Case 2:18-cv HCM-RJK Document 1 Filed 07/03/18 Page 1 of 5 PageID# 1

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1 Case 2:18-cv HCM-RJK Document 1 Filed 07/03/18 Page 1 of 5 PageID# 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division JEFFREY MAKUCH, PLAINTIFF, v. SPIRIT CRUISES, LLC, AND PRITZKER/VRS INVESTORS LLC., DEFENDANTS. Civil Action No. 2:18cv359 NOTICE OF REMOVAL Pursuant to 28 U.S.C. 1332, 1441, and 1446, Defendant Spirit Cruises, LLC ( Spirit, by and through counsel, hereby removes this action from the Circuit Court for the City of Portsmouth, Virginia (Case No.: to the United States District Court for the Eastern District of Virginia, Norfolk Division. Removal is proper because the citizenship of the parties is totally diverse and the amount in controversy is greater than $75, Accordingly, Spirit removes this action and, in support of removal, states the following: Statement of the Case 1. This action is a civil action, and was commenced on May 31, 2018, with the filing of a Complaint in the Circuit Court for the City of Portsmouth, captioned Jeffrey Makuch v. Spirit Cruises, LLC and Pritzker/VRS Investors LLC, Civil Action No (the Complaint.

2 Case 2:18-cv HCM-RJK Document 1 Filed 07/03/18 Page 2 of 5 PageID# 2 2. The Complaint alleges that Spirit and/or Pritzker/VRS Investors LLC is the owner and operator of the Spirit of Norfolk. 3. Spirit is the sole owner and/or operator of the Spirit of Norfolk. 4. The Complaint alleges a negligence claim against Spirit. 5. Plaintiff prays for $373, for the alleged injuries. Removal Jurisdiction 1. The United States District Court for the Eastern District of Virginia, Norfolk Division, is the district court of the United States for the district and division embracing the place where this action is now pending. 2. The grounds for removal to the United States District Court for the Eastern District of Virginia, Norfolk Division, are that this Court, pursuant to 28 U.S.C. 1332(a(1, has original jurisdiction respecting the subject civil actions because the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between citizens of different states; to-wit: a. In its Complaint, Plaintiff asserts a negligence claim against Spirit in which Plaintiff seeks recovery of the principal sum of $373, b. Spirit is a Delaware limited liability company with its principal office located in Chicago, Illinois. c. Upon information and belief, Pritzker/VRS Investors LLC is a Delaware limited liability company with its principal office located in Chicago, Illinois. Pritzker/VRS Investors LLC does not, however, have an ownership interest in the Spirit of Norfolk. d. Neither Defendant was a citizen of the Commonwealth of Virginia at the time of the commencement of this action; nor are they now. 2

3 Case 2:18-cv HCM-RJK Document 1 Filed 07/03/18 Page 3 of 5 PageID# 3 e. Upon information and belief, Plaintiff is domiciled and is a resident of the state of New York at the time the state court litigation was filed and at this present time. f. There is complete diversity among the parties. 3. Attached hereto as Exhibit A is a true and legible copy of the Complaint referenced herein. 4. Spirit was served with the Complaint, which is the initial pleading setting forth the claims for relief upon which this action is based, in the state court proceeding on June 13, Accordingly, this Notice of Removal of a Civil Action is filed within the 30-day time period allowed by 28 U.S.C. 1446(b. 5. Promptly upon filing this Notice of Removal, Defendants will provide a written notice to Plaintiff and file a copy of the Notice of Removal with the Clerk of the Circuit Court for the City of Portsmouth in accordance with 28 U.S.C. 1446(d. 6. Spirit reserves all objections and defenses, and do not waive any objection or defense, whether procedural or substantive, including, but not limited to, lack of personal jurisdiction, improper venue, or rights respecting compelling arbitration of the underlying subcontract dispute and stay of this action pending the same. WHEREFORE, Defendant prays that the United States District Court for the Eastern District of Virginia, Norfolk Division, assume the jurisdiction of this action and all claims asserted, that this action proceed in said Court as an action properly removed thereto and properly pending therein, and that Defendant have and receive such other and further relief to which they may be entitled under the allegations herein or as is just and proper. SPIRIT CRUISES, LLC By: /s/ Jennifer L. Eaton Of Counsel 3

4 Case 2:18-cv HCM-RJK Document 1 Filed 07/03/18 Page 4 of 5 PageID# 4 Edward J. Powers, Esq. (VSB No Jennifer L. Eaton, Esq. (VSB No Vandeventer Black LLP 101 West Main Street, Suite 500 Norfolk, VA Telephone: ( Facsimile: ( epowers@vanblacklaw.com jeaton@vanblacklaw.com Counsel for Spirit Cruises, LLC 4

