Times Square Tower 7 Times Square New York, NY 10036 Telephone: (212) 326-2000 Facsimile: (212) 326-2061
ADAM KARR (pro hac vice admission pending) OMELVENY & MYERS LLP 610 Newport Center Drive, 17th Floor Newport Beach, CA 92660-6429 Telephone: (949) 760-9600 Facsimile: (949) 823-6994
JUSTIN WALKER (pro hac vice admission pending) OMELVENY & MYERS LLP 2765 Sand Hill Road Menlo Park, CA 94025 Telephone: (650) 473-2600 Facsimile: (650) 473-2601 Attorneys for Defendants Magento, Inc., Varien, Inc., eBay, Inc., and PayPal, Inc.
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
Arthur Lawida and Saas Accelerator, LLC, Plaintiffs, v. Magento, Inc., Varien, Inc., eBay, Inc., PayPal, Inc., John Does 1-10 and ABC Corps 1-10 Defendants.
Case Number: NOTICE OF REMOVAL
Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 1 of 19 PageID: 218405 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 1 of 19 PageID: 1 2 TO THE CLERK OF THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE THAT, pursuant to 28 U.S.C. 1332 and 1446, Defendants Magento, Inc. (Magento), PayPal, Inc. (PayPal), and eBay, Inc. (eBay) (collectively Defendants), hereby remove this civil action from the Superior Court of New Jersey, Bergen County to the United States District Court for the District of New Jersey. Removal is proper because this Court has original diversity-of-citizenship jurisdiction under 28 U.S. C. 1332, as the amount in controversy exceeds the sum or value of $75,000 and there is complete diversity of citizenship between the Plaintiffs and all properly-named defendants. Complete diversity exists because Defendants are citizens of California and Delaware and Plaintiffs are citizens of New Jersey. Additionally, although the amount in controversy cannot be determined at this time, Plaintiffs allegations that they are entitled to one percent of equity means the value of the dispute exceeds $75,000. This Notice of Removal is timely because it has been filed within thirty days of the Defendants being served with the summons and complaint. See 28 U.S.C. 1446(b); Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). This Court, therefore, has original jurisdiction based upon diversity of citizenship. 28 U.S.C. 1332. DESCRIPTION OF ACTION AND PROCEDURAL BACKGROUND 1. This action was filed, on or about July 29, 2011, in the Superior Court of New Jersey, Bergen County, and assigned Docket No. L-6576-11. A true and correct copy of the Summons and Complaint is attached hereto as Exhibit A. 2. This matter is a civil action wherein Plaintiffs Arthur Lawida and Saas Accelerator, LLC (Plaintiffs) assert the following five causes of action: (i) breach of contract; (ii) breach of the duties of good faith and fair dealing; (iii) unjust enrichment; (iv) negligent Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 2 of 19 PageID: 218406 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 2 of 19 PageID: 2 3 infliction of economic loss; and (v) promissory estoppel. 3. Plaintiffs delivered a copy of the Summons and Complaint in this matter to Defendants on August 12, 2011, via FedEx delivery. (Declaration of Keren Aminia In Support of Defendants Notice of Removal (Aminia Decl.) 3.) This does not constitute proper service under Rule 4:4-3(a) of the New Jersey Court Rules, which requires personal service or service by registered or certified mail if personal service is not possible after a reasonable good faith effort to make personal service. Defendants have not yet filed an answer or other responsive pleading. 4. No other pleadings or orders have been served on Defendants. Timeliness of Removal 5. Removal of this case is timely pursuant to 28 U.S.C. 1446(b). Defendants filed this Notice of Removal within thirty days of the Defendants being served with the summons and complaint. Jurisdiction: Diversity of Citizenship 6. This Court has original jurisdiction over this action based on diversity of citizenship. 28 U.S.C. 1332. 7. Here, diversity of citizenship exists between Plaintiffs and Defendants as follows: a. Plaintiff Arthur Lawida (Lawida) is a citizen of and domiciled in the state of New Jersey. (Complaint at 1, 4; Aminia Decl. 4.) For the purposes of diversity jurisdiction, Lawida is a citizen of New Jersey. b. Plaintiff SaaS Accelerator, LLC (SaaS) is a limited liability company organized and existing under the laws of the State of Arizona with Lawida and Meredith Lawida Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 3 of 19 PageID: 218407 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 3 of 19 PageID: 3 4 as its sole members. (Aminia Decl. 5.) SaaSs members are either domiciled in New Jersey or Arizona. Id. For purposes of diversity jurisdiction, SaaS is citizen of New Jersey and/or Arizona. Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010) ([T]he citizenship of an LLC is determined by the citizenship of its members.). c. Magento is a is a wholly-owned subsidiary of eBay incorporated in the State of Delaware with its headquarters and principal place of business at 10441 Jefferson Blvd, Suite 200, Culver City, CA 90232. (Complaint at 2; Aminia Decl. 6.) For purposes of diversity jurisdiction, Magento is a citizen of Delaware and California. Hertz, 130 S. Ct. 1192- 93. d. Defendant Varien, Inc. refers to a fictitious name for Magento. (Aminia Decl. 7.) e. eBay is incorporated in the State of Delaware with its headquarters and principal place of business at 2145 Hamilton Avenue, San Jose, California 95125. (Complaint at 2; Aminia Decl. 8.) For purposes of diversity jurisdiction, eBay is a citizen of Delaware and California. Hertz, 130 S. Ct. 1192-93. f. PayPal is a wholly-owned subsidiary of eBay incorporated in the State of Delaware with its headquarters and principal place of business at 2145 Hamilton Avenue, San Jose, California 95125. (Complaint at 2; Aminia Decl. 9.) For purposes of diversity jurisdiction, PayPal is a citizen of Delaware and California. See Hertz Corp., 130 S. Ct. at 1192- 93. Jurisdiction: Amount in Controversy 8. In addition to diversity of citizenship, the amount in controversy exceeds the sum or value of $75,000, exclusive of interest or costs. 28 U.S.C. 1332(a). Plaintiffs have requested Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 4 of 19 PageID: 218408 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 4 of 19 PageID: 4 5 damages, together with interest, late fees, costs, attorneys [sic] fees and such other and further relief as the Court may deem just and proper for each claim asserted in connection with Plaintiffs allegation that they are entitled to a 1% equity stake in the Company. (Complaint at 5.) The value of one percent of the equity of Magento on March 31, 2010, was greater than $75,000. (Aminia Decl. 10.) The value of Magento equity has not decreased since March 31, 2010. Id. Thus, the amount in controversy requirement for subject-matter jurisdiction is satisfied. 28 U.S.C. 1332(a). Joinder of Co-Defendants in Removal 9. All Defendants have joined in this Notice of Removal. Venue 10. Filing the notice of removal is proper in this district because the Superior Court of New Jersey, Bergen County is located within the Federal District of New Jersey. Therefore, venue for this Notice is proper pursuant to 28 U.S.C. 110 because this is the district and division embracing the place where such action is pending. 28 U.S.C. 1441(a). Conclusion 11. This Court has removal jurisdiction over this action under 28 U.S.C. 1332 and 1446 because diversity of citizenship exists and this Notice has been filed within thirty days of Defendants being served with the summons and complaint and within one year of the original filing of the action. See 28 U.S.C. 1446(b). Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 5 of 19 PageID: 218409 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 5 of 19 PageID: 5 6 12. Written notice of the filing of this Notice of Removal is hereby given to Plaintiffs. A Notice of filing of this Notice of Removal will be filed with the Clerk of the Superior Court of New Jersey, Bergen County. Dated: September 12, 2011
Respectfully submitted:
OMELVENY &MYERS LLP
By: /s/ Jeffrey I. Kohn ________ Jeffrey I. Kohn Times Square Tower 7 Times Square New York, NY 10036 Telephone: (212) 326-2000 Facsimile: (212) 326-2061 E-mail: jkohn@omm.com
Adam Karr (pro hac vice admission pending) 610 Newport Center Drive, 17th Floor Newport Beach, CA 92660-6429 Telephone: (949) 760-9600 Facsimile: (949) 823-6994 E-mail: akarr@omm.com
Justin Walker (pro hac vice admission pending) 2765 Sand Hill Road Menlo Park, CA 94025 Telephone: (650) 473-2600 Facsimile: (650) 473-2601 E-mail: jwalker@omm.com
Attorneys for Defendants Magento, Inc., Varien, Inc., eBay, Inc., and PayPal, Inc.
Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 6 of 19 PageID: 218410 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 6 of 19 PageID: 6
EXHIBIT A Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 7 of 19 PageID: 218411 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 7 of 19 PageID: 7 Attorney(s): Law Firm: Address: JOHN CARRINO, ESQ. CARRINO GALLAGHER, LLC 548 Franklin Avenue Nutley, New Jersey 07110 Telephone No.: (973) 667-0052 Fax No.: (973) 667-0023 E-mail: jc@carrino.com Attorney(s) for Plaintiff(s): ARTHUR LAWIDA and SAAS ACCELERATOR ARTHUR LAWIDA and SAAS ACCELERATOR Plaintiff(s) vs. MAGENTa, INC. Defendant(s) From the State of New Jersey To the Defendant(s) Named Above: MAGENTa, INC. SUPERIOR COURT OF NEW JERSEY LAWDIVISION BERGEN COUNTY DOCKET NO. L-6576-11 CIVIL ACTION ummoun The plaintiff, named above, has filed a lawsuit against you in the Superior Court of New Jersey. The complaint attached to this summons states the basis for this lawsuit. If you dispute this complaint, you or your attorney must file a written answer or motion and proof of service with the deputy clerk of the Superior Court in the county listed above within 35 days from the date you received this summons, not counting the date you received it. (The address of each deputy clerk of the Superior Court is provided.) If the complaint is one in foreclosure, then you must file your written answer or motion and proof of service with the Clerk of the Superior Court, Hughes Justice Complex, P.O. Box 971, Trenton, NJ 08625-0971. A filing fee payable to the Treasurer, State of New Jersey, and a completed Case Information Statement (available from the deputy clerk of the Superior Court) must accompany your answer or motion when it is filed. You must also send a copy of your answer or motion to plaintiffs attorney whose name and address appear above, or to plaintiff, if no attorney is named above. Atelephone call will not protect your rights; you must file and serve a written answer or motion (with fee of $ and completed Case Information Statement) if you want the court to hear your defense. If you do not file and serve a written answer or motion within 35 days, the court may enter a judgment against you for the relief plaintiff demands, plus interest and costs of suit. If judgment is entered against you, the Sheriff may seize your money, wages or property to pay all or part of the judgment. If you cannot afford an attorney, you may call the Legal Services office in the county where you live. A list of these offices is provided. If you do not have an attorney and are not eligible for free legal assistance, you may obtain a referral to an attorney by calling one of the Lawyer Referral Services. Alist of these numbers is also provided. Dated: August 11, 2011 Name of Defendant To Be Served: MAGENTa, INC. Address of Defendant To Be Served: 10441 Jefferson Blvd. Suite 200 Culver City, CA 90232 Note: Adopted July 13, 1994, effective September 1, 1994; amended June 28,1996, effective September 1, 1996; address/phone information updated July 1, 1999, effective September 1, 1999; amended July 12, 2002 to be effective September 3, 2002; amended July 27, 2006 to be effective September 1, 2006; addl'ess/phone information updated October 10, 2006 to be effective immediately; address/phone information updated November 1, 2006 to be effective immediately; address/phone information updated November 17, 2006 to be effective immediately. 31 - Summons - Law or Chancery Divisions Superior Court - Appendix XII-A Rev.11/17/06 P3/07 Powered by HotDocs'" Printed by ALL-STATE LEGAL A Division of ALL-STATE International, Inc. www.aslegaI.com 800.222.0510 Page 1 Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 8 of 19 PageID: 218412 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 8 of 19 PageID: 8 ATLANTIC COUNTY: Deputy Clerk of the Superior Court Civil Division, Direct Filing 1201 Bacharach Blvd., First FI. Atlantic City, NJ 08401 LAWYER REFERRAL (609) 345-3444 LEGAL SERVICES (609) 348-4200 BERGEN COUNTY: Deputy Clerk of the Superior Court Case Processing Section, Room 119 Justice Center, 10 Main Street Hackensack, NJ 07601-0769 LAWYER REFERRAL (201) 488-0044 LEGAL SERVICES (201) 487-2166 BURLINGTON COUNTY: Deputy Clerk of the Superior Court Central Processing Office Attn: Judicial Intake Fil'st Floor, Court