FILED: NEW YORK COUNTY CLERK 10/03/2016 05:58 PM INDEX NO. 654871/2016 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 10/03/2016
Case 1:16-cv-07734 Document 1 Filed 10/03/16 Page 1 of 7 Anne B. Sekel, Esq. FOLEY & LARDNER LLP 90 Park Avenue New York, New York 10016 Telephone: (212 338-3417 Facsimile: (212 687-2329 asekel@foley.com Counsel for Fiserv Solutions, LLC, Fiserv Solutions, Inc. and Fiserv, Inc. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK PARKS HERITAGE FEDERAL CREDIT UNION, vs. Plaintiff, FISERV SOLUTIONS, INC., FISERV SOLUTIONS, LLC, and FISERV, INC., Defendants. Case No. 16-cv-7734 (Removed from New York State Supreme Court, New York County, Index No. 654871/2016 NOTICE OF REMOVAL PLEASE TAKE NOTICE that, pursuant to 28 U.S.C. 1332, 1441, and 1446, Defendants Fiserv Solutions, Inc., 1 now known as Fiserv Solutions, LLC, and Fiserv, Inc. (together Defendants hereby file this Notice of Removal and remove an action brought against them by Plaintiff Parks Heritage Federal Credit Union ( Parks Heritage in the New York County Supreme Court of the State of New York, bearing Index No. 654871/2016 (the State Court Action, to the United States District Court for the Southern District of New York 1 The Summons incorrectly identifies one of the Defendants as Fiserv Solutions, Inc., an entity that no longer exists and that is now known as Fiserv Solutions, LLC. Accordingly, the only Defendants properly named in this action are Fiserv Solutions, LLC and Fiserv, Inc.
Case 1:16-cv-07734 Document 1 Filed 10/03/16 Page 2 of 7 on the grounds that there is jurisdiction in this Court pursuant to 28 U.S.C. 1332(a. The grounds for removal are as follows: THE STATE COURT ACTION 1. Parks Heritage filed the State Court Action on September 14, 2016 in New York State Supreme Court, New York County, bearing Index No. 654871/2016. 2. This action arises out of an agreement between the parties under which Fiserv provided financial services software and related services to Parks Heritage, and Parks Heritage agreed to pay fees to Fiserv. 3. Parks Heritage s Summons with Notice and attached exhibits alleges claims against Fiserv for breach of the parties agreement, conversion, breach of fiduciary duties, breach of bailee duties, fraud, constructive fraud, negligent misrepresentation, negligence, gross negligence, tortious interference with Plaintiff s contracts and prospective economic advantage, unjust enrichment, deceptive trade acts and practices, mandatory and prohibitory injunctions, and declaratory relief. Ex. A, Summons at 2. 4. According to the Summons, the relief Parks Heritage seeks includes: (a money damages in excess of $2,500,000, plus attorneys fees, costs, disbursements, additional allowances, and prejudgment and post-judgment interest; (b injunctive relief; (c declaratory relief; and (d other further relief the Court deems appropriate. Ex. A, Summons at 2, (i-(iv. BASIS FOR DIVERSITY JURISDICTION 5. Pursuant to 28 U.S.C. 1441(a and 28 U.S.C. 1332, this action is a civil action over which this Court would have original jurisdiction. 6. In relevant part, 28 U.S.C. 1332(a provides: 2
Case 1:16-cv-07734 Document 1 Filed 10/03/16 Page 3 of 7 The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1 citizens of different States.... 28 U.S.C. 1332(a(1. Both the diversity of citizenship and amount in controversy requirements are satisfied here. 7. Plaintiff Parks Heritage was, at the commencement of this action, is now, and at all pertinent times has been a federally chartered New York credit union that maintains its principal place of business and its only branch location at 5 Murray Street, Glen Falls, New York. See Declaration of Kate Gehl, 3-4. As a result, Parks Heritage is a citizen of the State of New York and no other state. 28 U.S.C. 1332(a(1. 8. Before March 31, 2015, Fiserv Solutions, Inc. was a corporation organized under the laws of the State of Wisconsin that maintained its principal place of business at 255 Fiserv Drive, Brookfield, Wisconsin. See Declaration of Eric Nelson, ( Nelson Decl. 3. As a result, while it was in existence. Fiserv Solutions, Inc. was a citizen of the State of Wisconsin and no other state. 28 U.S.C. 1332(a(1. 9. Effective March 31, 2015, Fiserv Solutions, Inc. underwent a business entity change and became Fiserv Solutions, LLC, a Wisconsin limited liability company. Nelson Decl. 4. 10. Defendant Fiserv Solutions, LLC was at the commencement of this action, and is now, a limited liability company organized and existing under the laws of the State of Wisconsin that maintains its principal place of business at 255 Fiserv Drive, Brookfield, Wisconsin. Nelson Decl. 5. The sole member of Fiserv Solutions, LLC is Fiserv, Inc. Nelson Decl. 6. 3
