that did not, in fact, exist. Defendants intended for Plaintiff t0 rely 0n the omissions and misleading statements. As a result, Plaintiff reasonably perceived that he was receiving the M6 Devices with certain benefits and guarantees. This perception induced reasonable purchasers, including Plaintiff, to purchase and cause t0 be implanted, the M6 Devices that he would not otherwise would have done had he known the truth. As alleged above, the gravity 0f harm t0 Plaintiff resulting from these unfair acts and practices outweighs any conceivable reasons, justifications and/or motives 0f Defendants for engaging in such deceptive acts and practices. By committing the acts and practices alleged above, Defendants engaged in “unfair” business practices within the meaning of the UCL. 90. A business act 0r practice is also “fraudulent” under the UCL if it is likely to deceive members 0f the consuming public. Defendants engaged in a uniform course 0f conduct which was intended t0, and did in fact, deceive Plaintiff into purchasing and having the M6 Device implanted. Defendant’s course 0f conduct and misleading representations were fraudulent within the meaning 0f the UCL because they deceived Plaintiff into believing he was receiving benefits that did not, in fact, exist. 91. A business act 0r practice is also “unlawful” under the UCL if it violates any other law 0r regulation. As alleged above, Defendants have violated 21 USC § 352, the CLRA, the FAL, and other laws as set forth herein. 92. Through their fraudulent, unfair, and unlawful acts and practices, Defendants improperly obtained money from Plaintiff. Plaintiff seeks t0 enjoin further unlawful, unfair and/or fraudulent acts 0r practiced by Defendants relating t0 the M6 Device and from Violating the UCL in the future by selling M6 Devices with the defect. Plaintiff also seeks t0 obtain restitutionary disgorgement 0f all monies and revenues generated as a result 0f such practices, require notice 0f defect be provided t0 purchasers 0f the M6 Devices, and all other relief allowed under Cal. Bus. & Prof. Code § 17200 including, but not limited t0, restitution and attorneys’ fees and costs under Code CiV. Proc., § 1021.5. 93. WHEREFORE, Plaintiff prays for relief as set forth below. -16- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 17 of 18 THE-VEEN-FIRM,-P.C. 20-HAIGHT- STREET SAN- FRANCISCO,- CA-94102 Tel:«(415)‘673L4800 www.veenfirmmm 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRAYER PLAINTIFF prays for judgment against the DEFENDANTS, and each 0f them, as follows: a. b. C. For injunctive and declaratory relief as pleaded 0r as the Court may deem proper; For general damages according t0 proof; For special damages according t0 proof; For punitive damages for the causes of action in which such damages are cognizable; Pre-judgment and post-judgment interest, as provided by law; For attorneys’ fees as provided by applicable law for the causes 0f action in which such damages are cognizable; For costs 0f suit herein; and For such further relief as this Court may deem proper. DEMAND FOR JURY TRIAL Plaintiff respectfully demands a jury trial 0n each and all claims so triable. DATED: May 14, 2021 THE VEEN FIRM, P.C. By: kaWé/ Anthony L. Label Steven A. Kronenberg Attorneys for Plaintiff, CHRISTOPHE STANIC -17- COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Case 5:21-cv-08063 Document 1-1 Filed 10/14/21 Page 18 of 18 EXHIBIT 2 Case 5:21-cv-08063 Document 1-2 Filed 10/14/21 Page 1 of 4 Case 5:21-cv-O8063 Document 1-2 Filed 10/14/21 Page 2 of 4 21 CV382461 Christophe Stanic vs KEN HIEBERT et al Case Information Case Type: Product Liability Unlimited (24) Case Number: 21CV382461 Filing Date: 5/14/2021 Case Status: Active Court Location: Civil PARTIES Show Search: A|| v entries A Type First Name Middle Name Last Name Defendant KEN HIEBERT Defendant ORTHOFIX INC. Defendant SPINAL KINETICS, INC. Defendant GERMAN SPINE SPECIALISTS Defendant MY SPINE SOLUTION Defendant ONZ-ORTHOPADISCH NEUROCHIRU< Plaintiff Christophe Stanic Showing 1 to 7 of7 entries Previous 1 Next Attorneys Show Search: Case 5:21-cv-08063 Document 1-2 Filed 10/14/21 Page 3 of 4All V entries : Representing First Name Middle Name Christophe Stanic Steven Aaron Showing1to1of1entries Previous 1 Next < > EVENTS Show Search: All V entries v File Date File Type Filed By Comment 9/24/2021 Minute Order 9/7/2021 Statement: Case Management Conference Christophe Stanic, Case Managemt 5/14/2021 New Filed Case 5/14IZUZ1 Civil Case Cover Sheet Christophe Stanic, Civil Case Cover 5/14[2021 Complaint (Unlimited) (Fee Applies) Christophe Stanic, *No Civil Lawsui 5/14/2021 Summons: Issued/Filed Christophe Stanic, Summons Showing 1 to 6 of 6 entries Previous 1 Next < > HEARINGS Show Search: All V entries Department Type v Date Time Case 5:21-cv-08063 Document 1-2 Filed 10/14/21 Page 4 of 4Department Type v Date Time Department 20 Conference: Case Management 9/21/2021 3:00PM Showing 1 to 1 of 1 entries Previous 1 Next « > JS-CAND 44 (Rev. 10/2020) Case 5:21-cv-0806%18?iu88$tfi §ifi8fll4/21 Page 1 of 2 The JS-CAND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service 0f pleadings or other papers as required by law, except as provided by local rules 0f court. This form, approved 1n its original form by the Judicial Conference 0f the United States 111 September 1974, ls required for the Clerk 0f Court t0 initiate the civil docket sheet. (SEE INSTRUCTIONS 0NNEXTPAGE 0F THIS FORM) I. (a) PLAINTIFFS Christophe Stanic DEFENDANTS Onhofix US LLC, formerly Onhofix Inc., Spinal Kinetics, Ina, German Spine Specialists, My Spine Solution, Ken Hiebert, ONZrOrthopadisch Neumchirug'sches Zenrum County 0f Residence of First Listed Defendant (IN US PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (IfKnown) (b) County 0f Residence 0f First Listed Plaintiff (EXCEPTIN US. PLAINTIFF CASES) Clark County, Nevada (C) Attorneys (Firm Name, Address. and Telephone Number) Gmger Plgolt, Richard Tahura I840 Century Park E. Sun: 1900 L05 Angeles, CA 90067 310-586-7700 Kat: M. Wmlake 4 Embarcadcm Centcr Sultc 3000 San Francisco, CA 9M ll 415-655-1285 Annmeys for Onhufix US LLC and Spinal Kmelics, lnc.Anthony L. Label, Steven Kronenberg The Veen Firm, P.C., 20 Haight Street, San Francisco, CA 94102, (415) 673-4800 II. BASIS OF JURISDICTION (Place an ‘X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Baxfbr Plaintlfl (For Diversity Cases Only) and One Boxfor Defendant) PTF DEF PTF DEF l U.S. Government Plaintiff 3 Federal Question - - - - r (US Government Not a Party) C1t1zen of Thls State 1 1 Incorporated or Pr1nc1pal Place 4 4 ' ' of Business In This State 2 U S G tD f d t x 4 D, ,ty Citizen of Another State x 2 2 Incotporated and Principal Place 5 x 5 . . overnmen e en an 1vers1 . ‘ ‘ ‘ . ‘ ‘ f Busmess In Another State 1 P I 11 °(ndlcaw Cltlzemhlp 0f “mes m tem I) Citizen 0r Subject of a 3 3 Foreign Nation 6 6 Foreign Country IV. NATURE 0F SUIT (Place an “X” in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES l 10 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 0f 422 Appeal 28 USC § 158 375 False Claims Act 120 Marine 3 10 Airplane x 365 Personal Injury , Product Propefiy 21 USC § 381 423 Withdrawal 28 USC 376 Qui Tam (31 USC 130 Miller Am 3 15 Airplane Product Liability Liability 690 Other § 157 § 3729(a» 14o Negotiable Instrument 320 Assault, Libel & slander 367 Health Care/ LABOR PROPERTY RIGHTS 400 State Reappommmem 150 Recovery 0f 33o Federal Employers’ Phame‘cem‘cal Eer§9na1 7 10 Fair Labor Standaxds Act 820 Copyrights 410 Am‘m‘“ _ Overpayment Of Liabili Inlury PmduCt Llablhty ' 430 Banks and Bankmg , ty . 