spirit cruises, llc, 2:18cv359 and pritzker/vrs investors … · 2018. 7. 11. · counsel for...

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

JEFFREY MAKUCH,

PLAINTIFF,

v.

SPIRIT CRUISES, LLC,

AND

PRITZKER/VRS INVESTORS LLC.,

DEFENDANTS.

) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. _______________

NOTICE OF REMOVAL

Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, Defendant Spirit Cruises, LLC (“Spirit”),

by and through counsel, hereby removes this action from the Circuit Court for the City of

Portsmouth, Virginia (Case No.: 18-2048) to the United States District Court for the Eastern

District of Virginia, Norfolk Division. Removal is proper because the citizenship of the parties

is totally diverse and the amount in controversy is greater than $75,000.00. Accordingly, Spirit

removes this action and, in support of removal, states the following:

Statement of the Case

1. This action is a civil action, and was commenced on May 31, 2018, with the filing

of a Complaint in the Circuit Court for the City of Portsmouth, captioned Jeffrey Makuch v.

Spirit Cruises, LLC and Pritzker/VRS Investors LLC, Civil Action No. 18-2048 (the

“Complaint”).

2:18cv359

Case 2:18-cv-00359-HCM-RJK Document 1 Filed 07/03/18 of 5 PageID# 1

2

2. The Complaint alleges that Spirit “and/or” Pritzker/VRS Investors LLC is the

owner and operator of the Spirit of Norfolk.

3. Spirit is the sole owner and/or operator of the Spirit of Norfolk.

4. The Complaint alleges a negligence claim against Spirit.

5. Plaintiff prays for $373,456.78 for the alleged injuries.

Removal Jurisdiction

1. The United States District Court for the Eastern District of Virginia, Norfolk

Division, is the district court of the United States for the district and division embracing the place

where this action is now pending.

2. The grounds for removal to the United States District Court for the Eastern

District of Virginia, Norfolk Division, are that this Court, pursuant to 28 U.S.C. § 1332(a)(1), has

original jurisdiction respecting the subject civil actions because the matter in controversy

exceeds the sum or value of $75,000, exclusive of interests and costs, and is between citizens of

different states; to-wit:

a. In its Complaint, Plaintiff asserts a negligence claim against Spirit in

which Plaintiff seeks recovery of the principal sum of $373,456.78.

b. Spirit is a Delaware limited liability company with its principal office

located in Chicago, Illinois.

c. Upon information and belief, Pritzker/VRS Investors LLC is a Delaware

limited liability company with its principal office located in Chicago, Illinois. Pritzker/VRS

Investors LLC does not, however, have an ownership interest in the Spirit of Norfolk.

d. Neither Defendant was a citizen of the Commonwealth of Virginia at the

time of the commencement of this action; nor are they now.


3

e. Upon information and belief, Plaintiff is domiciled and is a resident of the

state of New York at the time the state court litigation was filed and at this present time.

f. There is complete diversity among the parties.

3. Attached hereto as Exhibit A is a true and legible copy of the Complaint

referenced herein.

4. Spirit was served with the Complaint, which is the initial pleading setting forth

the claims for relief upon which this action is based, in the state court proceeding on June 13,

2018. Accordingly, this Notice of Removal of a Civil Action is filed within the 30-day time

period allowed by 28 U.S.C. § 1446(b).

5. Promptly upon filing this Notice of Removal, Defendants will provide a written

notice to Plaintiff and file a copy of the Notice of Removal with the Clerk of the Circuit Court

for the City of Portsmouth in accordance with 28 U.S.C. § 1446(d).

6. Spirit reserves all objections and defenses, and do not waive any objection or

defense, whether procedural or substantive, including, but not limited to, lack of personal

jurisdiction, improper venue, or rights respecting compelling arbitration of the underlying

subcontract dispute and stay of this action pending the same.

WHEREFORE, Defendant prays that the United States District Court for the Eastern

District of Virginia, Norfolk Division, assume the jurisdiction of this action and all claims

asserted, that this action proceed in said Court as an action properly removed thereto and

properly pending therein, and that Defendant have and receive such other and further relief to

which they may be entitled under the allegations herein or as is just and proper.

SPIRIT CRUISES, LLC

By: ____/s/ Jennifer L. Eaton_____________

Of Counsel


4

Edward J. Powers, Esq. (VSB No. 32146) Jennifer L. Eaton, Esq. (VSB No. 87491) Vandeventer Black LLP 101 West Main Street, Suite 500 Norfolk, VA 23510 Telephone: (757) 446-8600 Facsimile: (757) 446-8670 [email protected]@vanblacklaw.comCounsel for Spirit Cruises, LLC


5

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing pleading was electronically filed with the Court’s ECF system. The undersigned further certifies that a copy of the foregoing NOTICE OF REMOVAL OF A CIVIL ACTION has also been served via first class mail, postage-paid and addressed to:

Edwin S. Booth, Esquire RULOFF, SWAIN, HADDAD, MORECOCK TALBERT & WOODWARD, P.C. 317 30th Street Virginia Beach, Virginia 23451 757.671.6057 – Direct Dial 757.671.6004 – Facsimile [email protected] for Plaintiff

____/s/ Jennifer L. Eaton_____________



Exhibit A

Case 2:18-cv-00359-HCM-RJK Document 1-1 Filed 07/03/18 Page 1 of 8 PageID# 6

Exhibit A


UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

JEFFREY MAKUCH,

Plaintiff,

v. Civil Action No.: ____________

SPIRIT CRUISES, LLC, et al.,

Defendants.

