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PAT LUNDVALL (NSBN 3761) KRISTEN T. GALLAGHER (NSBN 9561) McDONALD CARANO WILSON LLP 2300 West Sahara Avenue, Suite 1000 Las Vegas, Nevada 89102 Telephone: (702) 873-4100 Facsimile: (702) 873-9966 lundvall@mcdonaldcarano.com kgallagher@mcdonaldcarano.com
Attorneys for Defendants

UNITED STATES DISTRICT COURT 8

McDONALD CARANO WILSON LLP

DISTRICT OF NEVADA 9 10 11 12 13 14 15 16 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 TO: THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA: Pursuant to 28 U.S.C. 1441(a) and 1446, defendants Legacy IP LLC (Legacy), Ennova Direct, Inc., erroneously named as Ennova Direct, LLC (Ennova); Peter Garrett (Garrett) and Paul Regen, erroneously named as Paul Regan (Regen) (collectively, Defendants) hereby remove this action to the United States District Court for the District of Nevada. The grounds for removal are as follows: 1. Plaintiffs Dr. Brian A. Lemper and American Regenerative Technologies, LLC v. LEGACY IP, LLC., a California limited liability company; ENNOVA DIRECT, LLC, a California limited liability company; PETER GARRETT an individual; PAUL REGAN, an individual; DOES I through X, inclusive; and ROES I through X, inclusive; DR. BRIAN A. LEMPER, an individual; and AMERICAN REGENERATIVE TECHNOLOGIES, LLC; a Nevada limited liability company; Plaintiff, Case No:

2300 WEST SAHARA AVENUE, SUITE 1000 LAS VEGAS, NEVADA 89102 PHONE (702) 873-4100 FAX (702) 873-9966

NOTICE OF REMOVAL

(together Plaintiffs) filed this action on April 26, 2012, in the Eighth Judicial District Court for Clark County, Nevada, Case No. A-12-660850-C. 2. Plaintiffs have asserted eleven claims for fraudulent inducement, breach of

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contract, breach of contractual covenant of good faith, negligent misrepresentation, tortious interference with contractual relationship, intentional interference with prospective economic advantage, breach of fiduciary duty/constructive fraud, conversion, rescission, alter ego, and for preliminary and permanent injunctive relief that are premised on certain patent rights. See e.g. Complaint, 11, 12, 19, 20, 26, 44, 52, 116-118, attached hereto as Exhibit A. 3. Under the artful pleading doctrine, a court may recharacterize plaintiffs claims

as federal, for purposes of removal, if particular conduct complained of is governed exclusively by federal law. Redwood Theatres, Inc. v. Festival Enterprises, Inc., 908 F.2d 477 (9th Cir. 1990). Because Plaintiffs claims necessarily rely upon determinations under federal patent law, this Court has exclusive jurisdiction pursuant to 28 U.S.C. 1338. 4. This Court also has jurisdiction based on diversity of citizenship pursuant to 28

McDONALD CARANO WILSON LLP

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U.S.C. 1332. Complete diversity exists as follows: a. b. Plaintiff Dr. Brian A. Lemper is domiciled in Nevada. See Complaint, 1. Plaintiff American Regenerative Technologies, LLC (ART), is a Nevada

limited liability company. Id., 2. Under federal law, the citizenship of ART is determined by the citizenship of its members. See Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 902 (9th Cir. 2006) (LLCs have the citizenship of all of their owners/members). Upon information and belief, Lemper is currently the only member of ART. Lemper is domiciled in Nevada. Id., 1. Therefore, ART is a citizen of the state of Nevada and no other state. c. Legacy IP LLC (Legacy) was at the time of the commencement of this

action, and is now, a California limited liability company. Complaint, 5. Under federal law, the citizenship of Legacy is determined by the citizenship of its members. Johnson, 437 F.3d at 902. Defendants Peter Garrett and Paul Regen are members of Legacy. Both are domiciled in California. Complaint, 3, 4. Additionally, Thomas Adams and Martin Fox are members of Legacy. See Exhibit B, Declaration of Thomas Adams, 1, 3; Exhibit C, Declaration of Martin Fox, 1. Both Mr. Adams and Mr. Fox are domiciled in California. Ex. B, 2, 3; Ex. C, 2. Therefore, pursuant to federal law and under 28 U.S.C. 1332(c), Legacy is a citizen of the state of California and no other state. Page 2 of 5

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d.

