STERN & KILCULLEN, LLC 325 Columbia Turnpike Florham Park, New Jersey 07932 Telephone: 973-535-1900 Facsimile:

973-535-9664 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

THE HERTZ CORPORATION, Plaintiff, v. PIKE HOLDINGS, INC. d/b/a PIKE NOTICE OF REMOVAL INTERNET HOLDINGS, INC.; SAMBREEL HOLDINGS, LLC; YONTOO, LLC; WEB DEALS INTERACTIVE, LLC; STERKLY, LLC; and KITEWATER, LLC, Defendants. Civil Action No:

Defendants Pike Holdings, Inc. d/b/a Pike Internet Holdings, Inc., Sambreel Holdings LLC, Yontoo, LLC, Web Deals Interactive, LLC, Sterkly, LLC, and Kitewater, LLC (collectively Pike) hereby remove Case Number C-247-12 from the Superior Court of New Jersey, Chancery Division: Bergen County, to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. 1331, 1338, 1367, 1441, and 1446, and in support of its removal state as follows: PROCEDURAL HISTORY 1. On August 17, 2012, The Hertz Corporation (Hertz) filed a Verified Complaint

in the Superior Court of New Jersey, Chancery Division: Bergen County styled The Hertz

Corporation v. Pike Holdings, Inc. d/b/a Pike Internet Holdings, Inc. et al., Case No. C-247-12 (the State Court Action). A copy of the Verified Complaint is attached as Exhibit 1 hereto. 2. Hertz filed its Verified Complaint with a Brief, Certification and Affidavit (the

Preliminary Injunction Filings) by way of an Order to Show Cause seeking a Preliminary Injunction. A copy of the Order to Show Cause is attached as Exhibit 2. A copy of the Brief is attached as Exhibit 3. A copy of the Certification of David S. Gold is attached as Exhibit 4. A copy of the Affidavit of Jeffrey G. Bolas is attached as Exhibit 5. 3. Pikes registered agent in Delaware was served with the Order to Show Cause,

Verified Complaint, and Preliminary Injunction Filings on August 21, 2012. A copy of the Notice of Service is attached as Exhibit 6. Pikes registered agent sent electronic copies of the Order to Show Cause, Verified Complaint, and Preliminary Injunction Filings to Pike on August 22, 2012. 4. On August 24, 2012, Hertz filed a pro hac vice motion. A copy of that motion is

attached as Exhibit 7. On September 12, 2012, Pike filed a pro hac vice motion. A copy of that motion is attached as Exhibit 8. 5. On September 12, 2012, the court granted Pikes pro hac vice motion. A copy of

that order is attached as Exhibit 9. 6. On September 13, 2012, the court granted Hertzs pro hac vice motion. A copy of

that order is attached as Exhibit 10. 7. Hertzs application for a Preliminary Injunction was resolved by way of a Consent

Order dated September 14, 2012. A copy of that Consent Order is attached as Exhibit 11.

FEDERAL QUESTION JURISDICTION 8. This Court has federal question jurisdiction over all counts in the Complaint:

Count One (New Jersey Computer Related Offenses Act), Count Two (Tortious Interference with Prospective Economic Advantage), Count Three (Unfair Competition), and Count Four (Breach of Contract), pursuant to 28 U.S.C. 1331 & 1338. These state-law claims are preempted by the Federal Copyright Act and therefore arise under federal law1 because (a) they fall within the general subject matter of copyright and (b) the rights Hertz is seeking to enforce are equivalent to the rights protected by the Copyright Act. See Mortgage Mkt. Guide, LLC v. Freedman Report, LLC, Civil Action No. 06-CV-140-FLW, 2008 WL 2991570, at *37 (D.N.J. July 28, 2008) (setting forth two-element test for Copyright Act preemption). 9. This action falls within the subject matter of copyright because the claims relate

to the use and alteration of information contained on Hertzs website. This Court has previously concluded that complaints regarding the use of information contained on websites that contain copyrighted material are within the subject matter of copyright. Id. at *38. 10. Hertzs claims also meet the equivalence requirement because they are, at

bottom, complaints about Pikes use, copying, and modification of source code (and other