5 Case 2:18-cv HCM-RJK Document 1 Filed 07/03/18 Page 5 of 5 PageID# 5 CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing pleading was electronically filed with the Court s ECF system. The undersigned further certifies that a copy of the foregoing NOTICE OF REMOVAL OF A CIVIL ACTION has also been served via first class mail, postage-paid and addressed to: Edwin S. Booth, Esquire RULOFF, SWAIN, HADDAD, MORECOCK TALBERT & WOODWARD, P.C th Street Virginia Beach, Virginia Direct Dial Facsimile ebooth@srgslaw.com Counsel for Plaintiff Edward J. Powers, Esq. (VSB No Jennifer L. Eaton, Esq. (VSB No Vandeventer Black LLP 101 West Main Street, Suite 500 Norfolk, VA Telephone: ( Facsimile: ( epowers@vanblacklaw.com jeaton@vanblacklaw.com Counsel for Spirit Cruises, LLC /s/ Jennifer L. Eaton 5

6 Case 2:18-cv HCM-RJK Document 1-1 Filed 07/03/18 Page 1 of 8 PageID# 6 Exhibit A

7 Case 2:18-cv HCM-RJK Document 1-1 Filed 07/03/18 Page 2 of 8 PageID# 7 Exhibit A

8 Case 2:18-cv HCM-RJK Document 1-1 Filed 07/03/18 Page 3 of 8 PageID# 8 Exhibit A

9 Case 2:18-cv HCM-RJK Document 1-1 Filed 07/03/18 Page 4 of 8 PageID# 9 Exhibit A

10 Case 2:18-cv HCM-RJK Document 1-1 Filed 07/03/18 Page 5 of 8 PageID# 10 Exhibit A

11 Case 2:18-cv HCM-RJK Document 1-1 Filed 07/03/18 Page 6 of 8 PageID# 11 Exhibit A

12 Case 2:18-cv HCM-RJK Document 1-1 Filed 07/03/18 Page 7 of 8 PageID# 12 Exhibit A

13 Case 2:18-cv HCM-RJK Document 1-1 Filed 07/03/18 Page 8 of 8 PageID# 13 Exhibit A

14 Case 2:18-cv HCM-RJK Document 1-2 Filed 07/03/18 Page 1 of 4 PageID# 14 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division JEFFREY MAKUCH, Plaintiff, v. Civil Action No.: 2:18cv359 SPIRIT CRUISES, LLC, et al., Defendants. SPIRIT CRUISES, LLC S ANSWER AND AFFIRMATIVE DEFENSES Defendant Spirit Cruises, LLC s ( Spirit, by counsel, answers the Complaint in corresponding numbered paragraphs as follows: 1. Spirit denies the allegations contained in Paragraph 1 of the Complaint. 2. Upon information and belief, Spirit admits the allegations contained in Paragraph 2 of the Complaint. 3. Spirit admits that Spirit owns the Spirit of Norfolk as the sole owner. Spirit denies all remaining allegations contained in Paragraph 3 of the Complaint. 4. Spirit admits the allegations contained in Paragraph 4 of the Complaint. 5. Spirit admits the allegations contained in Paragraph 5 of the Complaint. 6. The allegations contained in Paragraph 6 contain legal conclusions to which no response is required. To the extent a response is required, Spirit states that the allegation is an incomplete statement of law and therefore denies Paragraph Spirit is without sufficient knowledge or information to admit or deny the allegations contained in Paragraph 7 of the Complaint and, therefore, denies all such allegations.

15 Case 2:18-cv HCM-RJK Document 1-2 Filed 07/03/18 Page 2 of 4 PageID# Spirit is without sufficient knowledge or information to admit or deny the allegations contained in Paragraph 8 of the Complaint and, therefore, denies all such allegations. 9. Spirit is without sufficient knowledge or information to admit or deny the allegations contained in Paragraph 9 of the Complaint and, therefore, denies all such allegations. 10. Spirit admits that the top deck features an antiskid deck. Spirit denies any remaining allegations contained in Paragraph 10 of the Complaint. 11. Spirit is without sufficient knowledge or information to admit or deny the allegations contained in Paragraph 11 of the Complaint as the allegations are vague and ambiguous and, therefore, denies all such allegations. 12. Spirit is without sufficient knowledge or information to admit or deny the allegations contained in Paragraph 12 of the Complaint and, therefore, denies all such allegations. 13. Spirit admits the allegations contained in Paragraph 13 of the Complaint. 14. Spirit denies the allegations contained in Paragraph 14 of the Complaint. 15. Spirit is without sufficient knowledge or information to admit or deny the allegations contained in Paragraph 15 of the Complaint and, therefore, denies all such allegations. 16. The allegations contained in Paragraph 16 and its subparts contain legal conclusions to which no response is required. To the extent a response is required, Spirit denies the allegations contained in Paragraph 16 of the Complaint and its subparts. 17. Spirit denies the allegations contained in Paragraph 17 of the Complaint. 18. Spirit denies the allegations contained in Paragraph 18 of the Complaint. Spirit denies all other allegations, including the prayer for relief, not expressly admitted above. 2