720 Labor/Management 830 Patent Veteran s Benefits . 368 Asbestos Personal Injury . I _ 450 Commerce 1 51 Medicare Act 340 Marme product Liability Relanons 835 Patent-Abbrewated New . 345 Marine Product Liability PERSONAL PROPERTY 740 Railway Labor Act Drug Application 460 Depoflatlon 152 EggzlfKELDsifEazglzies 350 Motor Vehicle 751 Family and Medical 840 Trademark 470 RaCketeer Inflgen‘fied & M r hi 1 pr 370 Other Fraud Leave Act 880 Defend Trade Secrets corrupt orgamzauonsVeterans) 355 oto Ve c e oduct , , . 1 53 Recovery of Liability 371 Truth m Lendmg 79o Other Labor Litigation Act of 2016 430 Consumer Cred“ Ove a em 360 Other personal Injury 380 Other Personal Property 791 Employee Retirement SOCIAL SECURITY 485 Telephone Consumerrp {,m 362 Personal In‘u -Medica1 Damage Income security ACt Pretecmm ACt 0fveteran s Benefits Malpracticje ry 385 Property Damage Product I IGRATION 861 HIA (”95$ 490 Cable/Sat TV 160 Stockholders Sults Llablllty I H I . . 862 BlaCk Lung (923) 850 SecufitieS/Commodifies/ 190 Other Contract CIVIL RIGHTS PRISONER PETITIONS 462 Namlgallgauon 363 Dlwc/DIWW (405(9) Exchange 195 C tr tP d tL' b'l' Applcatlon ' r 196 Ffarrllcfge r0 uc 1a 1 lty 440 Other civil Rights HABEAS CORPUS 465 Other Immigration . :2: :SSIIDHEEI: §VI 890 Other Statutory Actlons . . . . g 891 Agricultural Acts 441 Votlng 463 Allen Detamee Actlons _ REAL PROPERTY 442 Employment 51 0 Motions t0 Vacate ‘ FEDERAL TAX SUITS 893 Env1ronmental Matters 210 Land condemnation 443 HOUSing/ sentence 870 Taxes (U.S. Plaintiff or 895 Free‘iom 0f Informanon 220 Foreclosure Accommodations 530 General I Defendant) Act. r 230 Rent Lease & Ejectmem 445 Amer. w/Disabih'tim- 535 Death Penalty 871 IRsiThird Pany 26 usc 396 Arblfrétloé 240 Torts to Land Empbyment OTHER § 7609 899 Adl‘nlmstfatlve Procedure - - r 446 Amer. w/Disabimies-Other AC‘ReV‘eW f". Appeal 0f 245 T011 PFOduCt Llablllty I 540 Mandamus & Other Agency Dealsmn 290 A11 Other Real Property 448 Educamn 550 Civil Rights 950 Constitutionality of State 555 Prison Condition Statutes 560 Civil Detainee- Conditions of Confinement V. ORIGIN (Place an ”X" in One Bax Only) 1 Original X 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict Proceeding State Court Appellate Court Reopened Another District (specifil) Litigation-Transfer Litigation-Direct File VI. CAUSE OF Cite the U.S. Civil Statute under Which V0u are filing (D0 nut cite iurisdictionul statutes unless diversitv): 28 U.S.C. 1332, 1441, d 1446ACTION . §.§ . a“ Brlef descrmtlon 0f cause: Product liability claim regarding alleged defective medical device. VII. REQUESTED IN CHECK 1F THIS Is A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, Fed. R. Civ. P. JURY DEMAND: x Yes No VIII. RELATED CASE(S)’ JUDGE DOCKET NUMBER IF ANY (See instructions): IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2) (Place an “X” in One Box Only) SAN FRANCISCO/OAKLAND X SAN JOSE EUREKA-MCKINLEYVILLE DATE 10/14/2021 SIGNATURE OF ATTORNEY OF RECORD /s Kate M. Wittlake JSCANDMWJO/zozo) Case 5:21-cv-08063 Document1-3 Filed 10/14/21 Page20f2 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-CAND 44 Authority For Civil Cover Sheet. The JS-CAND 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference 0f the United States in September 1974, is required for the Clerk 0f Court to initiate the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. a) b) C) II. III. VI. VII. VIII. Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County 0f Residence. For each civil case filed, except U.S. plaintiff cases, enter the name ofthe county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name 0f the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them 0n an attachment, noting in this section “(see attachment)” Jurisdiction. The basis ofjurisdiction is set forth under Federal Rule 0f Civil Procedure 8(a), which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis ofjurisdiction, precedence is given in the order shown below. (1) United States plaintiff. Jurisdiction based on 28 USC §§ 1345 and 1348. Suits by agencies and officers of the United States are included here. (2) United States defendant. When the plaintiff is suing the United States, its officers 0r agencies, place an “X” in this box. (3) Federal question. This refers to suits under 28 USC § 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act 0f Congress or a treaty 0f the United States. In cases where the U.S. is a party, the U.S. plaintiff 0r defendant code takes precedence, and box 1 or 2 should be marked. (4) Diversig of citizenship. This refers t0 suits under 28 USC § 1332, where parties are citizens ofdifferent states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) Residence (citizenship) 0f Principal Parties. This section of the JS-CAND 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient t0 enable the deputy clerk 0r the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature 0f suit, select the most definitive. Origin. Place an “X” in one 0f the six boxes. (1) Original Proceedings. Cases originating in the United States district courts. (2) Removed from State Court. Proceedings initiated in state courts may be removed t0 the district courts under Title 28 USC § 1441. When the petition for removal is granted, check this box. (3) Remanded from Appellate Court. Check this box for cases remanded to the district court for further action. Use the date ofremand as the filing date. (4) Reinstated or Reopened. Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. (5) Transferred fiom Another District. For cases transferred under Title 28 USC § 1404(a). D0 not use this for within district transfers or multidistrict litigation transfers. (6) Multidistrict Litigation Transfer. Check this box when a multidistrict case is transferred into the district under authority 0f Title 28 USC § 1407. When this box is checked, do not check (5) above. (8) Multidistrict Litigation Direct File. Check this box when a multidistrict litigation case is filed in the same district as the Master MDL docket. Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute. Cause 0f Action. Report the civil statute directly related to the cause 0f action and give a brief description ofthe cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC § 553. Brief Description: Unauthorized reception 0f cable service. Requested in Complaint. Class Action. Place an “X” in this box ifyou are filing a class action under Federal Rule of Civil Procedure 23. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jug Demand. Check the appropriate box to indicate whether or not a jury is being demanded. Related Cases. This section 0f the JS-CAND 44 is used t0 identify related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Divisional Assignment. If the Nature of Suit is under Property Rights or Prisoner Petitions or the matter is a Securities Class Action, leave this section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: “the county in which a substantial part of the events or omissions which give rise t0 the claim occurred or in which a substantial part of the property that is the subject of the action is situated.” Date and Attorney Signature. Date and sign the civil cover sheet.
