notice to state court and adverse party of removal of action to federa

Cal. Super. - 1st Dist.October 22, 2019

1 RAINES FELDMAN LLP Phillip R. Maltin (State Bar No. 153606) 2 pmaltin@raineslaw.com Ricardo Rozen (State Bar No. 279151) 3 rrozen@raineslaw.com 1800 Avenue of the Stars, 12th Floor 4 Los Angeles, California 90067 Telephone: (310) 440-4100 5 Facsimile: (310) 691-1943 6 Attorneys for Defendant 90 SECONDS, INC. 7 8 9 10 11 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO - CIVIC CENTER COURTHOUSE FREDERIC DOMINION!, an individual, Plaintiff(s), V, 90 SECONDS, INC. a Delaware Case No.: CGC-19-576484 [ Assigned for all purposes to the Hon. Garrett L. Wong, Room 610} 14 corporation; and DOES 1 through 25, inclusive, NOTICE TO STATE COURT AND ADVERSE PARTY OF REMOVAL OF ACTION TO FEDERAL COURT UNDER 28 U.S.C. § 144l(B) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant(s) Complaint Filed: June 5, 2019 Trial Date: None TO THE CLERK OF THE ABOVE ENTITLED COURT AND TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTIE that on July 15, 2019, Defendant 90 Seconds, Inc. filed the United States District Court for the Northern District of California a Notice of Removal of this action to the District Court. A copy of the Notice of Removal is attached hereto as Exhibit "1". PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. § 14446(d), the filin of the Notice of Removal in the United States District Court, together with the filing of a copy of this Notice of Removal with the Superior Court, effectuates the removal of this action. Accordingly, the above-captioned court may proceed no further unless and until the case is remanded. 1985311, I -1- NOTICE TO STATE COURT AND ADVERSE PARTY OF REMOVAL OF ACTION TO FEDERAL COURT UNDER 28 U.S.C. § 144l(B) ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 07/31/2019 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk 1 2 ,, .) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July 31, 2019 19853 11.1 RAINES FELDMAN LLP By ~ Phi1lip R. Maltin Ricardo Rozen Attorneys for Defendant 90 SECONDS, INC. -2- NOTICE TO STATE COURT AND ADVERSE PARTY OF REMOVAL OF ACTION TO FEDERAL COURT UNDER 28 U.S.C. § 1441(8) EXHIBIT A. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:19-cv-04056 Document 1 Filed 07/15/19 Page 1 of 8 RAINES FELDMAN LLP Phillip R. Maltin (State Bar No. 153606) pmaltin@r.aineslaw.com Ricardo Rozen (State Bar No. 279151) rrozen@r.aines law. corn 1800 Avenue of the Stars, 12th Floor Los Angeles, California 90067 Telephone: (310) 440-4100 Facsimile: (310) 691-1943 Attorneys for Defendant 90 SECONDS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA · SAN FRANCISCO DIVISION FREDERIC DOMINIONI, an individual, Plaintiff( s ), v. 90 SECONDS, INC. a Delaware 9orpo~ation; and DOES 1 through 25, mclus1ve, Defendant(s) Frederic Dominion/ v. 90 Seconds, Inc. Case No.: Case No.: DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA PURSUANT TO 28 U.S.C. SECTIONS 1332, 1441(a) AND (b) (Removalfrorn San Francisco County Superior Court, Case No. CGC-19-576484) (Civil Case Cover Sheet; Notice of Interested Parties; Declaration a/Timothy Norton; and Declaration of Ricardo Rozen filed concurrently herewith) Complaint filed: Trial Date; June 5, 2019 None yet 1 DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACTION TO TIIB UNITED STATES DISTRICT COURT FOR THE NORTHBRN DISTRICT OF CALIFORNIA Case 3:19-cv-04056 Document 1 Filed 07/15/19 Page 2 of 8 1 TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN 2 DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION: 3 PLEASE TAKE NOTICE that Defendant 90 Seconds, Inc., a Delaware 4 corporation ("Defendant") removes the above-entitled action to this Court from the 5 Superior Court of the State of California, County of San Francisco. 6 Summary of Bases for Removal 7 Plaintiff filed a lawsuit on June 5, 2019, in the Superior Court of the State of 8 California, County of San Francisco, Frederic Dominioni v. 90 Seconds, Inc.; and Does 1 9 through 25, case number CGC-19-576484 (the "Action"). The Summons and Complaint 10 is annexed to this Notice collectively as Exhibit "A.'' Plaintiff served the summons and 11 complaint in the Action on approximately June 13, 2019, with copies delivered to 12 Defendant's registered agent for service of process. Rozen Deel., ,r2. Defendant has not 13 responded to the Complaint. No other process, pleadings, or orders have been filed or 14 served in this action. See 28 U.S.C. § 1446(a). 15 GROUNDS FOR REMOVAL 16 DIVERSITY JURISDICTION 17 The Federal District Court has jurisdiction over the Action under 28 U.S.C. section 18 1332. Federal law, 28 U.S.C. section 144l(b), permits Defendant to remove the Action 19 because the amount in controversy exceeds $75,000, exclusive of interest and costs, and 20 the action is between citizens of different states. Plaintiff is a citizen of the State of 21 California residing in Santa Clara County now and at the time he filed the Action. 22 Complaint at 'If 1. He is a citizen of the State of California. 23 A corporation is a citizen of the state incorporating it and where it has its principal 24 place of business. 28 U.S.C. § 1332(c). A corporation's principal place of business is the 25 location of its "nerve center" Hertz Corp. v. Friend, 559 U.S. 77 (2010). Defendant is not 26 and was not, at the time Plaintiff filed the Action, a citizen of California. Declaration of 27 Timothy Norton in Support of Defendants' Motion for Removal ("Norton Deel."), '1['1[2-15. 28 The State of Delaware incorporated Defendant. Norton Deel., '1[3. Defendant's "nerve Frederic Dominion/ v. 90 Seconds, Inc. Case No.: 2 DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACT!ONTO THE UNITED STATES OISTRJCT COURT FOR THE NORTHERN DISTRJCT OF CALlFORNIA Case 3:19-cv-04056 Document 1 Filed 07/15/19 Page 3 of 8 1 center" is in Singapore. Norton Deel., ,rl I. The California Secretary of State lists Timothy 2 Norton as Defendant's CEO. Mr. Norton is based out of Singapore as is a large portion of 3 the executive team directing and supervising the activities of Defendant. Defendant's 4 high-level officers direct, control and coordinate Defendant's activities from Singapore. 5 In short, this is an action between Plaintiff, a California citizen, and Defendant, a 6 citizen of Delaware and Singapore. The District Court has original jurisdiction· of this 7 lawsuit. 8 AMOUNT IN CONTROVERSY 9 In determining whether the amount in controversy exceeds $75,000.00, the court 10 must presume Plaintiff will prevail on his claims. Kenneth Rothschild Trust v. Morgan 11 Stanley Dean Witter, 199 F.Supp.2d 993, lOOl(C.D. Cal. 2002), citing Burns v. {Vindsor 12 Ins. Co., 31 F.3d 1092, I 096 (! 1th Cir. 1994) (the amount in controversy analysis presumes 13 "plaintiff prevails on liability") and Angus v. Shiley Inc., 989 F.2d 142, 146 (3rd Cir. 1993) 14 ("the amount in controversy is not measured by the low end of an open-ended claim, but 15 rather by reasonable reading of the value of the rights being litigated"). The court may also 16 consider the argument and facts in this Notice, Cohn v. Petsmart, Inc., 281 F.3d 837,840, 17 n. l (9th Cir. 2002), citing Willingham v. Morgan, 395 U.S. 402, 407 n.3 (1969). The 18 amount in controversy may include general and special damages and attorneys' fees the 19 Plaintiff may recover by statute, Galt GIS v. JSS Scandinavia, 142 F.3d 1150, 1155-56 20 (9th Cir. 1998). 21 Defendant need only establish it more probable than not that the Plaintiff's claims 22 exceed the jurisdictional minimum. Guglielmina v. McKee Foods, Corp, 506 F.3d 696, 23 699 (9th Cir. 2007); Sanchez v. Monumental Life Ins. Co., 95 F.3d 856, 860-61 (9th Cir. 24 1996). The amount in controversy exceeds $75,000.00, as shown by the total of each 25 category of damage, .below. 26 Alleged Lost Wages 27 Plaintiff alleges Defendant wrongfully terminated his employment after he requested 28 medical leave in March 2019. Exh, A, ,r 10. Plaintiff earned a base salary of $160,000 plus Frederic Dominion/ v. 90 Seconds, Inc. Case No.: 3 DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case 3:19-cv-04056 Document 1 Filed 07/15/19 Page 4 of 8 1 commissions while working for Defendant. Norton Deel. ~16. Plaintiff's lost earnings to 2 date is at least $40,000.00 ($13,333.33 per month for three months from March 15, 2019 3 to June 15, 2019). Assuming he dcies not mitigate his damages, Plaintiffs lost wages will 4 continue to increase through the date of trial. Courts have found similar amounts of lost 5 wages in employment-related actions meet the amount in controversy threshold. See 6 Simmons v. PCR Tech., 209 F. Supp.2d 1029, 1032 (N.D. CaL 2002). This amount is in 7 addition to lost benefits claimed by Plaintiff. The alleged lost wages to date is at least 8 $40,000. 9 General Damages 10 "If uncontested, the courts will accept the plaintiffs good faith allegation of the 11 amount in controversy .... " Rexford Rand Corp. v. Ancel, 58 F.3d 1215, 1218 (7th 12 Cir.1995) Plaintiff alleges that his general damages total at least $50,000. Plaintiff states 13 he is entitled to "at least $25,000," in his Fourth Cause of Action, to compensate him for 14 Defendant's alleged failure to engage in the interactive process to determine whether a 15 reasonable accommodation exists to help Plaintiff perform the core duties of his job. Exh. 16 A, ~ 43. Plaintiff alleges, in his Fifth Cause of Action, he is entitled to "at least" another 17 "$25,000" to compensate him for alleged disability discrimination. Plaintiff alleges 18 $50,000 in general damages over two causes of action. 