16 Case 2:18-cv HCM-RJK Document 1-2 Filed 07/03/18 Page 3 of 4 PageID# 16 AFFIRMATIVE DEFENSES 1. Spirit denies all allegations of the Complaint not expressly admitted by it, and demands strict proof of all denied allegations. 2. Plaintiff has failed to state a claim upon which relief can be granted. 3. Plaintiff s damages, if any, are the result of the negligence, intentional acts, and/or fault of third parties, other than Spirit, which includes but is not limited to the comparative negligence of the Plaintiff. discovery. 4. Spirit affirmatively states that Plaintiff has failed to mitigate his damages. 5. Spirit reserves the right to amend its affirmative defenses pending completion of WHEREFORE, having fully answered the Complaint, Spirit Cruises, LLC requests that Plaintiff s Complaint be dismissed and that Spirit Cruises, LLC be awarded its costs and attorneys fees herein, and for any other relief the Court deems just and proper. Edward J. Powers, Esq. (VSB No Jennifer L. Eaton, Esq. (VSB No Vandeventer Black LLP 101 West Main Street, Suite 500 Norfolk, VA Telephone: ( Facsimile: ( epowers@vanblacklaw.com jeaton@vanblacklaw.com Counsel for Spirit Cruises, LLC SPIRIT CRUISES, LLC By: /s/ Jennifer L. Eaton Of Counsel 3

17 Case 2:18-cv HCM-RJK Document 1-2 Filed 07/03/18 Page 4 of 4 PageID# 17 CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing pleading was electronically filed with the Court s ECF system. The undersigned further certifies that a copy of the foregoing Answer and Affirmative Defenses has also been served via first class mail, postage-paid and addressed to: Edwin S. Booth, Esquire RULOFF, SWAIN, HADDAD, MORECOCK TALBERT & WOODWARD, P.C th Street Virginia Beach, Virginia Direct Dial Facsimile ebooth@srgslaw.com Counsel for Plaintiff : /s/ Jennifer L. Eaton Edward J. Powers, Esq. (VSB No Jennifer L. Eaton, Esq. (VSB No Vandeventer Black LLP 101 West Main Street, Suite 500 Norfolk, VA Telephone: ( Facsimile: ( epowers@vanblacklaw.com jeaton@vanblacklaw.com Counsel for Spirit Cruises, LLC 4

18 Case 2:18-cv HCM-RJK Document 1-3 Filed 07/03/18 Page 1 of 1 PageID# 18 JS 44 (Rev. 06/17 CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM. I. (a PLAINTIFFS DEFENDANTS JEFFREY MAKUCH SPIRIT CRUISES, LLC AND PRITZKER/VRS INVESTORS LLC (b County of Residence of First Listed Plaintiff New York (EXCEPT IN U.S. PLAINTIFF CASES County of Residence of First Listed Defendant Chicago, Illinois (IN U.S. PLAINTIFF CASES ONLY NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c Attorneys (Firm Name, Address, and Telephone Number Attorneys (If Known Edwin S. booth, Ruloff, Swain, Haddad, Morecock, Talbert & Woodward, P.C., th Strret, Virginia Beach, Virginia 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 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State 2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country IV. NATURE OF SUIT (Place an X in One Box Only Click here for: Nature of Suit Code Descriptions. CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC False Claims Act 120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC (a 140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment 150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust & Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking 151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce 152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and (Excludes Veterans 345 Marine Product Liability 840 Trademark Corrupt Organizations 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit of Veteran s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff 490 Cable/Sat TV 160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung ( Securities/Commodities/ 190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g Exchange 195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions 196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g 891 Agricultural Acts 362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters Medical Malpractice Leave Act 895 Freedom of Information REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act 210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration 220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant 899 Administrative Procedure 230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS Third Party Act/Review or Appeal of 240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision 245 Tort Product Liability Accommodations 530 General 950 Constitutionality of 290 All Other Real Property 445 Amer. w/disabilities Death Penalty IMMIGRATION State Statutes Employment Other: 462 Naturalization Application 446 Amer. w/disabilities Mandamus & Other 465 Other Immigration Other 550 Civil Rights Actions 448 Education 555 Prison Condition 560 Civil Detainee - Conditions of Confinement V. ORIGIN (Place an X in One Box Only 1 Original 2 Removed from Proceeding State Court VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S IF ANY DATE FOR OFFICE USE ONLY 3 Remanded from 4 Reinstated or 5 Transferred from 6 Appellate Court Reopened Another District (specify Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity: 28 U.S.C. 1332, 1441, and 1446 Brief description of cause: Maritime Personal Injury CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P. (See instructions: DEMAND $ 373, JUDGE SIGNATURE OF ATTORNEY OF RECORD 07/03/2018 /s/ Jennifer L. Eaton Edward J. Powers and Jennifer L. Eaton, Vandeventer Black LLP 101 W. Main St., Suite 500, Norfolk, Virginia Multidistrict Litigation - Transfer 8 Multidistrict Litigation - Direct File CHECK YES only if demanded in complaint: JURY DEMAND: Yes No DOCKET NUMBER RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE