NoticeCal. Super. - 6th Dist.September 16, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV388667 Santa Clara - Civil Carolyn Taylor, Esq., SBN 159347 Douglas Chapman, Esq., SBN 175756 CLARK HILL LLP One America Plaza 600 West Broadway, Suite 500 San Diego, CA 92101 Telephone: (619) 557-0404 Facsimile: (619) 557-0460 CTaylor@ClarkHill.com DChapman@ClarkHill.com Attorneys for Defendants, MIRADRY, INC. and SIENTRA, INC. R. Arag Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/22/2021 8:27 PM Reviewed By: R. Aragon Case #21 CV388667 Envelope: 7720074 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA LISA AUTHEMENT, an individual, Plaintiff, V. MIRADRY, INC., a Delaware corporation With its principal place of business in California; SIENTRA, INC, a Delaware corporation with its principal place of business in California; and DOES 1 t0 100 inclusive, Defendants. TO PLAINTIFF LISA AUTHEMENT AND Case N0. 2 1 CV388667 NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL OF ACTION TO FEDERAL COURT U.S. District Court, Northern District of California, Case No.5 :2 1 -cv-09053 Action Filed: September 16, 2021 Action Removed: Trial Date: None Set THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF SANTA CLARA: PLEASE TAKE NOTICE that 0n November 22, 2021, defendants MIRADRY, INC. and SIENTRA, INC. filed a Notice of Removal with the Clerk 0f the United States District Court for the Northern District of California, removing this action to 1446, and initiating Case N0. 5:21-cv-09053. that court pursuant t0 28 U.S.C. §§ 1332, 1441, A true and correct copy 0f the Notice of Removal and all associated documents filed With the United States District Court Case N0. 5:21-CV-09053 1 , is attached hereto as Exhibit A. The instant 3n DEFENDANTS’ NOTICE TO ADVERSE PARTY U‘IAUJN KOOONON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice To Adverse Party And State Court Of Removal Of Action To Federal Court and Exhibit A are also served upon Plaintiff Lisa Authement herewith. PLEASE TAKE FURTHER NOTICE that pursuant to 28 U.S.C. § 1446, the filing 0f the Notice of Removal in the United States District Court for the Northern District 0f California, together with the filing of the notice with this Court, effects the removal of this action and the Superior Court shall proceed no further unless and until the case is remanded. Dated: November 22, 2021 CLARK HILL LLP Carolyn Taylor Douglas M. Chapman Attorneys for Defendants, MIRADRY INC., SIENTRA INC. 2 DEFENDANTS’ NOTICE TO ADVERSE PARTY UI-bbJN \OOONON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Lisa Authement v. MiraDry, et a1. Santa Clara Superior Court, Case N0. 2] CV388667 I, the undersigned, am an employee ofCLARK HILL LLP, located at 600 West Broadway, Suite 500, San Diego, California 92101. I am over the age 0f eighteen (18) and not a party to this matter. On November 22, 2021, I served the document(s) listed below as follows: NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL OF ACTION TO FEDERAL COURT t0 the following party(ies) in this matter: Gregory Bentley, Esq. Attorneysfor Plaintifl Michael McDonald, Esq. LISA AUTHEMENT Famaz Salessi, Esq. BENTLEY & MORE 4931 Birch Street Newport Beach, CA 92660 Tel: (949) 870-3800 X211 Fax: (949) 732-6291 Email: gbentlev@bentlevmore.com mmcdonald@bentlevmore.com fsalessi@bentlevmore.com clucich@bentlevmore.com vrobles@bentlevmore.com trodriguez@bentlevmore.com hmendoza@bentlevmore.com D BY PERSONAL SERVICE: I caused the foregoing document(s) t0 be personally delivered to the above addressee(s) by First Legal Network via a registered process server pursuant to C.C.P. § 101 1. D BY U.S. MAIL: Ienclosed the foregoing document(s) in a sealed envelope to the addressee(s) above and, under the firm’s ordinary course ofbusiness, placed said envelope(s) for pick up and mailing pursuant to C.C.P. § 1013. I am readily familiar with the firm’s practice of processing outgoing mail, under Which outgoing mail is deposited for pickup by the U.S. Postal Service 0n the same day stated in the proof of service, with postage fillly prepaid, at San Diego, California. D BY OVERNIGHT DELIVERY (VIA FEDEX): I enclosed the foregoing documents in a sealed envelope or package to the addressee(s) listed above and placed said envelope or package for pick up for overnight delivery Via FedEx under the firm’s ordinary course of business. I am familiar with the firm’s practice 