Case 3:11-cv-01944 Document 1

Filed 09/26/11 Page 1 of 3

UNITED STATES DISTRCT COURT FOR THE DISTRICT OF PUERTO RICO

Nelson Mena Santana Civil No. Plaintiffs v. COPYRIGHT INFRINGEMENT Empresas Osvaldo Rocafort in representation of D/B/A Foglia Music Joel Pierluisi, Sebastn Foglia HDM Music, Inc. John Doe and Richard Roe Defendants

REMOVAL UNDER 28 USC 1441 TO THE HONORABLE COURT: COME NOW defendants, through counsel, and respectfully, state, allege and pray: On September 14, 2011, plaintiff led Civil Case No. KPE11-3357, before the Puerto Rico Court of First Instance, San Juan, Part. Actions brought in State court are removable regardless of citizenship or residence of the parties in matters of which the District Court has original jurisdiction: (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under ctitious names shall be disregarded. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

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28 USCA 1441. The removed action seeks a nding of co-authorship. The rst item in the prayer for relief makes this plain. The relief it seeks is "to institute the plaintiff as the co-author of the song." Exhibit A. Coauthorship is a matter under the exclusive purview of the Copyright Act. See 17 USC 101 (denition of joint works). Such a remedy may not be sought under State law, for as the Copyright Act proclaims: (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specied by section 106 in works of authorship that are xed in a tangible medium of expression and come within the subject matter of copyright as specied by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 17 USCA 301. This action, therefore, belongs in the U.S. District Court and not in the courts of the Commonwealth. Removal is timely. The complaint was led on September 14, 2011 and process served as early as the 15th. The 30 days provided by 28 SUC 1446 are comfortably met. Venue lies with this court as it is the only district court with jurisdiction over the territorial boundaries of Puerto Rico, where the State action is pending, and where all parties reside. Notice to adverse party and ling in State Court. Defendants are required to give written notice thereof to all adverse parties and shall le a copy of the notice with the

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clerk of [the] State Court... where the complaint was led. 28 U.S.C. 1446(d). Codefendants certify that on this same date, they have sent a copy of this notice of removal by fax and regular mail to the plaintiff and that it led a copy thereof with the clerk of the Puerto Rico Court of First Instance, San Juan Part. WHEREFORE, defendants give notice of removal of the complaint led in Civil Case No. KPE11-3357, before the Puerto Rico Court of First Instance, San Juan, Part. In San Juan, Puerto Rico, this 26th of September 2011.

s/ Patricia Rivera MacMurray! ! PATRICIA RIVERA MACMURRAY! USDC!No. 222309! ! ! ! 206 Tetun, Suite 702! ! ! San Juan, Puerto Rico 00901! ! Tel: 787-722-7782! ! ! ! Fax: 787-722-7786!! ! ! prm3@mac.com! ! ! !

! ! ! ! ! ! ! !

s/ Jos A. Hernndez Mayoral JOSE HERNANDEZ MAYORAL USDC No. 205307 206 Tetun, Suite 702 San Juan, Puerto Rico 00901 Tel: 787-722-7782 Fax: 787-722-7786 jahm@mac.com

WE HEREBY CERTIFY that on this same date, we electronically led the foregoing with the Clerk of the Court using the CM/ECF system and sent a copy by fax, electronica mail and regular mail to attorney for plaintiff Elaine Rodriguez-Frank, PO Box 194799, San Juan, Puerto Rico 00919-4799. fax 787-250-0392, elaine@prtc.net,a nd led a copy witht he Puerto Rico Court of First Instance.

s/ Jos A. Hernndez Mayoral