Case 1:19-cv-02043-JKB Document 1 Filed 07/11/19 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`(Baltimore Division)
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`Plaintiffs,
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`PATRICK KELLY, Indiv., et al.,
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`v.
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`RX REMEDIES, et al.
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`Defendants.
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`NOTICE OF REMOVAL
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`Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, Defendants, Rx Remedies, Inc., John
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`Powers, Meredith Priddy, James Tracy Taylor, Daniel Powers, and Brent Berisford, by Adam M.
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`Spence, Esq., Garrett E. Brierley, Esq., and SPENCE | BRIERLEY, their attorneys, file this
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`Notice of Removal to this Court of a civil action from the Circuit Court for Baltimore City,
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`Maryland, captioned Patrick Kelley, et al v. RX Remedies, et al, Case No.: 24-C-19-003016. As
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`grounds therefor, Defendants state as follows:
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`1.
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`On or about May 28, 2019, an action was commenced in the Circuit Court for
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`Baltimore City, Maryland, captioned Patrick Kelly, et al v. RX Remedies, et al, Case No.: 24-C-
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`19-003016 (the “Circuit Court Lawsuit”).
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`2.
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`This action is removable because this Court has original jurisdiction over this
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`matter on the grounds that copyright infringement and/or defenses thereto invoke federal
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`question jurisdiction and supplemental jurisdiction pursuant to 28 U.S.C. § 1338 & 1367.
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`Case 1:19-cv-02043-JKB Document 1 Filed 07/11/19 Page 2 of 8
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`3.
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`Specifically, Plaintiffs’ allege in their Complaint that Defendants “unilaterally and
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`intentionally transferred all, substantially all or most of the valuable business and property of
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`[Emerald Green Ventures]/BioRemedies to [Defendant RX Remedies]…,” contrary to “[Emerald
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`Green Ventures]/BioRemedies’ ownership rights over said business and property. See State
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`Court Lawsuit Complaint, attached as Exhibit A, at ¶¶ 22-23 (Emphasis added).
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`4.
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`Plaintiffs’ Complaint further alleges that
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`Defendants are [] personally and directly conflicted and committed to their unauthorized and
`the unauthorized and
`illegal misappropriation of
`illegal formation of RxR and
`EGV/bioRemedies' funds and tangible and intangible property in connection with the
`formation of that entity protection for EGV /bioRemedies inventory and the bioRemedies
`name.
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`Complaint at ¶ 17 (Emphasis added).
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`5.
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`Based on these facts, Plaintiffs assert several causes of action against Defendants
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`arising from their transfers of such tangible and intangible property: conversion; unjust
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`enrichment; constructive fraud based on breach of fiduciary duty, violation of the Maryland trade
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`secret act, fraud, concealment and civil conspiracy. See Complaint.
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`6.
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`These claims arise, in part, over disputed copyright ownership rights vis-à-vis the
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`parties.
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`7.
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`Again, the Complaint alleges that Defendants unlawfully transferred “all,
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`substantially all or most of the valuable business and property, including without limitation
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`EGV/bioRemedies’ … tangible and intangible business property,” which implicates copyright
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`issues. Complaint at ¶ 22.
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`8.
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`The Complaint then alleges that Defendants formed “a competitive business
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`using, among other things, EGV/bioRemedies’ trade secrets, tangible and intangible property …”
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`Complaint at 53, 56 & 57.
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`Case 1:19-cv-02043-JKB Document 1 Filed 07/11/19 Page 3 of 8
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`9.
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`As set forth more fully below, such intangible property includes copyrighted
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`marketing materials and website text that Defendants used after leaving BioRemedies (based on
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`their ownership of same). Defendants intend to assert as a defense copyright ownership granted
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`to them as part of their employment.
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`10.
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`Plaintiffs may counter that the allegations do not specifically state copyright
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`claims. Ordinarily, under the “well-pleaded complaint rule,” federal question jurisdiction must
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`be apparent from the face of the pleading, without any reference to possible defenses to the case.
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`Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004). Further, “[g]enerally, federal
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`preemption is a defense to plaintiff’s action, and as such, ‘it does not appear on the face of a well
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`pleaded complaint.’”
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`11.
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`“There is an exception, however, to the well-pleaded complaint rule. ‘[W]hen a
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`federal statute wholly displaces the state-law cause of action through complete pre-emption,’ the
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`state claim can be removed based on defenses. Id at 207.
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`12.
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`Copyright is one such exception, permitting the Court to remove a case because
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`federal law so completely preempts state law that it effectively converts Plaintiff’s claims to
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`federal claims. Rosciszewski v. Arete Associates, Inc., 1 F.3d 225, 231 (4th Cir. 1993).
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`13.
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`Even if the complaint does not provide details of the plaintiffs' claims sufficient
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`for removal, the defendant may remove within 30 days of receiving “an amended pleading,
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`motion, order or other paper from which it may first be ascertained that the case is one which is
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`or has become removable.” 28 U.S.C. § 1446(b)(3). The “other paper” requirement “is broad
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`enough to include any information received by the defendant, whether communicated in a formal
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`or informal manner.” Sawyer v. Union Carbide Corp., CV CCB-16-118, 2016 WL 1585888, at
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`*2 (D. Md. Apr. 20, 2016)(Blake)(unpublished), rev'd sub nom. (on other grounds) Sawyer v.