0f collecting and processing correspondence for overnight delivery Via FedEx. Under that practice, the envelope or package would be deposited for pick up by an authorized FedEx courier or driver that same day at San Diego, California and delivered to the addressee(s) the following business day pursuant t0 C.C.P. § 1013. E BY ELECTRONIC SERVICE/EMAIL: I electronically filed the document(s) with this Court using the Court’s designated electronic filing service provider, which sent notification of that filing to the person(s) listed above to accept service by electronic transmission, and/or I caused the document(s) to be transmitted through Clark Hill LLP’s electronic mail system from bgonzales@clarkhill.com to the email addresses set forth above pursuant to C.C.P. §§ 1010.6 and 1013(g), Cal. Rule of Court 2.251, and/or agreement or stipulation between the parties. 1 PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on November 22, 2021, at San Diego, California. Bernadette Gonzales 2 PROOF OF SERVICE EXHIBIT “A” L \DOONQU‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-09053 Document 1 Filed 11/22/21 Page 1 of 7 Carolfn Taylor, Es ., SBN 159347 Doug as Chapman, sq. SBN 175756 Geor es Haddad, Esq., §BN 241785 CLA HILL LLP One America Plaza . 600 West Broadway, Sulte 500 San Dlego, CA 92101 Telephqne: 619 557-0404 Facs1mlle: 619 .557-0460 CTaylor@Clark 111.90m DChapman@ClarkH111.com GHaddad@ClarkHill.com Attorne s for Defendants, MIRA RY, INC. and SIENTRA, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA LISA AUTHEMENT, an individual, Plaintiff, V. MIRADRY, INC” a Delaware corporatlon Wlth 1ts pr1n01 a1 lace 0f busmess in Caliform'a; SI .N . ,_INC., a Delaware corporatlon w1th.1ts pr1n01pa1 lace 0f busmess 1n Califorma; and OES 1 to 100 inclusive, Defendants. Case No. Santa Clara County Superior Court Case No. 21CV388667) DEFENDANTS MIRADRY, INC. AND SIENTRA, INC.’S NOTICE OF REMOVAL PURSUANT TO 28 U.S.C. §§ 1332 AND 1441 Complaint Filed: September 16, 2021 TO THE COURT, PLAINTIFFS, AND COUNSEL OF RECORD: PLEASE TAKE NOTICE that defendants MIRADRY, INC. (“miraDry”) and SIENTRA, INC. (“Sientra”) (collectively, “Defendants”) hereby remove the above- entitled civil action from the Superior Court 0f California for the County of Santa Clara t0 the United States District Court for the Northern District of California pursuant t0 28 U.S.C. §§ 1332 and 1441. Removal is proper because complete diversity 0f citizenship exists between plaintiffLISA AUTHEMENT (“Plaintiff”), on one hand, and Defendants on the other hand, and the amount in controversy exceeds the sum of $75,000, exclusive DEFENDANTS’ NOTICE OF REMOVAL OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-09053 Document 1 Filed 11/22/21 Page 2 of 7 0f interest and costs. In support 0f this Notice of Removal, Defendants fithher state: I. BACKGROUND 1. On September 16, 2021, Plaintiff filed a complaint (“Complaint”) in the Superior Court 0f California for the County of Santa Clara, captioned Lisa Authemem‘ v. Miradry, Ina, et al., Case Number 21CV388667. By way 0f her Complaint, Plaintiff alleges claims for Strict Products Liability, Negligent Products Liability, Negligence, Intentional Misrepresentation/Concealment, and Negligent Misrepresentation/Conceal- ment. 2. On October 21, 2021, Plaintiff served Defendants With the Complaint. A true and correct copy of the Summons, Complaint, Civil Case Cover Sheet and Civil Lawsuit Notice are attached to the Declaration of Georges Haddad as Exhibit 1. II. TIMELINESS OF REMOVAL 3. This Notice ofRemoval is timely because it is being filed Within thirty days 0f Plaintiff’ s service 0f the Complaint, and within one year ofthe commencement of this action pursuant to 28 U.S.C. § 1446(b). (See Declaration of Georges Haddad filed concurrently herewith [“Haddad Dec.”], EX. 1, Plaintiff’s Complaint.) III. PROCEEDINGS IN STATE COURT 4. As 0f the date of filing this Notice of Removal, there are n0 pending hearings before the Superior Court of California for the County of Santa Clara With respect to the state court action, other than a Case Management Conference, Which is set for February 8, 2022. (Haddad Dec., 1] 4.) IV. JURISDICTION BASED ON DIVERSITY OF CITIZENSHIP 5. The Court has original jurisdiction of this action under 28 U.S.C. § 1332. As described in further detail below, this action is removable pursuant to the provisions 0f 28 U.S.C. § 1441(b) in that it is a civil action between citizens 0f different states and the matter in controversy exceeds the sum 0f $75,000, exclusive 0f interests and costs. 