Facility, 49 Rancocas Road Mount Holly, NJ 08060 LAWYER REFERRAL (609) 261-4862 LEGAL SERVICES (800) 496-4570 CAMDEN COUNTY: Deputy Clel'k of the Superior COUl't Civil Pl'ocessing Office First Flool', Hall of Recol'ds 101 South Fifth Stl'eet Camden, NJ 08103 LAWYER REFERRAL (856) 964-4520 LEGAL SERVICES (856) 964-2010 CAPE MAY COUNTY: Deputy Clerk of the Supel'iol' COUl't 9 North Main Street, Box DN-209 Cape May Court House, NJ 08210 LAWYER REFERRAL (609) 463-0313 LEGAL SERVICES (609) 465-3001 CUMBERLAND COUNTY: Deputy Clerk of the Superior Court Civil Case Management Office Bl'oad & Fayette Streets, P.O. Box 615 Bridgeton, NJ 08302 LAWYER REFERRAL (856) 692-6207 LEGAL SERVICES (856) 451-0003 ESSEX COUNTY: Deputy Clerk of the Superior Court 50 West Market Street, Room 131 Newark, N.J 07102 LAWYER REFERRAL (78) 622-6207 LEGAL SERVICES (973) 624-4500 31 - Summons - Law or Chancery Divisions Superior Court - Appendix XII-A Rev.11/17/06 P3/07 GLOUCESTER COUNTY: Deputy Clerk of the Superior Court Civil Case Management Office Attn: Intake First Floor, Court House 1 North Broad Street, P.O. Box 750 Woodbury, NJ 08096 LAWYER REFERRAL (856) 848-4589 LEGAL SERVICES (856) 848-5360 HUDSON COUNTY: Deputy Clerk of the Superior Court Civil Recol'ds Dept. Brennan Courthouse, First Floor 583 Newark Avenue Jersey City, NJ 07306 LAWYER REFERRAL (201) 798-2727 LEGAL SERVICES (201) 792-6363 HUNTERDON COUNTY: Deputy Clerk of the Superior Court Civil Division 65 Park Avenue Flemington, NJ 08822 LAWYER REFERRAL (908) 263-6109 LEGAL SERVICES (908) 782-7979 MERCER COUNTY: Deputy Clerk of the Superior Court Local Filing Office, Courthouse 175 South Broad St., P.O. Box 8068 Trenton, NJ 08650 LAWYER REFERRAL (609) 585-6200 LEGAL SERVICES (609) 695-6249 MIDDLESEX COUNTY: Deputy Clel'k of the Superior Court Administration Building, 3 ed Floor 1 Kennedy Square, P.O. Box 2633 New Brunswick, NJ 08903-2633 LAWYER REFERRAL (732) 828-0053 LEGAL SERVICES (732) 249-7600 MONMOUTH COUNTY: Deputy Clerk of the Superior Court Monmouth County Courthouse 71 Monument Park, P.O. Box 1269 Freehold, NJ 07728-1269 LAWYER REFERRAL (732) 431-5544 LEGAL SERVICES (732) 866-0020 MORRIS COUNTY: Deputy Clerk of the Superior Court Civil Division 30 Schuyler Place, P.O. Box 910 Morristown, NJ 07960-0910 LAWYER REFERRAL (973) 267-5882 LEGAL SERVICES (973) 285-6911 Powered by HotDocs(" OCEAN COUNTY: Deputy Clerk of the Superior Court Court House, Room 119 118 Washington Street Toms River, NJ 08754 LAWYER REFERRAL (732) 240-3666 LEGAL SERVICES (732) 341-2727 PASSAIC COUNTY: Deputy Clerk of the Superior Court Civil Division Passaic County Court House 77 Hamilton Street Paterson, NJ 07505 LAWYER REFERRAL (973) 278-9223 LEGAL SERVICES (973) 523-2900 SALEM COUNTY: Deputy Clerk of the Superior Court 92 Market Street, P.O. Box 18 Salem, NJ 08079 LAWYER REFERRAL (856) 678-8363 LEGAL SERVICES (856) 451-0003 SOMERSET COUNTY: Deputy Clerk of the Supel'ior Court Civil Division Office New Court House, 3''<1 Floor P.O. Box 3000 Somerville, NJ 08876 LAWYER REFERRAL (908) 685-2323 LEGAL SERVICES (908) 231-0840 SUSSEX COUNTY: Deputy Clerk of the Superior Court Sussex County Judicial Center 43-47 High Street Newton, NJ 07860 LAWYER REFERRAL (973) 267-5882 LEGAL SERVICES (973) 383-7400 UNION COUNTY: Deputy Clerk of the Superior Court Court House, First Floor 2 Broad Street Elizabeth, NJ 07207-6073 LAWYER REFERRAL (908) 353-4715 LEGAL SERVICES (908) 354-4340 WARREN COUNTY: Deputy Clerk of the Superior Court Civil Division Office Warren County Courthouse 413 Second Street Belvidere, N.J 07823-1500 LAWYER REFERRAL (908) 387-1835 LEGAL SERVICES (908) 475-2010 Printed by ALL-STATE LEGAL A Division of ALL-STATE International, Inc. www.aslegal.com 800.222.0510 Page 2 Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 9 of 19 PageID: 218413 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 9 of 19 PageID: 9 CARRINO GALLAGHER, LLC 548 Franklin Avenue Nutley, New Jersey 07110 P: 973-667-0052 F: 973-667-0023 Attorneys for Plaintiff Arthur Lawida and SaaS Accelerator, LLC Plaintiffs, v. Magento, Inc., Varien, Inc., Ebay, Inc., and Paypal, Inc. John Does 1-10 and ABC Corps 1- 10 (fictious names used to represent one or more unknown Defendant(s Defendants. i SUPERIOR COURT OF NEW JERSEY LAW COUNTY DOCKET NO.: I&--{ { CIVIL ACTION COMPLAINT and Jury Demand Plaintiffs, Arthur Lawida and SaaS Accelerator, LLC by way of Complaint against Defendant, hereby says: 1. Plaintiff's place of business is located at 63 John Street, Ridgewood, New Jersey 07450. 