Case 1:16-cv-07734 Document 1 Filed 10/03/16 Page 4 of 7 11. At the commencement of this action, Fiserv, Inc. was, and is now, a corporation organized under the laws of the State of Wisconsin that maintains its principal place of business at 255 Fiserv Drive, Brookfield, Wisconsin. Nelson Decl. 6. 12. As a result, Fiserv Solutions, LLC and Fiserv, Inc. are both citizens of the State of Wisconsin and no other state. 28 U.S.C. 1332(a(1. 13. In its Summons, Parks Heritage seeks monetary relief in excess of $2,500,000, exclusive of interests and costs. Ex. A, Summons at 2, (i. 14. Accordingly, the above-entitled action is a civil action over which this Court would have original jurisdiction pursuant to 28 U.S.C. 1332(a. The action therefore may be removed to this Court pursuant to 28 U.S.C. 1441 in that the action is between citizens of different states, so there is complete diversity between the parties, and the matter in controversy, exclusive of interest and costs, exceeds the sum or value of $75,000. ALL PROCEDURAL REQUIREMENTS FOR REMOVAL HAVE BEEN SATISFIED 15. Fiserv Solutions, Inc. and Fiserv Solutions, LLC were served through their registered agent with a copy of the Summons with Notice on September 19, 2016, and Fiserv, Inc. was served through its registered agent with a copy of the Summons with Notice on September 21, 2016. Defendants have not yet been served with a copy of the Complaint, nor has one been filed. In turn, this Notice of Removal is timely filed under 28 U.S.C. 1446(b, as the Complaint has not yet been received, and therefore this Notice of Removal is being filed well before expiration of the 30-day removal period, which expires only after service of the Complaint. See Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999. 4
Case 1:16-cv-07734 Document 1 Filed 10/03/16 Page 5 of 7 16. Pursuant to 28 U.S.C. 1446(a, true and correct copies of all process, pleadings, and orders from the State Court Action which have been served upon Defendants are being filed with this Notice of Removal as Exhibit A. 17. Removal to this Court is proper pursuant to 28 U.S.C. 1441(a and 1446(a because the U.S. District Court for the Southern District of New York is the federal judicial district embracing the New York State Supreme Court, New York County, where the State Court Action originally was filed. 18. Pursuant to 28 U.S.C. 1446(d, the undersigned counsel certifies that a Notice of Filing of Notice of Removal, along with a copy of this Notice of Removal, will be promptly filed with the clerk of the New York State Supreme Court, County of New York, and Fiserv is providing written notice of the filing of this Notice of Removal to all adverse parties. CONCLUSION 19. By this Notice of Removal, Defendants do not waive any objections they may have as to service, jurisdiction, or venue, or any other defenses or objections they may have to this action. In addition, no waiver and no admission of fact, law, or liability, including without limitation the amount of damages, if any, is intended by this Notice of Removal, and all defenses, affirmative defenses, and rights are hereby reserved. Defendants also respectfully reserve the right to submit additional evidence supporting this Notice of Removal if Parks Heritage files a motion to remand this action to state court. 5
Case 1:16-cv-07734 Document 1 Filed 10/03/16 Page 6 of 7 WHEREFORE, Defendants hereby remove this action from the New York State Supreme Court, County of New York, to the United States District Court for the Southern District of New York. Dated: October 3, 2016. Respectfully submitted, /s/ Anne B. Sekel Anne B. Sekel FOLEY & LARDNER LLP 90 Park Avenue New York, New York 10016 Telephone: (212 338-3417 Facsimile: (212 687-2329 asekel@foley.com Of Counsel: Andrew J. Wronski Elizabeth A. N. Haas Kate E. Gehl FOLEY & LARDNER LLP 777 East Wisconsin Avenue Milwaukee, WI 53202 awronski@foley.com ehaas@foley.com kgehl@foley.com (414 271-2400 Counsel for Fiserv Solutions, LLC, Fiserv Solutions, Inc., and Fiserv, Inc. 6
Case 1:16-cv-07734 Document 1 Filed 10/03/16 Page 7 of 7 CERTIFICATE OF SERVICE I, Anne B. Sekel, hereby certify that a copy of the foregoing Notice of Removal and accompanying Declarations of Kate Gehl and Eric Nelson were served on the following counsel for Plaintiff via ECF, electronic mail and United States Mail, proper first-class postage affixed, this 3rd day of October, 2016. Charles J. Nerko Joel S. Forman VedderPrice P.C. 1633 Broadway, 47th Floor New York, New York 10019 Attorney for Parks Heritage Federal Credit Union /s/ Anne B. Sekel Anne B. Sekel 7