Original Complaint Doc1 Redwood Dental Group vs. American Dental Partners

18990854.1

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DENTAL ASSOCIATES, P.C., d/b/aREDWOOD DENTAL GROUP,

Plaintiff, Civil Action No. _______________Hon. ________________________

v.

AMERICAN DENTAL PARTNERSOF MICHIGAN, LLC and AMERICANDENTAL PARTNERS, INC.,

Defendants.

Ronald L. Cornell, Jr. (P46860)SEYBURN, KAHN, GINN, BESS &SERLIN, P.C.Attorneys for Plaintiff200 Town Center, Suite 1500Southfield, Michigan 48075(248) 353-7620

Robert M. Jackson (P40723)Jason R. Abel (P70408)HONIGMAN MILLER SCHWARTZAND COHN LLPAttorneys for Defendants2290 First National Building660 Woodward AvenueDetroit, Michigan 48226(313) 465-7430

NOTICE OF REMOVAL

PLEASE TAKE NOTICE that, pursuant to 28 U.S.C. §§ 1441 and 1446, Defendants

remove to this Court the state-court action that was served on Defendants on or about March 25,

2011 and that was venued in the Wayne County, Michigan Circuit Court. As required by 28

U.S.C. § 1446(a), attached are copies of all process, pleadings and orders served upon the

Defendants in the removed case. In support of this Notice of Removal, Defendants state:

1. Plaintiff filed its Complaint in the Wayne County, Michigan Circuit Court on

March 17, 2011, and the Complaint was assigned Case No. 11-003213-CK. The first date upon

which Defendants were served with a copy of the Complaint in the removed case was March 25,

2:11-cv-11624-DPH-MJH Doc # 1 Filed 04/15/11 Pg 1 of 144 Pg ID 1

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2011. This Notice of Removal is being filed within 30 days of service, and, therefore, is timely

filed under 28 U.S.C. § 1446(b).

2. Venue of this removal is proper under 28 U.S.C. § 1441(a), because this Court is

in the United States District Court for the district and division corresponding to the venue where

the state-court action was filed.

3. This is a civil action that falls within the Court’s original jurisdiction under 28

U.S.C. § 1332 (diversity of citizenship) and is one that may be removed to this Court based on

diversity of citizenship under 28 U.S.C. §§ 1441 and 1446 because:

(a) As stated in the Complaint, ¶ 1, Plaintiff Dental Associates, P.C., d/b/a Redwood

Dental Group, is a Michigan professional corporation with its registered office

located in Warren, Michigan. It therefore is a citizen of the State of Michigan at

the time of removal and at the time this action was served.

(b) As stated in the Complaint, ¶ 3, American Dental Partners, Inc. (“ADPI”) is a

publically-traded Delaware corporation with its headquarters located in

Wakefield, Massachusetts. ADPI’s principal place of business is, in fact, in

Massachusetts. ADPI is, therefore, a citizen of Delaware and Massachusetts at

the time of removal and at the time this action was served. 28 U.S.C. §

1332(c)(1) (stating that a corporation is a citizen of its state of incorporation and

the state in which its principal place of business is located); V & M Star, LP v.

Centimark Corp., 596 F.3d 354, 355 (6th Cir. 2009).

(c) As stated in the Complaint, ¶ 2, Defendant American Dental Partners of

Michigan, LLC (“ADP of Michigan”) is a Delaware limited liability company. A

limited liability company is a citizen of all of the states in which its members are


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citizens. V & M Star, LP, 596 F.3d at 356. The sole member of ADP of

Michigan is ADPI. Therefore, ADP of Michigan is a citizen of Delaware and

Massachusetts, and it was so at the time of removal and at the time this action was

served.

(d) The monetary value of the amount in controversy exceeds $75,000, exclusive of

interests and costs, for three independently sufficient reasons. First, “[i]n actions

seeking declaratory or injunctive relief, it is well established that the amount in

controversy is measured by the value of the object of the litigation.” Hunt v.