Defendant Ennova Direct, Inc. (erroneously named as Ennova Direct,

LLC) is a California corporation, and has its principal place of business in California. See California Secretary of State corporate detail attached hereto as Exhibit D. Thus, it is a citizen of the state of California and no other state. e. Defendant Peter Garrett (Garrett) was at the time of the commencement

of this action, and is now, is a citizen and domiciled in the state of California and no other state. Complaint, 3. f. Defendant Paul Regen, erroneously named as Paul Regan (Regen), was

at the time of the commencement of this action, and is now, is a citizen and domiciled in the state of California and no other state. Complaint, 4. g. DOES I through X, and ROES I through X are named and sued fictitiously

McDONALD CARANO WILSON LLP

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and their citizenship is disregarded as a matter of law for purposes of removal on grounds of diversity jurisdiction. Thus, complete diversity exists between Plaintiffs and Defendants. 5. The amount in controversy in the pending action, exclusive of interest and costs,

exceeds the sum of $75,000. Plaintiffs seek, inter alia, rescission of a contract (ninth claim) concerning certain patents and the related agreement to provide Defendants a 15% interest in the patents filed and a 15% interested in ART. Complaint at 24, 126-127. While rescission is an equitable remedy, it is well established that the amount in controversy is measured by the value of the object of the litigation. Hunt v. Wash. State Apple Advertising Commn, 432 U.S. 333, 347 (1977). Here, that amount is the full contract value that provides Defendants a 15% interest in the patents filed and a 15% interest in ART. The value of the contract that Plaintiffs seek to rescind far exceeds $75,000.00. See Ex. B, 5. See Rosen v. Chrysler Corp., 205 F.3d 918, 921-22 (6th Cir. 2000) (where a plaintiff seeks to rescind a contract, the contracts entire value, without offset, is the amount in controversy.). Additionally, Plaintiffs have asserted tortbased claims, punitive damages, injunctive relief and attorneys fees as damages. See e.g. Complaint, 56, 69. Thus, the amount in controversy exceeds $75,000.00. 6. Accordingly, this Court also has jurisdiction over these claims pursuant to 28 Page 3 of 5

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U.S.C. 1332 because the parties are citizens of different states and the amount in controversy exceeds $75,000.00. This Courts jurisdiction is also proper pursuant to 28 U.S.C. 1441(a). 7. This removal notice is timely. Defendants first obtained a copy of the Complaint

on May 10, 2012 when Defendants Legacy, Ennova and Regen were served with copies of the Summons and Complaint. To date, defendant Garrett has not been properly served with a copy of the Summons and the Complaint. 8. 9. Thirty days have not yet expired since this action became removable to this Court. In accordance with 28 U.S.C. 1441(a), venue lies in the unofficial Southern

Division of the United States District Court for the District of Nevada, in that the pending actions was filed and is pending in the District Court for Clark County, Nevada, which is within this judicial district. 10. Pursuant to 28 U.S.C. 1446 (a), copies of the pleadings filed in the state court

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2300 WEST SAHARA AVENUE, SUITE 1000 LAS VEGAS, NEVADA PHONE (702)873-4100 FAX (702) 873-9966

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action as of this date are attached hereto as follows: Complaint (Exhibit A). 11. Promptly after filing this Notice, Defendants will file a copy of it with the clerk of

the state court in which this action is pending and will give written notice to the Plaintiffs, as required by 28 U.S.C. 1446(d). 12. This Notice of Removal is executed and filed pursuant to Fed. R. Civ. P. 11.

WHEREFORE, Defendants remove the above-entitled action now pending in the Eighth Judicial District Court in and for the County of Clark, Nevada, Case No. A-12-660850-C, to the United States District Court for the District of Nevada. RESPECTFULLY SUBMITTED this 5th day of June, 2012. McDONALD CARANO WILSON LLP By: /s/ Kristen T. Gallagher Pat Lundvall (NSBN 3761) Kristen T. Gallagher (NSBN 9561) 2300 West Sahara Avenue, Suite 1000 Las Vegas, Nevada 89102 Telephone: 702.873.4100 Facsimile: 702.873.9966 lundvall@mcdonaldcarano.com kgallagher@mcdonaldcarano.com
Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that I am an employee of McDonald Carano Wilson LLP, and that I served a true and correct copy of the foregoing NOTICE OF REMOVAL on this 5th day of June, 2012 by depositing said copies in the United States Mail, postage prepaid thereon, upon the following: Patricia Lee Jacob A. Reynolds HUTCHISON & STEFFEN, LLC Peccole Professional Park 10080 West Alta Drive, Suite 200 Las Vegas, NV 89145 Tel: (702) 385-2500 Fax: (702) 385-2086 plee@hutchlegal.com jreynolds@hutchlegal.com
Attorneys for plaintiffs Dr. Brian A. Lemper and American Regenerative Technologies, LLC

McDONALD CARANO WILSON LLP

2300 WEST SAHARA AVENUE, SUITE 1000 LAS VEGAS, NEVADA PHONE (702)873-4100 FAX (702) 873-9966

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/s/ Yalonda Dekle An employee of McDonald Carano Wilson LLP

252991

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