19 Claim for Unreceived Wages 20 Plaintiff also sues for alleged violations of the California Labor Code (Exh. A, 121 ). 21 He claims Defendant owes him unpaid wages. Plaintiff does not state the amount of wages 22 he claims Defendant owes. However, Plaintiff sues to recover those alleged unpaid 23 amounts. Cal. Lab. Code§ 225.5. If Plaintiff succeeds on this claim, the verdict against 24 Defendant would include penalties of $200 and 25% of the amount withheld ( Cal. Lab. 25 Code§ 225.5(b)). 26 Plaintiff also seeks waiting-time penalties ofup to 30 days of salary. Cal. Lab. Code 27 § 203. Plaintiffs daily rate of pay (without commissions) is allegedly $615.38. To 28 determine the daily rate, we divided Plaintiff's annual salary of $160,000 by 52 weeks, and Frederic Domlnloni v. 90 Seconds, Inc. Case No.; 4 DEFENDANT'S NOTICE OF REMOVAL OF CML ACTION TO THE UNITED STATES DISTRICT COliRT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case 3:19-cv-04056 Document 1 Filed 07/15/19 Page 5 of 8 1 then by 5 days. Alleged waiting time penalties equal $18,461.53 (the $615.38 daily rate 2 multiplied by 30 days). 3 Punitive Damages 4 "Where punitive damages are required to satisfy the jurisdictional requirement in a 5 diversity case, a two-part inquiry is necessary. The first question is whether punitive 6 damages are recoverable as a matter of state law." Anthony v. Security Pac. Fin. Serv., 75 7 F.3d 311, 315 (7th Cir. 1995). Plaintiff seeks punitive damages. Exh. A, ,r,r37 & 44; Cal, 8 Civ. Code § 3294; Commodore Home Sys., Inc. v. Superior Ct, (Brown), 32 Cal.3d 211 9 (1982). "If the answer is yes, the court has subject matter jurisdiction unless it is clear 10 'beyond a legal certainty that the plaintiff would under no circumstances be entitled to 11 recover the jurisdictional amount.' " 75 F.3d at 315. Assuming a conservative recovery, 12 a 1 to 1 ratio of punitive damages to general damages, Plaintiff would recover $90,000.00 13 in punitive damages. 14 Attorneys' Fees 15 When a statute permits a party to recover attorney's fees, a defendant may use a 16 reasonable estimate of that amount in calculating the amount in controversy. Missouri 17 State Life Ins. Co, v. Jones, 290 U.S. 199,202 (1933); Galt v. JSS Scandinavia, 142 F. 3d 18 1150, 1155 (2008). Plaintiff alleges that California Labor Code (section 2802(c); Exh. A, 19 ~ 29) and California Government Code (section Government Code section 12965(6)), 20 pennit him to receive attorneys' fees. Assuming a conservative hourly attorney fee of 21 $350, and further, conservatively estimating 150 hours oflegal work, Plaintiff's attorneys' 22 fees through verdict could exceed $50,000.00. 23 24 Amount in Controversy Conservatively estimated, Plaintiff's damages may total $180,000. Thus, his 25 allegations satisfy the jurisdictional prerequisite for amount in controversy. It cannot be 26 said to a legal certainty that Plaintiff would not be entitled to recover the jurisdictional 27 amount. Anthony v. Security Pacific Financial Services, Inc., 75 F.3d 311,315 (7th Cir. 28 1996); Watson v. Blankenship, 20 F.3d 383, 386-87 (10th Cir. 1994). Therefore, the Frederic Dominioni v. 90 Seconds, Inc. Case No.: 5 DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACTION TO THE l}N!TED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case 3:19-cv-04056 Document 1 Filed 07/15/19 Page 6 of 8 1 alleged claims, and fees requested in Plaintiffs Complaint demonstrate the amount in 2 controversy in this case exceeds the requirements under 28 U.S.C. §1332(a), 3 4 1. REMOVAL JURISDICTION This Notice of Removal is filed within thirty (30) days of Defendant's notice 5 of their ability to remove. This Notice therefore is filed within the time period provided 6 by 28 U.S.C. §1446(6)(3). 7 2, Venue lies in the United States District Court for the Northern District of 8 California, San Francisco Division, pursuant to 28 U.S.C. §§ 1391(a) and 1441(6), because 9 the state court action was filed in this District and this is the judicial district in which the 10 action arose, 11 WHEREFORE, Defendant prays that the above-action now pending against it in the 12 Superior Court of the State of California, County of San Francisco, be removed to this 13 Court. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: July 15, 2019 Frederic Domtnioni v, 90 Seconds, Inc. Case No,: RAINES FELDMAN LLP By: /s/ Phillip Maltin Phillip R. Maltin Ricardo Rozen Attorneys for Defendant 90 SECONDS, INC. 6 DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case 3:19-cv-04056 Document 1 Filed 07/15/19 Page 7 of 8 1 CERTIFICATE OF SERVICE 2 I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years, and not a party to the within action. My business address 3 is Raines Feldman LLP, 1800 Avenue of the Stars, 12th Floor, Los Angeles, California 90067-1623. 