Case 1:14-cv-01323-ERK-JMA Document 1-1 Filed 02/27/14 Page 1 of 2 PageID #: 6 CIVIL COVER SHEET (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS Nemet Motors, LLC d/b/a Nemet Kia Kia Motors America, Inc. (b) Queens County, New York (EXCEPT IN U.S. PLAINTIFF CASES) (c) (Firm Name, Address, and Telephone Number) Cyruli, Shanks, Hart & Zizmor, LLP, 420 Lexington Ave, New York, New York 10170, (212) 661-6800 Orange County, California (IN U.S. PLAINTIFF CASES ONLY) (If Known) Hogan Lovells US LLP, 875 Third Ave, New York, New York 10022, (212) 918-10022 II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF (U.S. Government Not a Party) or and (Indicate Citizenship of Parties in Item III) IV. NATURE OF SUIT (Place an X in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES PERSONAL INJURY PERSONAL INJURY PROPERTY RIGHTS LABOR SOCIAL SECURITY PERSONAL PROPERTY REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS Habeas Corpus: IMMIGRATION Other: V. ORIGIN (Place an X in One Box Only) VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY FOR OFFICE USE ONLY (specify) (Do not cite jurisdictional statutes unless diversity) 15 U.S.C. Sec. 1221 et seq. Automotive dealer's challenge to a notice of termination issued by an automotive distributor CLASS ACTION DEMAND $ JURY DEMAND: (See instructions): 02/26/2014 /s/ John Sullivan
Case 1:14-cv-01323-ERK-JMA Document 1-1 Filed 02/27/14 Page 2 of 2 PageID #: 7 John J. Sullivan Kia Motors America, Inc. Kia Motors Corporation and Hyundai Motor Company No No Yes /s/ John Sullivan
Case 1:14-cv-01323-ERK-JMA Document 1 Filed 02/27/14 Page 1 of 5 PageID #: 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------X NEMET MOTORS, LLC d/b/a NEMET KIA, - against - KIA MOTORS AMERICA, INC., Plaintiff, Defendant. Case No.: NOTICE OF REMOVAL --------------------------------------------------------------X PLEASE TAKE NOTICE that Defendant Kia Motors America, Inc. ( KMA ), by and through its undersigned counsel, pursuant to 28 U.S.C. 1441 and 1446, hereby removes this action from the Supreme Court of the State of New York, County of Queens, to the United States District Court for the Eastern District of New York: 1. On or about January 29, 2014, Plaintiff Nemet Motors, LLC d/b/a Nemet Kia ( Nemet ) commenced this action by filing a Summons and Complaint in the above-captioned matter in the Supreme Court of the State of New York, County of Queens, under Docket Number 700634/14 (the State Court Action ). 2. The Summons and Complaint were forwarded by email to outside counsel for KMA, the sole Defendant in the State Court Action, on January 30, 2014. 3. Pursuant to 28 U.S.C. 1446(b), this Notice of Removal is timely since it is filed within thirty (30) days of Defendant s receipt of the Summons and Complaint. 4. In the Complaint, Nemet alleges, among other things, that KMA acted unlawfully by issuing a notice to terminate Nemet s Kia Dealer Sales and Service Agreement (the Dealer 1
Case 1:14-cv-01323-ERK-JMA Document 1 Filed 02/27/14 Page 2 of 5 PageID #: 2 Agreement ). The Dealer Agreement authorizes Nemet to act as a Kia sales and service dealer in Jamaica, New York. Plaintiff further alleges that, in connection with the notice of termination, KMA has imposed unreasonable sales and customer satisfaction requirements that have not been uniformly enforced against other Kia dealers. 5. Count II of the Complaint alleges, more specifically, that KMA s actions violated 15 U.S.C. 1221 et seq., commonly known as the Federal Automobile Dealer s Day in Court Act (the Federal Dealer Act ). 