Although courts generally determine jurisdiction by considering the allegations of the complaint without regard to defenses, the Supreme Court has explained that the preemptive force of certain federal statutes is so strong as to convert[] an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule. Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987) (internal quotations and citations omitted). Courts have consistently held that state law claims that are preempted by the Copyright Act fall within this complete preemption doctrine and are therefore removable. See, e.g., Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 230-33 (4th Cir. 1993) (holding that a defendant may remove a case that alleges state law causes of actions that are preempted by the Copyright Act); Briapatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004) (holding that district courts have jurisdiction over state law claims that are preempted by the Copyright Act); Ritchie v. Williams, 395 F.3d 283, 285-87 (6th Cir. 2005) (holding that state law claims that are preempted by Copyright Act are removable). 3

information) provided by Hertz and the resulting alteration of the visual display seen by internet users when they are viewing Hertzs website. See Verified Complaint 1 (stating that this action arises from Pikes offering software that purposefully injects unauthorized computer programming code into the source code of Hertzs website . . . and thereby modifies the HERTZ.COM home page). Courts have concluded that claims similar to Hertzs are

preempted. See, e.g., Rosciszewski, 1 F.3d at 229-30 (concluding that claim under the Virginia Computer Crimes Act was preempted because it was based upon unauthorized copying of software); Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 270 (5th Cir. 1988) (holding that claim seeking to prevent decompiling or disassembling software under the Louisiana Software License Enforcement Act was preempted); Integrative Nutrition, Inc. v. Academy of Healing Nutrition, 476 F. Supp. 2d 291, 296-97 (S.D.N.Y. 2007) (holding that unfair competition claim based on reverse passing off was preempted); Harper & Row Publishers, Inc. v. Nation Enter., 723 F.2d 195, 201 (2d Cir. 1983) (holding that a tortious interference claim was preempted because it was based upon claim to the economic benefit of creating derivative works), reversed on other grounds, 471 U.S. 539 (1985); Mortgage Mkt. Guide, 2008 WL 2991570, at *37-40 (holding that claim to enforce provision of website terms of service that prohibited commercial use of content was preempted). SUPPLEMENTAL JURISDICTION 11. Should this Court conclude that it has federal question jurisdiction over some (but

not all) of Hertzs claims, the Court has supplemental jurisdiction over the remaining claims pursuant to 28 U.S.C. 1367.

ALL PROCEDURAL REQUIREMENTS HAVE BEEN SATISFIED 12. Pursuant to 28 U.S.C. 1446(a) and Local Rule 5.1(e), true and correct copies of

all of the process, pleadings and orders from the state court action are attached to this Notice of Removal. 13. This Notice of Removal has been filed within 30 days of the date that Pike was

served with the Order to Show Cause and Verified Complaint in this matter. Removal is therefore timely in accordance with 28 U.S.C. 1446(b). 14. Venue is proper in this Court pursuant to 28 U.S.C. 1441(a) and 1446(a)

because, upon information and believe, the injuries alleged by Plaintiff manifested themselves in Bergen County, New Jersey, where Plaintiff initially filed this action, which is in the Newark Vicinage of the United States District Court for the District of New Jersey. CONCLUSION 15. By this Notice of Removal, Pike does not waive any objections it may have as to

service, jurisdiction or venue, or any other defenses or objection it may have to this action. Pike intends no admission of fact, law, or liability by this Notice, and expressly reserves all defenses, motions, and pleas. 16. Written notice of this removal is being given to the Superior Court of New Jersey,

Law Division, Bergen County. A copy of the Notice being filed with the Superior Court of New Jersey is marked Exhibit 12 and attached hereto, exclusive of attachments, which attachments consist of this Notice and its attachments. STERN & KILCULLEN, LLC Attorneys for Defendants s/ Michael Dinger_____________________ Michael Dinger Date: September 20, 2012 5