4 On July 15, 2019, I served the within document(s) on all interested parties in 5 this action by placing a true copy thereof enclosed in a sealed envelope addressed as shown on the attached service list by the following means of service: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IB] □ □ □ IB] DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA PURSUANT TO 28 U.S.C. SECTIONS 1332, 1441(a) AND (b) BY MAIL - I deposited such envelope in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with the finn's practice of collection and processing corresIJondence for 111ailing. Under that pra_ctice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served1 service is presumed invalid if postal cancellation date or J?OStage meter 1ate 1s more than one (1) day after date of deposit for mailing m affidavit. BY ELECTRONIC MAIL - Based on a court order or an agreement of the pa1ties to accef)t service by electronic transmission, I transmittea a true copy of said document(s) via electronic mail, and no error was reported. Said email was directed as indicated on the service list. BY PERSONAL SERVICE - I caused such envelope to be delivered by hand to the person( s) at the address( es) set fo1th below. BY OVERNIGHT DELIVERY - I caused such documents to be delivered overnight via Federal Express in lieu of delivery bY. mail to the addressees. The ~nvelope or package was deposited with delivery fees thereon fully prepaid. BY CM/ECF - l electronically transmitted. a true copy of said document(s) to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filmg to the aforementioned CM/ECF registrants. SEE ATTACHED SERVICE LIST I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on July 15, 2019, at Los Angel 1980942.1 Joanne Tran CERTIFICATE OF SERVICE USDC NDCA CASE NO,: 1 2 I 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:19-cv-04056 Document 1 Filed 07/15/19 Page 8 of 8 SERVICE LIST Frederic Dominionlv. 90 Seconds, Inc. USDC NDCA Case No.: Kurt E. Wilson Rachael E. Brown Sweeney, Mason, Wilson & Bosomworth A Professional Law CotJ)oration 983 University Avenue, Suite 104C Los Gatos, CA 95032-7637 Tel: (408) 356-3000 Fax: (408) 354-8839 - 2 - 1980942,J. Attorneys for Plaintiff CERTIFICATE OF SERVICE USDC NDCA CASE NO.: 1 2 3 4 5 6 7 8 9 10 11 Case 3:19-cv-04056 Document 1-1 Filed 07/15/19 Page 1 of 4 RAINES FELDMAN LLP Phillip R. Maltin (State Bar No. 153606) pmaltin@r..aineslaw.com · Ricardo Rozen {State Bar No. 279151) rrozen@J:.aineslaw.com 1800 Avenue of the Stars, 12th Floor Los Angeles, California 90067 Telephone: (310) 440-4100 Facsimile: (310) 691-1943 Attorneys for Defendant 90 SECONDS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 12 FREDERIC DOMINIONI, an individual, Case No.: 13 14 15 16 17 18 19 20 21 22 23 24 Plaintiff, v. 90 SECONDS, INC. a Delaware ~orpo~ation; and DOES 1 through 25, mcfus1ve, Defendants. DECLARATION OF RICARDO ROZEN IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL (Removal from San Francisco County Superior Court, Case No. CGC-19- 576484) (Civil Case Cover Sheet; Notice of interested Parties; Notice of Remova1· and Declaration of Timothy Norton;ded concurrently herewith) ComQlaint Filed: June 5_,,2019 Trial Date: None r et DECLARATION OF RICARDO ROZEN I, RICARDO ROZEN, hereby declare and state as follows: 1. I am an attorney at law duly licensed to practice before all courts in 25 the State of California, I am an associate of the law firm of Raines Feldman LLP, 26 counsel of record for Defendant, 90 Seconds, Inc. Based on my personal 27 knowledge, I assert the facts set forth herein and, if called upon as a witness, I 28 could and would competently testify thereto. Frederic Domil,ioni V. 90 Second.'/, Inc. Case No, I DECLARATION OF RICARDO ROZEN IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL Case 3:19-cv-04056 Document 1-1 Filed 07/15/19 Page 2 of 4 1 2. Plaintiff Frederic Dominioni ("Plaintiff') filed this action against 2 Defendant 90 Seconds, Inc. on June 5, 2019 in the Superior Court for the County 3 of San Francisco, case entitled Frederic Dominioni v. 90 Seconds, Inc., Case No. 4 CGC-19-576484 (the "Complaint"). The Summons and Complaint is annexed to 5 the Notice of Removal collectively as Exhibit "A" 6 3. Plaintiff served 90 Seconds, Inc. with the Summons and Complaint 7 on June 13, 2019. 8 I declare under penalty of perjury, under the laws of the United States of 9 America, that the foregoing is true and correct. 10 Executed on July 15, 2019; at Los Angeles, California. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Frederlc Dominiom' V. 90 Seconds, inc. Case No. RICARDO ROZEN 2 DECLARATION OF RICARDO ROZBN IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL Case 3:19-cv-04056 Document 1-1 Filed 07/15/19 Page 3 of 4 1 CERTIFICATE OF SERVICE 2 I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years, and not a party to the within actiog. My business address 3 is Raines Feldman LLP, 1800 Avenue of the Stars, 12t Floor, Los Angeles, California 90067-1623. 4 On July 15, 2019, I served the within document(s) on all interested parties in 5 this action by placing a true copy thereof enclosed in a sealed envelope addressed as shown on the attached service list by the following .means of service: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF RICARDO ROZEN IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL IBl BY MAIL - I deposited such envelope in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing con-es2ondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or P.Ostage meter date 1s more than one (!) day after date of deposit for mailing m affidavit. □ □ □ IBl BY ELECTRONIC MAIL - Based on a court order or an agreement of the parties to accept service by electronic transmission, I transmittea a true copy of said document(s) via electronic mail, and no enor was reported. Said email was directed as indicated on the service list. BY PERSONAL SERVICE - I caused such envelope to be delivered by hand to the person( s) at the address( es) set forth below. BY OVERNIGHT DELIVERY - I caused such documents to be delivered overnight via Federal Express in lieu of delivery by mail to the addressees. The ~nvelope or package was deposited with delivery fees thereon fully prepaid. BY CM/ECF - I electronically transmitted a true cop_y of said document(s) to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filmg to the aforementioned CM/ECF registrants. SEE ATTACHED SERVICE LIST I declare that I am employed in the office of a member of the bar of this Comi at whose direction the service was made. Executed on July 15, 2019, at Los Angeles, 1980942.l ifornia. Joanne Tran CERTlFICATE OF SERVICE USDC NDCA CASE NO.: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:19-cv-04056 Document 1-1 Filed 07/15/19 Page 4 of 4 SERVICE LIST Frederic Dominioni v. 90 Seconds, Inc. USDC NDCA Case No.: Kurt E. Wilson Rachael E. Brown Sweeney, Mason, Wilson & Bosomworth A Professional Law CorJ:>oration 983 University Avenue, Suite 104C Los Gatos, CA 95032-7637 Tel: (408)356-3000 Fax: (408) 354-8839 - 2 - 1980942.1 Attorneys for Plaintiff CERTIFICATE OF SERVICE USDC NDCA CASE NO,: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Case 3:19-cv-04056 Document 1-2 Filed 07/15/19 Page 1 of 5 RAINES FELDMAN LLP Phillip R, Maltin (State Bar No. 153606) pmaltin@raineslaw.com Ricardo Rozen (State Bar No. 279151) rrozen@raines law. com 1800 Avenue of the Stars, 12th Floor Los Angeles, California 90067 Telephone: (310) 440-4100 Facsimile: (310) 691-1943 Attornex-s for Defendant 90 SECONDS, INC. UNITED STATES DISTRICT COURT NORTIIBRN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION FREDERIC DOMINION!, an individual, Plaintiff(s ), v. 90 SECONDS, INC. a Delaware yorpo~ation; and DOES 1 through 25, mclus1ve, Defendant( s) Case No.: DECLARATION OF TIMOTHY NORTON IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA PURSUANT TO 28 U.S.C. SECTIONS 1332, 1441(a) AND (b) (Removal from San Francisco County Superior Court, Case No. CGC-19-S76484) (Civil Case Cover Sheet; Notice of interested Parties; Notice of Removal; and .Declaration of Ricardo Rozenfiled concurrently herewith) Complaint filed: Trial Date: June 5, 2019 None yet I, Timothy Norton, declare as follows: 23 24 I am a resident of Singapore. I am over the age of 18 years and make this Declaration 25 on personal knowledge. I could and would competently testify to the following in a court 26 27 28 of law if required to do so: Frederic Dominioni v, 90 Seconds1 Inc. Case No.: 1 DECLARATIONOFTIMOTHYNORTONINSUPPORT OF DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Case 3:19-cv-04056 Document 1-2 Filed 07/15/19 Page 2 of 5 l 1. I am the CEO and Founder for 90 Seconds the parent company of defendant 2 90, Seconds, Inc. ("Defendant"). I am also the CEO for Defendant. 3 2. Defendant is the United States based subsidiary of 90 Seconds, a global cloud 4 based video creation company. 5 3. Defendant is a Delaware company incorporated under the laws of that state. 6 A true and correct copy of the incorporation documents filed in Delaware are attached 7 collectively as Exhibit 1 and incorporated herein by this reference. The documents in 8 Exhibit 1 all list me as the Defendant's incorporator. 9 4. Defendant is also registered to do business in California. A printout from the 10 California Secretary of State website is attached hereto as Exhibit 2 and incorporated herein 11 by this reference. 12 5. The Statement of Information filed with the California Secretary of State on 13 April 6, 2017, lists me as Defendant's CEO, Secretary and CFO. A true and correct copy 14 of the Statement of Information is attached hereto as Exhibit 3 and incorporated herein by 15 this reference. The address listed for me on the April 6, 2017, Statement of Information .16 was 90 Seconds' original headquarters in Auckland, New Zealand. 17 6. On January 1, 2019, Defendant filed another Statement of Information with 18 the California Secretary of State. The new Statement of Information still lists me as the 19 CEO for Defendant since I make all the ultimate decisions for that entity. A true and correct 20 copy of the Statement of Information is attached hereto as Exhibit 4 and incorporated 21 herein by this reference. 22 7. I am based in Singapore and live there permanently. The majority of the 23 leadership team for 90 Seconds as well as for Defendant are also based in Singapore. There 24 are a few high ranking officials who are based in some of our other worldwide offices, but 25 none are in the San Francisco office. 26 8. The parent company of Defendant, 90 Seconds, was originally headquartered 27 in New Zealand, however since early 2016 and continuing to today, it is headquartered in 28 Singapore. All Board meetings are held in Singapore. 11 Frederic Dominioni v, 90 Seconds, lno. Case No,: 2 DECLARATION OF TTMO1HY NORTON IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STA TES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Case 3:19-cv-04056 Document 1-2 Filed 07/15/19 Page 3 of 5 1 9. Defendant's principal place of business is in Singapore. That is where 2 Defendant's high level officers direct, control and coordinate Defendant's activities. 3 10. In addition to myself, my co-founder and Vice President of Strategic growth 4 Nick Erskine-Shaw is also based out of our Singapore office. Additional high ranking 5 officers and directors are based out of our Singapore office including Defendant's in-house 6 legal team. 7 11. Defendant's "nerve center" is found in Singapore. 8 12. 90 Seconds has offices throughout the world including offices in Singapore, 9 Sydney, Tokyo, Auckland, London, Hong Kong and San Francisco. 10 13. Defendant's office in San Francisco hosts only four employees (two 11 producers, a growth manager and a growth director). None of Defendant's decision makers 12 are based in that office. All the ultimate decisions regarding staffing, personnel, salaries, 13 bonuses, promotions and terminations for that office are made by individuals based out of 14 the Singapore office or in some instances the London office. 15 14. All of Defendant's major administrative operations are found in the Singapore 16 office. 17 15. Defendant hired Plaintiff Frederick Dominioni ("Plaintiff") on or around 18 October 12, 2018, for the role of Growth Manager. In this position Plaintiff earned a base 19 salary of $160,000 per year and was potentially eHgible to earn additional commissions. A 20 true and correct copy of Plaintiffs employment contract is attached hereto as Exhibit 5 and 21 22 23 24 25 26 27 28 is incorporated herein by this reference. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct, Dated this 3rd day of July, 2019 at Singapore. Frederic Dominion/ v, 90 Seconds1 Inc. Case No.: A>A- By~· __ /__ e, _______ _ Timothv Norton 3 DECLARATION OF TIMOTHY NORTON IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STA TES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Case 3:19-cv-04056 Document 1-3 Filed 07/15/19 Page 1 of 29 EXHIBIT 1 Case 3:19-cv-04056 Document 1-3 Filed 07/15/19 Page 2 of 29 CERTIFICATE OF INCORPORATION OF 90 SECONDS, INC ARTICLE! The name of the oorporation is 90 Seconds, Inc (the "Corporation"), ARTICLE II The address of the Corporation's registered office in the State of Delaware is 2711 CentervHle Road, Suite 400, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is The Company Corporation. ARTICLE III The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law, ARTJCLEIV The aggregate number of shares which the Corporation shall have authority to issue is I 0,000,000 shares of capital stock all of which shall be designated "Common Stock" and have a par value ofS0.00001 per share. .. ARTICLEV The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. Elections of directors need not be by written ballot unless otherwise provided in the Bylaws of the Corporation. In furtherance of and not in limitation of the powers conferred by the laws of the state of Delaware, the Board of Directors of the Corporation is expressly authorized to make, amend or repeal Bylaws of the Corporation. ARTICLE VI (A) To the fullest extent permitted by the Delaware General Corporation Law, as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duly as a director. (B) The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director