SPIRIT CRUISES, LLC’S ANSWER AND AFFIRMATIVE DEFENSES

Defendant Spirit Cruises, LLC’s (“Spirit”), by counsel, answers the Complaint in

corresponding numbered paragraphs as follows:

1. Spirit denies the allegations contained in Paragraph 1 of the Complaint.

2. Upon information and belief, Spirit admits the allegations contained in Paragraph 2 of

the Complaint.

3. Spirit admits that Spirit owns the Spirit of Norfolk as the sole owner. Spirit denies all

remaining allegations contained in Paragraph 3 of the Complaint.

4. Spirit admits the allegations contained in Paragraph 4 of the Complaint.


6. The allegations contained in Paragraph 6 contain legal conclusions to which no

response is required. To the extent a response is required, Spirit states that the allegation is an

incomplete statement of law and therefore denies Paragraph 6.

7. Spirit is without sufficient knowledge or information to admit or deny the allegations

contained in Paragraph 7 of the Complaint and, therefore, denies all such allegations.

2:18cv359


2





10. Spirit admits that the top deck features an antiskid deck. Spirit denies any remaining

allegations contained in Paragraph 10 of the Complaint.


contained in Paragraph 11 of the Complaint as the allegations are vague and ambiguous and,

therefore, denies all such allegations.







16. The allegations contained in Paragraph 16 and its subparts contain legal conclusions

to which no response is required. To the extent a response is required, Spirit denies the

allegations contained in Paragraph 16 of the Complaint and its subparts.



Spirit denies all other allegations, including the prayer for relief, not expressly admitted

above.


3

AFFIRMATIVE DEFENSES

1. Spirit denies all allegations of the Complaint not expressly admitted by it, and

demands strict proof of all denied allegations.

2. Plaintiff has failed to state a claim upon which relief can be granted.

3. Plaintiff’s damages, if any, are the result of the negligence, intentional acts, and/or

fault of third parties, other than Spirit, which includes but is not limited to the comparative

negligence of the Plaintiff.

4. Spirit affirmatively states that Plaintiff has failed to mitigate his damages.

5. Spirit reserves the right to amend its affirmative defenses pending completion of

discovery.

WHEREFORE, having fully answered the Complaint, Spirit Cruises, LLC requests that

Plaintiff’s Complaint be dismissed and that Spirit Cruises, LLC be awarded its costs and

attorneys’ fees herein, and for any other relief the Court deems just and proper.

SPIRIT CRUISES, LLC

By: /s/ Jennifer L. Eaton Of Counsel



4

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing pleading was electronically filed with the Court’s ECF system. The undersigned further certifies that a copy of the foregoing Answer and Affirmative Defenses has also been served via first class mail, postage-paid and addressed to:

Edwin S. Booth, Esquire RULOFF, SWAIN, HADDAD, MORECOCK TALBERT & WOODWARD, P.C. 317 30th Street Virginia Beach, Virginia 23451 757.671.6057 – Direct Dial 757.671.6004 – Facsimile [email protected] for Plaintiff

: /s/ Jennifer L. Eaton



JS 44 (Rev. 06/17) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

1 U.S. Government 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust

& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation

Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations

153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 490 Cable/Sat TV

160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) 850 Securities/Commodities/190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) Exchange195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) 891 Agricultural Acts

362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters Medical Malpractice Leave Act 895 Freedom of Information

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party Act/Review or Appeal of240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision245 Tort Product Liability Accommodations 530 General 950 Constitutionality of290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes

Employment Other: 462 Naturalization Application446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions448 Education 555 Prison Condition

560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)1 Original

Proceeding2 Removed from

State Court 3 Remanded from

Appellate Court4 Reinstated or

Reopened 5 Transferred from

Another District(specify)

6 MultidistrictLitigation -Transfer

8 Multidistrict Litigation - Direct File

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: Yes No

VIII. RELATED CASE(S) IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

JEFFREY MAKUCH

New York

Edwin S. booth, Ruloff, Swain, Haddad, Morecock, Talbert & Woodward,P.C., 317 30th Strret, Virginia Beach, Virginia 23451

SPIRIT CRUISES, LLC AND PRITZKER/VRS INVESTORS LLC

Chicago, Illinois

Edward J. Powers and Jennifer L. Eaton, Vandeventer Black LLP101 W. Main St., Suite 500, Norfolk, Virginia 23510757.446.8600

28 U.S.C. §§ 1332, 1441, and 1446

Maritime Personal Injury

373,456.78

07/03/2018 /s/ Jennifer L. Eaton


spirit cruises, llc, 2:18cv359 and pritzker/vrs investors … · 2018. 7. 11. · counsel for...

Documents