2. Defendant's place of business is located at 10441 Jefferson Blvd., Culver City, CA, 2211 North First Street, San Jose, California, and 2065 Hamilton Avenue, San Jose, California. -1- Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 10 of 19 PageID: 218414 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 10 of 19 PageID: 10 COUNT I - BREACH OF CONTRACT 3. At all time relevant hereto, plaintiff was in a business relationship with defendant. 4. Plaintiff, was provided a contract to perform work to lead the effort, manage and transform Magento's software into a SaaS Application and lead the efforts to transform Magento's business to support the operation of Magento as a Saas platform. Defendant executed a contract with Plaintiff and gave him the title of General Manager of Magento SaaS. These services were provided for Defendant between March 2010 to November 2010. All services were performed, used and accepted by Defendant to assist in their efforts to sell the company and the Defendant owes Plaintiff pursuant to their contract and mutual understanding of services. Prior to the work of Plaintiff, defendant had no experience building or operating either Saas software or a SaaS business. Defendant leveraged Plaintiff's expertise and reputation to build the software and business operations and fraudulently represented that Plaintiff was an employee of Magento in order to create the business without proper compensation to the Plaintiff. The existence and operation of this SaaS business is a key factor in Defendant's ability to sell their business and the work product of the -2- Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 11 of 19 PageID: 218415 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 11 of 19 PageID: 11 Plaintiff is a key factor in Plaintiff's ability to sell Magento to eBay and Paypal. Executives of Paypal were aware of this situation yet actively supported the Defendant's course of action. To perform the duties, Plaintiff was forced to travel from his residence and place of business in New Jersey to the offices of Defendant on a frequent basis. Plaintiff was unable to pursue or perform during this time. any other business for any other company Plaintiff made it abundantly clear that the options promised by Defendant were a key factor in Plaintiff's continuing commitment to provide these services and Defendants continued to promise that these options would be awarded. 5. On or about March 31, 2011 Defendant told Plaintiff that in addition to his compensation, Plaintiff will be provided with options representing a 1% equity stake in the Company. Plaintiff has attempted numerous times to exercise this option and get resolve to this matter but the Plaintiff wasn't successful in communications with Defendant. Over the next several months, Defendant repeatedly told Plaintiff that these options would be awarded. 6. On or about November 2010 after repeated attempts to resolve this matter, Defendant took the work product of -3- Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 12 of 19 PageID: 218416 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 12 of 19 PageID: 12 Plaintiff and drove it's Company's value by executing on the Plaintiff's SaaS business model. Defendant agreed to this compensation arrangement to Plaintiff and his action was an attempt to circumvent payment of this obligation. 7. Numerous requests have been proposed to Defendant by the Plaintiff and the Defendant has not made any effort or good faith intent to pay the debt owed to Plaintiff for services performed and benefited by Defendant. Defendant has not been willing to provide payment to the Plaintiff. WHEREFORE, plaintiff respectfully demands judgment in its favor and against the defendant on the First Count of its Complaint with damages, together with interest, late fees, costs, attorney's fees and such other and further relief as the court may deem just and proper. COUNT II - Breach of the Duties of Good Faith and Fair Dealing 8. Plaintiff repeats the foregoing allegations and makes the same apart hereof as if repeated at length. -4- Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 13 of 19 PageID: 218417 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 13 of 19 PageID: 13 9. The defendant owed the plaintiff a duty of good faith and fair dealing in connection with their responsibilities and obligations under its contract with the plaintiff. 