or officer of the Corporation ot any predecessor of the Corporation, or serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation. EXHIBIT 1 Page4 Case 3:19-cv-04056 Document 1-3 Filed 07/15/19 Page 3 of 29 (C) Neither any amendment nor repeal of this Article VI, nor the adoption of any provision of the Corporation's Certificate of Incorporation inconsistent with this Article VI, shall eliminate or reduce the effect of this Article VI in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article VI, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision, ARTICLE VII Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (A) any derivative action or proceeding brought on behalf of the Corporation, (B) any action or proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation's stockholders, (C) any action or proceeding asserting a claim against the Corporation arising pursuant to any provision of the Delaware General Corporation Law or the Corporation's Certificate of Incorporation or Bylaws, or (D) any action or proceeding asserting a claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. ARTJCLEVllJ The name and mailing address of the incorporator are as follows: Executed on September 6,2015. Tim Norton, lncorporator Tim Norton 185 Clara Street San Francisco, CA 94 I 07 EXHIBIT 1 Page 5 Case 3:19-cv-04056 Document 1-3 Filed 07/15/19 Page 4 of 29 90 SECONDS, INC. AMENDED AND RESTATED CERTIFICATE OF INCORPORATION (Pursuant to Sections 241 and 245 of the General Corporation Law of the State of Delaware) The undersigned hereby certifies that: I. He is the sole director of 90 Seconds, Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the "General Corporation Law") 2. . This corporation was originally incorporated pursuant to the General Corporation Law on September 9, 2015. 3. This corporation has not received payment for any of its stock. 4. That, pursuant to Sections 241 and 245 of the General Corporation Law, the Board of Directors duly adopted resolutions proposing to amend and restate the Certificate of Incorporation of this corporation, declaring said amendment and restatement to be advisable and in the best interests of this corporation, which resolution setting forth the proposed amendment and restatement is as follows: RESOLVED: That the Certificate of Incorporation of this corporation shall be amended and restated to read in full as follows: ARTICLE I The name of the corporation is 90 Seconds, Inc. (the "Corporation"), ARTICLE II The address of the Corporation's registered office in the State of Delaware is 3500 South DuPont Highway, Dover, Delaware, County of Kent, 19901. The name of its registered agent at such address is Incorporating Services, Ltd. ARTICLE III The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. ARTICLE IV The aggregate number of shares which the Corporation shall have authority to issue is I 00 shares of capital stock all of which shall be designated ''Common Stock" and have a par value of $0.0001 per share. 484<1-S981-8043\1 EXHIBIT 1 Page 6 Case 3:19-cv-04056 Document 1-3 Filed 07/15/19 Page 5 of 29 ARTICLEV In furtherance of and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, amend or repeal Bylaws of the Corporation. ARTICLE VI The business and affairs of the Corporation shall be managed by or under the dinlction of the Board of Directors. Elections of directors need not be by written ballot unless otherwise provided in the Bylaws of the Corporation. ARTICLE VII (A) To the fullest extent permitted by the Delaware General Corporation Law, as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. (B) The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director or officer of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation. (C) Neither any amendment nor repeal of this Article VII, nor the adoption of any provision of the Corporation's Certificate of Incorporation inconsistent with this Article Vil, shall eliminate or reduce the effect of this Article Vil in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article VII, would accrue cir arise, prior to such amendment, repeal or adoption of an inconsistent provision, ARTICLE Vlll For purposes of Section 500 et seq. of the California Corporations Code (to the extent applicable), in connection with any repurchase of shares of Common Stock permitted under this Certificate of Incorporation from employees, officers, directors or consultants of the Corporation in connection with a termination of employment or services pursuant to agreements or arrangements approved by the Board of Directors (in addition to any other consent required under this Certificate oflncorporation), such repurchase may be made without regard to any "preferential dividends arrears amount" or ''preferential rights amount" (as those tenns are defined in Section 500 of the California Corporations Code). Accordingly, for purposes of making any calculation 1D1der California Corporations Code Section 500 in connection with such repurchase, the amount of any ''preferential dividends arrears amount" or "preferential rights amount" (as those terms are defined therein) shall be deemed to be zero (0). 