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`Case 1:19-cv-02043-JKB Document 1 Filed 07/11/19 Page 4 of 8
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`Foster Wheeler LLC, 860 F.3d 249, 2017 (4th Cir. 2017)(Defendant asserted statutory Federal
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`Officer removal). See also Yarnevic v. Brink's, Inc., 102 F.3d 753, 755 (4th Cir. 1996).
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`14.
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`In this regard, Defendant Taylor received a letter on June 18, 2019 that Plaintiff
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`Kelly had directed to BioRemedies investors. In that letter, Mr. Kelly raised his considerable
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`concerns regarding Defendants’ purported theft of trademarked and copyrighted materials
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`leading to the instant lawsuit, stating:
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` A
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` copy of this letter is attached as Exhibit B (Emphasis added).
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`15.
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`Coupling Plaintiff Kelly’s clear statements in this letter of copyright infringement
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`with the allegations of the Complaint as to Defendants’ theft and use of “all, substantially all or
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`most of the valuable business and property, including without limitation EGV/bioRemedies’ …
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`tangible and intangible business property,” it is clear that the instant lawsuit involves copyright
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`infringement of bioRemedies’ public facing website, a federal question. Complaint at ¶¶ 22.
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`16. When viewing the Complaint in light of Plaintiff Kelly’s letter, this case is
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`properly removable under federal question jurisdiction pursuant to 28 U.S. Code § 1338.
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`17.
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`In compliance with 28 U.S.C. § 1446(b)(2)(B), this Notice of Removal is timely,
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`having been timely filed within 30 days of Defendants’ first notice of the State Court Lawsuit.
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`Case 1:19-cv-02043-JKB Document 1 Filed 07/11/19 Page 5 of 8
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`Defendants first became aware of the Circuit Court Lawsuit on June 10, 2019, when several
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`Defendants were personally served with the Complaint.
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`18.
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`In compliance with 28 U.S.C. § 1441(a), this action is properly removed to the
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`United States District Court for the District of Maryland (Baltimore Division), which is the
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`“district and division embracing the place where [the] action is pending.”
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`19.
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`In compliance with 28 U.S.C. § 1446(a) and LR 103.5(a), a copy of all process,
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`pleadings, and orders served upon the removing Defendants in the State Court Lawsuit are
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`attached and filed herewith as follows:
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`Exhibit A – State Court Complaint
`Exhibit C – State Court Civil Case Information Report
`Exhibit D - State Court Summons for Defendants, collectively
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`See also Local Rule 103.5(a) Certification filed herewith.
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`20.
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`21.
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`No Motions are pending in the State Court Lawsuit.
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`In compliance with 28 U.S.C. § 1446(d), a Notice of Filing of Notice of Removal
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`removing the State Court Lawsuit to this Court will be (a) filed with the Clerk of the Court in the
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`State Court Lawsuit and (b) served on counsel for the Plaintiffs together with this Notice of
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`Removal.
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`22.
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`By filing this Notice of Removal, Defendants do not waive their right to seek to
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`compel arbitration, or to object to jurisdiction over the person, or venue, and specifically reserve
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`the right to assert any defenses and/or objections to which they may be qualified to assert.
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`Case 1:19-cv-02043-JKB Document 1 Filed 07/11/19 Page 6 of 8
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`WHEREFORE, Defendants, Rx Remedies, Inc., John Powers, Meredith Priddy, James
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`Tracy Taylor, Daniel Powers, and Brent Berisford, respectfully request that the above-referenced
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`action now pending in the Circuit Court for Baltimore City and captioned Patrick Kelly, et al v.
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`RX Remedies, et al, Case No.: 24-C-19-003016 (the “Circuit Court Lawsuit”), be removed
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`therefrom in its entirety to this Court, as provided by law, and, pursuant to 28 U.S.C. § 1446(d)
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`and that the Circuit Court proceed no further.
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`Respectfully submitted,
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`/s/ Adam M. Spence
`_________________________________________
`Adam M. Spence, Esq. (Fed Bar No. 14356)
`Garrett E. Brierley, Esq. (Fed Bar No. 29596)
`SPENCE | BRIERLEY
`409 Washington Avenue, Suite 1000
`Towson MD 21204
` (410) 823-5003
`Telecopier: (443) 836-9181
`Counsel for Plaintiff
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`Case 1:19-cv-02043-JKB Document1 Filed 07/11/19 Page 7 of 8
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`VERIFICATION
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`I, being an adult, having read the contents of the foregoing and having personal
`knowledge thereof, hereby swear and affirm under the penalties of perjury that the contents of
`the foregoing are true.
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`brent Berisford
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on this 11th day of July, 2019 I caused to be served a copy of
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`the foregoing on the following persons or entities via regular U.S. Mail, postage prepaid:
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`Herbert Burgunder, III
`PESSIN KATZ LAW, P.A.
`901 Dulaney Valley Road, Suite 500
`Towson, MD 21204
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`/s/ Adam M. Spence
`_________________________________________
`Adam M. Spence, Esq.
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