10. Defendants breached their duty of good faith and fair dealing by refusing to make payment upon numerous demands and then utilizing and benefiting from services performed for the Magento business by the plaintiff. Defendant concluded a sale of the business which Plaintiff's work product was instrumental in that sale. 11. As a result of the defendant's conduct, plaintiff has suffered damages. WHEREFORE, plaintiff respectfully demands judgment in its favor and against the defendant on the Second Count of its Complaint for damages, together with interest, late fees, costs, attorney's fees and such other and further relief as the Court may deem just and proper. COUNT III - UNJUST ENRICHMENT 12. Plaintiff repeats the foregoing allegations and makes the same a part hereof as if repeated at length. -5- Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 14 of 19 PageID: 218418 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 14 of 19 PageID: 14 13. As a result of defendant's failure to remit payment to plaintiff after performance of services tendered, defendant has and continues to be unjustly enriched by Plaintiff's full performance to the detriment of plaintiff. WHEREFORE, plaintiff respectfully demands judgment in its favor and against the defendant on the Third Count of its Complaint for damages, together with interest, late fees, costs, attorney's fees and such other and further relief as the Court may deem just and proper. COUNT IV - NEGLIGENT INFLICTION OF ECONOMIC LOSS 14. Plaintiff repeats the foregoing allegations and makes the same apart hereof as if repeated at length. 15. Defendant knew or should have known that Plaintiff would suffer economic harm as a result of their non-payment of monies due and owed. 16. Defendant is liable for economic damages proximately caused by failing to take reasonable measures to avoid the risk -6- Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 15 of 19 PageID: 218419 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 15 of 19 PageID: 15 of causing economic damages to Plaintiff. WHEREFORE, plaintiff respectfully demands judgment in its favor and against the defendant on the Fourth Count of its Complaint for damages, together with interest, late fees, costs, attorney's fees and such other and further relief as the Court may deem just and proper. COUNT V - PROMISSORY ESTOPPEL 17. Plaintiff repeats the foregoing allegations and makes the same apart hereof as if repeated at length. 18. Plaintiff performed services for defendant at the request of Defendant. Said services were performed and defendant benefited from those services. 19. Defendants knew or should have known that those services were not gratuitous. WHEREFORE, plaintiff respectfully demands judgment in its favor and against the defendant on the Fifth Count of its Complaint for damages, together with interest, late fees, costs, -7- Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 16 of 19 PageID: 218420 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 16 of 19 PageID: 16 attorney's fees and such other and further relief as the Court may deem just and proper. -8- Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 17 of 19 PageID: 218421 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 17 of 19 PageID: 17 DESIGNATION OF TRIAL COUNSEL Pursuant to Rule 4:25-4, John Carrino, Esq. ~ s hereby designated as trial counsel in the above matter. CARRINO GALLAGHER, LLC Attorneys for Plaintiff Dated: July 15, 2011 -9- Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 18 of 19 PageID: 218422 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 18 of 19 PageID: 18 CERTIFICATION PURSUANT TO RULE 4:5-1 I certify, pursuant to Rule 4:5-1, that the matter in controversy is not the subject of any other action or arbitration proceeding, now or contemplated, and that no other parties should be joined in this action at this time. CARRINO GALLAGHER, LLC Attorneys for Plaintiff Dated: July 15, 2011 -10- Case 2:33-av-00001 Document 12765 Filed 09/12/11 Page 19 of 19 PageID: 218423 Case 2:11-cv-05224-WJM -MF Document 1 Filed 09/12/11 Page 19 of 19 PageID: 19