4844-5981-804,11 *** 2 EXHIBIT 1 Page 7 Case 3:19-cv-04056 Document 1-3 Filed 07/15/19 Page 6 of 29 The foregoing Amended and Restated Certificate oflncorporation has been duly adopted by this corporation's Board of Directors in accordance with the applicable provisions of Sections 241 and 245 of the General Corporation Law of the State of Delaware. 4844-5981-8043\I 3 EXHIBIT 1 Page 8 Ca~e 3:19-cv-04056 Document 1-3 Filed 07/15/19 Page 7 of 29 . ' ' ' ' BYLAWS OF 90 SECONDS, INC. EXHIBIT 1 page 9 Case 3:19-cv-04056 Document 1-3 Filed 07/15/19 Page 8 of 29 TABLE OF CONTENTS Page ARTICLE I CORPORATE OFFICES ................................................................................. I 1.1 Registere(; 2 itJOOJ:pCrated and Principal Plaee ofB~lkd In Another State Pordgn Natioo IV. NATUREOFSUIT (PJac,a,'X"mOne&xOn~) ·' ·'.;I:'' _(JON'l'llc;t_· .. t;!r):iW ~li:'Q-~:\\•: .. - . Fi:>' ;B jciC '-~ES·· 11-0 ]t\Ml,WOQ HRSOJ'llAL INJURY PERSO~AL1N1URY 62.5 Drug R~ated Seizure of , 422 Appeal 28 USC§ 158 ,.375 FaboClaims Aot '\ 12-0 Mtrole :;:::·310 Airplane 365 ?erflOl!al Jajwy- Product , Property 21 use §&&J 423 Withdrawal28 use . 576 Qui Tam (31 USC (i,130 MIiler Aot if315 AirplanePro,duot Liability Liability -~ 690 Othc:r;,,a====~l---'l'-1-57'-----==-I § ~7W(a)) ~/ 140 Nego4lable Instrument ~S:·320 Assauh, Libel & Slander 367 Hp:..i:,:~~t_, Persot1AI . , e,c.,z,'.o,I/Qas:,R.,i~:,,~:,i1c,:}:;•)c_~ _· J-...!.PR,:O:e.,.PE"R:.TY~,oRl,:G,:IITS='-----, 400 Sta~ Reapportionment (~I' 150 Rtoo-v~ of ({330 Fed.er.S Bmployenc' Inj;; ~= Li1bility ,_~_i710 Fair Labor Standard, Aot 820 Copyrjghts 410 Antitrust ~;:i:~Jts ·.·~·,,, MU_•~illly 36& ~bestos Petsc:inaf Injury ::}20 Labor/h-!anagcmcnt 830 PatCilt !!~ ~rm::! Banking .,,__ __ ., .,__ ~ ..... , ,_,.,.,k, Relations &35 Pat.eru-Abbrevlatcd New ~-:151Mwi.Clrl:Act I""" '611 nvu,.-,,,1,...., .... , ': ..'.· 7,0"-"--·=•-~--•--' 460n-.,,rtatlon ~ 152 Rc~OVMv ofD¢fault¢d \}45 Muint Produot Lta I ty PERSONAL PROPERTY ·- '1 ,,,.... .. ~., L,CIIUI /WI; Drug Application 470 ;;-Cit!# lnflueilCN & StudeDti..oans (Excludu t-.350 Motor Vehicle ,/·1$1 Famil)' and Medical &40 Ttademat.k Vc,tcttiUl!i} :-f:355 Motor V~¢le Product , 3?0 Othor Fraud Leave Act Corrupt Organization.1 ·.·. Liabili+., 371 Truth fl! Lending ?:(790 OthCIT Labor Utigation soc.IAL.SEfillRIIT 4S0 CoMUiiot Crodit fl:153 Recovery of ., ' &61 HIA(l3"Sfl) Overpayment })60 Othot 'Personal Jnjwy : , , ,38Q OtherD Personal. Property 1}79I BmplO)'ee Retirement 7 485 Telephone CollSUiller o(Vetcrm's Benefit.1 ,: 362 Pcnonal Jnjtiry -Mcdioal iU"l\ftBO Income Security Act 862 Bia~ Lung (923) · Prol¢Ction Act ~ . Ma1practioe :m Property Damage Produol t:f" ·- , 'oo - 863 DIWC/DlWW (405(,8)) '' 490 Cable/Sat TV i~l60 Stookholdt:-s' Suits . . Liability ~{:{;i-: - UGRATION .864 SSIDTitlo XVI 850 Seeurltlta/CommodltJt$/ [~)90 Other Con!nwt CIVIL RIG~li:'.{~Y/i _;t··_ : ~~ , ·tr . •-a.•.•'!tSY'· : . 462 Natw-Jlizatio~ El\change ~195 Contraot.Product Liability -· .!~Q .~ -~ Appli,;.atlon 865 RSI (40S(g)) ~ '· AAO = , •1 ru~1. .,-..;-,r.,'11 , 890 Other Sta!Ulory Actions U-196 Franch!SCI ':' '1'1 vwtrC!\ll ~t~ HABEAS co~us ·.;:4-65 Other lmmisn,tion . FEP~:Pl.i1t$WTS ,, ' 441 y-· . '63 AJ,'- ,.,._._:_._ A....itt.... ,891 AgriouJtural ACU ~ ,. .... ...,,....,,,..., ., .. .,,... , 870 Taxes (C,S, Plaintiff or 'r.lJ.. :.:-'442 Employment . 510 Motions to Va~te . Def~t) 89l EnvirOIUtitlital Me.tto:s ii210 L!llld Condemnation (.:443 Hoesing/ $t1).too.1Xl 871 rR.S-Th.ird PertyZ6 USC 895 Free4om oflnfomiation i1_:i20 Foreclosure Acoommodations .,.,530 General § 1609 Act ~230 R"1t LClltsCI & Eje«meJ1t 445 Amer. w!Oisabilities-- · .. , ·~m Death Penalty 896 Arbitration fi240 Torts to Land Etnploymem ()Tlttll 899 ~ Procedure ~.,. 5 T_.~., .. -• U-"',l,'ty 446 Amt:c. w/Disabilitics-0 Aot/R~~ or Appeal of ~.,,., "'"·"'·"'...,._ ...., • •: -540 Mandamus & Other Ag~y DeoislOn ""'%All .......... D--• o.....~....... ,:: .448 Educaticn sso =" ru~ ~ v.,,..., .......,. • ''¥'"} ....,ru ~uil 950 CoMt:mit/onality of State · SSS Pruett Conditioo Stmtulc:~ v. ~1 VL VIL ORIGIN (Placea;i "X"lnOm:BMOnly} Original ~2 Remove4 from Pr~g Stato CQU!i VITI. RELATEDCASE(S), IF ANY (Su frutf'U<';t/ons): 560 Civil Dotainee-- CondWolll of Coofinement 3 R~lnl!ldcd from Appellate Court IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2) (Pia« an •x• In on, Box Only) ;if SAN FRANCISCO/OAKLAND P,f;i S Trm!fotrt