2 DEFENDANTS’ NOTICE OF REMOVAL OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-09053 Document 1 Filed 11/22/21 Page 3 of 7 A. Complete Diversity Exists Between Plaintiffs and Defendants 6. Plaintiff Lisa Authement is a citizen of Mississippi. For purposes of removal, a natural person is considered a citizen of the state of domicile. Kantor v. Wellesley Galleries, Ltd, 704 F.2d 1088, 1090 (9th Cir. 1983). On information and belief, Plaintiff is and was at time of filing this action a citizen ofthe state of Mississippi. (Haddad Dec., EX. 1, at 1] 22.) 7. Defendant miraDrV is a citizen 0f Delaware and California. A corporation is deemed a citizen 0f every state in which it is incorporated and has its pn'ncipal place ofbusiness. 28 U.S.C. § 1332(c)(1). miraDry is, was, and at all times relevant, has been a corporation incorporated under the laws 0f the state 0f Delaware. (Haddad Dec., 1] 5.) miraDry’s principal place of business is in Santa Clara, California. (Haddad Dec., fl 5.) 8. Defendant Sientra is a citizen 0fDelaware and California. A corporation is deemed a citizen 0f every state in which it is incorporated and has its principal place of business. 28 U.S.C. § 1332(c)(1). Sientra is, was, and at all times relevant, has been a corporation incorporated under the laws of the state 0f Delaware. (Haddad Dec., 1] 6.) Sientra’s principal place ofbusiness is in Santa Barbara, California. (Haddad Dec., 1] 6.) 9. Citizenship of DOE defendants are disregarded. The citizenship 0f fictitious and unknown defendants should be disregarded for purposes of establishing removaljurisdiction under 28 U.S.C. § 1332. See 28 U.S.C. § 1441(b) (1) (stating, “[i]n determining whether a civil action is removable on the basis 0f the jurisdiction under section 1332(a) of this title, the citizenship 0f defendants sued under fictitious names shall be disregarded”). The existence ofDOE defendants 1 through 100 does not deprive this Court ofjurisdiction. 10. Because Plaintiff is a citizen 0f the state of Mississippi and Defendants are citizens 0f Delaware and California, complete diversity between Plaintiff on the one hand and Defendants on the other exists. B. The Amount in Controversy Exceeds $75,000 11. While Defendants deny liability as t0 Plaintiff’s claims, the amount in 3 DEFENDANTS’ NOTICE OF REMOVAL OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-09053 Document 1 Filed 11/22/21 Page 4 of 7 controversy requirement is satisfied because “it is more likely than not” that the amount exceeds the jurisdictional minimum of $75,000. See Sanchez v. Monumental Life Ins., 102 F.3d 398, 403-404 (9th Cir. 1996) (finding the defendant must plead “that it is ‘more likely than not’ that the amount in controversy exceeds [the threshold] amount” (internal quotations and citations omitted». 12. As the Ninth Circuit explains, “the amount-in-controversy inquiry in the removal context is not confined t0 the face of the complaint.” Valdez v. Allstate Ins. C0., 372 F.3d 1115, 1117 (9th Cir. 2004). In order to establish the amount in controversy, a defendant may state underlying facts supporting its assertion that the amount exceeds the jurisdictional threshold. Gaus v. Miles, Ina, 980 F.2d 564, 566-567 (9th Cir. 1992). 13. In determining the amount in controversy, a court must consider the aggregate 0f general damages, special damages, punitive damages, and attorneys’ fees. Conrad Assocs. v. Hartford Accident & Indemnity C0,, 994 F.Supp. 1196, 1198 (N.D. Cal. 1998). When a defendant seeks removal 0n diversity grounds, a court must deem the amount demanded by the plaintiff as the amount in controversy. 28 U.S.C. § 1146(2); see also Sanchez, 102 F.3d at 40 (finding “the sum claimed by the plaintiff controls,” unless it appears “that the claim is really for less than the jurisdictional amount” (quoting St. Paul Mercury Indem. C0. v. Red Cab C0., 303 U.S. 283, 288-289 (1938)). 14. If the plaintiff does not include a demand amount in the complaint, the jurisdictional threshold may be established by other documents such as a plaintiff’s statement 0f damages 0r pre-litigation settlement demands. See e.g. Babasa v. Lenscrafters, Ina, 498 F.3d 972, 974-975 (9th Cir. 2007) (“[a] settlement letter is relevant evidence 0f the amount in controversy if it appears to reflect a reasonable estimate 0f the plaintiff’s claim” (citing Cohn v. Petsmart, Ina, 281 F.3d 837,840 (9th Cir. 2002)); Aparicio v. Abercrombie & Fitch Stores Ina, 2014 WL 545795, *3 (CD. Cal . 