6. In view of Nemet s Federal Dealer Act claim, this Court has jurisdiction pursuant to 28 U.S.C. 1331 because the Complaint asserts a claim arising under the laws of the United States. This Court also has jurisdiction over the state law claims asserted in the Complaint under 28 U.S.C. 1367(a) and principles of supplemental and/or pendent jurisdiction. These state law claims are related to Nemet s Federal Dealer Act claim such that they form part of the same case or controversy: both the federal and state law claims relate to KMA s alleged imposition and enforcement of unreasonable sales and customer service requirements and its intention to terminate the Dealer Agreement between KMA and Nemet. 7. In addition, this Court has jurisdiction pursuant to 28 U.S.C. 1332(a)(1) because the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs, and the action is between citizens of different states. 8. According to the Complaint herein and upon information and belief, Nemet is, and was as of the commencement of the State Court Action, a limited liability company organized and existing under the laws of the State of New York. Nemet has two members and owners, Scott Perlstein, Thomas Nemet s son-in-law, and Jerome LeBowitz, the sole executor of 2
Case 1:14-cv-01323-ERK-JMA Document 1 Filed 02/27/14 Page 3 of 5 PageID #: 3 the estate of Thomas Nemet. Each of Nemet s members and owners resides in, is domiciled in, and is a citizen of New York. 9. Defendant KMA is, and was as of the commencement of the State Court Action, a California corporation with its principal place of business in Irvine, California. KMA is the only defendant in the State Court Action. 10. The Complaint prays for (a) money damages, (b) an order enjoining KMA from terminating the Dealer Agreement between Nemet and KMA, (c) costs and attorney s fees, and (d) punitive damages. 11. The central allegation in the Complaint is that KMA wrongfully issued a notice of termination of the Dealer Agreement. Nemet seeks permanent injunctive relief restraining KMA from terminating the Dealer Agreement. If Nemet s demand for injunctive relief is denied and KMA s termination of the Dealer Agreement is upheld, Nemet will no longer have the right to operate as an authorized Kia dealership or to propose the sale of its Kia assets. According to the Complaint, Nemet s owners have invested substantial sums of money into the dealership. 12. The value to Nemet of an injunction preventing the termination of the Dealer Agreement is, in and of itself, substantially in excess of $75,000. 13. Defendant KMA received the Summons and Complaint by email. Pursuant to 28 U.S.C. 1446(a), copies of all process, pleadings, and other papers in this case are attached hereto as Exhibit 1. 14. By filing this Notice of Removal, KMA does not waive any defense which may be available to it. 3
Case 1:14-cv-01323-ERK-JMA Document 1 Filed 02/27/14 Page 4 of 5 PageID #: 4 15. A copy of this Notice will be filed with the Clerk of the Supreme Court of the State of New York, County of Queens, as required by 28 U.S.C. 1446(d). 16. Defendant KMA will serve this Notice of Removal on the attorney for Plaintiff: Russell Shanks, Esq., Cyruli, Shanks, Hart & Zizmor, LLP, 420 Lexington Avenue, New York, New York, 10170, as required by 28 U.S.C. 1446(d). WHEREFORE, Defendant KMA respectfully requests removal of this action from the Supreme Court of the State of New York, County of Queens, to the United States District Court for the Eastern District of New York. Dated: February 26, 2014 Respectfully submitted, HOGAN LOVELLS US LLP By_/s/John J. Sullivan John J. Sullivan 875 Third Avenue New York, New York 10022 (212) 918-3000 Attorney for Defendant Kia Motors America, Inc. 4
Case 1:14-cv-01323-ERK-JMA Document 1 Filed 02/27/14 Page 5 of 5 PageID #: 5 CERTIFICATE OF SERVICE I hereby certify that on February 26, 2014, I served a true copy of the foregoing document by Federal Express and electronic mail, upon the following: Russell Shanks, Esq. Cyruli, Shanks, Hart & Zizmor, LLP 420 Lexington Avenue New York, New York 10170 Tel: (212) 661-6800 rshanks@cshzlaw.com /s/ John J. Sullivan John J. Sullivan Attorney for Defendant Kia Motors America, Inc. 5
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