Washington State Apple Adver. Comm’n, 432 U.S. 333, 347 (1997). Here, the

Plaintiff seeks a declaration that it can terminate its agreement with ADP of

Michigan. The potential loss to the Plaintiff from enforcement of the agreement

exceeds $75,000 because the Plaintiff will pay ADP of Michigan far in excess of

$75,000 through the remaining life of the agreement if the Plaintiff does not

succeed in this lawsuit in terminating its agreement. (Affidavit of Breht T. Feigh

“Feigh Aff.” at ¶¶ 3-5, attached as Exhibit A.) See Crestmark Bank v. Goldleaf

Fin. Solutions, Inc., No. 07-12841, 2007 WL 2694174, at *9 (E.D. Mich. Sept.

11, 2007) (“The ‘object of the litigation’ is not the ‘contract’ itself, but the costs

associated with its enforcement against the plaintiff to the plaintiff”). Moreover,

where a constructive trust is sought, as in this case, the amount in controversy

includes all money retained by the defendants. Rosen v. Chrysler Corp., 205 F.3d

918 (6th Cir. 2000). The amount over which the Plaintiff seeks a constructive

trust exceeds $75,000 in this case. (Feigh Aff. at ¶¶ 6.) Finally, the Plaintiff has

sued for damages. Plaintiff alleges in its Complaint that this case is similar to


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another case in which the plaintiff recovered approximately $88 million in

compensatory damages and over $40 million in punitive damages. (Complaint at

¶ 17.) Therefore, Plaintiff’s own allegations illustrate that the amount in

controversy exceeds $75,000.

4. Thus, the state-court action may be removed to this Court in accordance with the

provisions of 28 U.S.C. § 1441(a) because: (i) this action is a civil action pending within the

jurisdiction of the United States District Court for the Eastern District of Michigan; (ii) this

action is between citizens of different states; and (iii) the amount in controversy exceeds $75,000

exclusive of interest and costs.

5. All of the Defendants join in removal of this action.

6. If any question arises as to the propriety of the removal of this action, Defendants

request the opportunity to brief any disputed issues and to present oral argument in support of its

position that this case is properly removable.

7. Nothing in this Notice of Removal shall be interpreted as a waiver or

relinquishment of any of the Defendants’ rights to deny the allegations contained in Plaintiff’s

Complaint, or of Defendants’ rights to assert any defenses, including, without limitation: (1) lack

of jurisdiction of the person, (2) improper venue, (3) insufficiency of process, (4) insufficiency

of service of process, (5) improper joinder of claims and/or parties, (6) failure to state a claim,

(7) failure to join an indispensable party, (8) that Plaintiff’s claims must be arbitrated or (9) any

other procedural or substantive defenses available under state or federal law.

8. Pursuant to 28 U.S.C. § 1446(d), written notice of the removal of this action has

been given simultaneously to Plaintiff’s counsel, and the Notification of Filing Notice of

Removal in Federal Court is simultaneously being filed with the Wayne County Circuit Court,


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State of Michigan. A copy of the filing with the Wayne County Circuit Court (without exhibit)

is attached as Exhibit B.

WHEREFORE, Defendants request that further proceedings be conducted in this Court

as provided by law.

Dated: April 15, 2011 HONIGMAN MILLER SCHWARTZ AND COHN

LLP

By: /s/ Jason R. AbelRobert M. Jackson (P40723)

Jason R. Abel (P70408)2290 First National Building660 Woodward AvenueDetroit, MI 48226Phone: 313-465-7430

and

MASLON EDELMAN BORMAN & BRAND, LLPWilliam Z. Pentelovitch (#85078)Haley N. Schaffer (#0313099)3300 Wells Fargo Center90 South Seventh StreetMinneapolis, MN 55402-4140Phone: 612-672-8200


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CERTIFICATE OF SERVICE

I hereby certify that on April 15, 2011, I electronically filed the foregoing papers with the

Clerk of the Court using the ECF system which will send notification of such filing to all ECF

participants; and I hereby certify that I have mailed the foregoing papers by United States Postal

Service to the following non-ECF participants:

Ronald L. Cornell, Jr. (P46860)SEYBURN, KAHN, GINN, BESS & SERLIN, P.C.

Attorneys for Plaintiff200 Town Center, Suite 1500Southfield, Michigan 48075

(248) 353-7620

By: /s/ Jason R. AbelRobert M. Jackson (P40723)Jason R. Abel (P70408)2290 First National Building660 Woodward AvenueDetroit, MI 48226Phone: 313-465-7430


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Documents

Original Complaint Doc1 Redwood Dental Group vs. American Dental Partners