2014) (“[a] document reflecting a settlement demand in excess of the jurisdictional minimum constitutes ‘other paper’ sufficient t0 provide notice that a case is removable”). 4 DEFENDANTS’ NOTICE OF REMOVAL OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-09053 Document 1 Filed 11/22/21 Page 5 of 7 15. Plaintiff‘s Complaint includes allegations for past and future medical expenses, personal injury including “gaping, infection-filled ulcers” causing “immense pain”, “severe burns and infection, permanent scarring” and “nerve damage,” general damages for pain and suffering, and punitive 0r exemplary damages. Although Plaintiff did not allege a specific amount for her alleged damages 0r file a statement of damages in connection With her Complaint, the types of claims alleged and consideration 0f the facts underlying the liability claims establishes, by a preponderance 0f the evidence, that the alleged amount in controversy exceeds the sum 0f $75,000, exclusive of interest and costs, as required by 28 U.S.C. § 1332(a). The jurisdictional minimum is, therefore, satisfied. V. VENUE 16. Without waiving Defendants’ right t0 challenge, among other things, personal jurisdiction by way 0f motion, responsive pleadings, 0r otherwise, venue for this removed action lies in the Northern District of California pursuant t0 28 U.S.C. §§ 1441, 1446(a), and 84(c). Plaintiffbrought this action in the Superior Court 0f the State of California, County of Santa Clara, which is located Within the Northern District 0f the State of California. Venue is proper in this Court because it is the “district and division embracing the place Where such action is pending.” 28 U.S.C. § 1441(a). VI. SERVICE OF NOTICE OF REMOVAL ON PLAINTIFFS AND THE CLERK OF THE SUPERIOR COURT 17. Pursuant to 28 U.S.C. § 1446(d), written notice of the filing of this Notice 0f Removal Will be promptly served on Plaintiff and, together With a copy of the Notice 0f Removal, will be filed With the Clerk 0f the Superior Court of the State of California, County 0f Santa Clara, in the state court action. 18. This Notice 0f Removal Will be served 0n counsel for Plaintiff. A copy of the Proof 0f Service regarding the Notice of Removal will be filed shortly after those papers are filed and served. /// 5 DEFENDANTS’ NOTICE OF REMOVAL OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-09053 Document 1 Filed 11/22/21 Page 6 of 7 19. In compliance with 28 U.S.C. § 1446(a), true and correct copies 0f all process, pleadings, and orders filed and/or served in this action are attached t0 the Haddad Declaration as Exhibit 1. VII. PRAYER FOR REMOVAL 20. WHEREFORE, Defendants file this Notice 0f Removal of this action from the Superior Court of the State of California, County 0f Santa Clara, in Which it is now pending, to the United States District Court for the Northern District of California. 21. Defendants hereby request that this Court exercise jurisdiction over all further proceedings in this action. 22. Defendants hereby provide notice 0f and demands a jury trial in the above- captioned matter. Dated: November 22, 2021 CLARK HILL LLP By: /s/ Georges Haddad Carolyn Taylor Douglas M. Chapman Georges Haddad Attorneys for Defendants, MIRADRY INC., SIENTRA INC. 6 DEFENDANTS’ NOTICE OF REMOVAL \OOOflmUl-bUJNr-t NNNNNNNNNHHHHHr-tp-AHp-Ap-i OOQO‘xUI-RUJNHOKOOOQONUIAUJNHO Case 5:21-cv-09053 Document 1 Filed 11/22/21 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on this 22nd day ofNovember, 202 1 , I will electronically file the foregoing with the Clerk 0f the Court using the CM/ECF system, Which Will then be sent Electronically t0 the registered participants as identified 0n the Notice of Electronic Filing (NEF) and paper copies will be sent by first class mail to any counsel of record indicated as non-registered participants. Dated: November 22, 2021 Grp ory L. Bentley, Esq. M10 ael McDonald, Esq. Claire H. Lucich, Esq. Famaz Salessi, Es . BENTLEY & MO E LLP 4931 Birch Street New ort Beach, California 92660 T: 9 9-870-3800 F: 949-732-6291 bgentlev@bentlevmore.com mquonéld@bentlevmore.com cluelch@bentlevmore.com fsale531@bentlevmore.com /s/ Georges Haddad Georges Haddad LISA A l CERTIFICATE OF SERVICE
