IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE ...

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

MMM, LLC,

Plaintiff,

v.

ETERNITY MANAGEMENT, INC., ETERNITY MANAGEMENT, LLC, OKLAHOMA MEN'S CLINIC ? OKLAHOMA CITY, LLC, OKLAHOMA MEN'S CLINIC ? TULSA, LLC, KANSAS MEN'S CLINIC ? WICHITA, LLC, and GREGORY G. BERENATO,

Defendants.

) ) ) ) ) Case No. ____________ ) ) ) ) ) ) ) ) ) ) ) )

DEFENDANTS' NOTICE OF REMOVAL

PLEASE TAKE NOTICE that pursuant to 28 U.S.C. ?? 1332 and 1446, Defendants

Eternity Management, Inc, Eternity Management, LLC, Oklahoma Men's Clinic ? Oklahoma

City, LLC, Oklahoma Men's Clinic ? Tulsa, LLC, Kansas Men's Clinic ? Wichita, LLC and

Gregory G. Berenato hereby give Notice of Removal of the above-captioned action, Case No.

15-995-BC pending in the Chancery Court for Davidson County, Tennessee, to the United States

District Court for the Middle District of Tennessee, Nashville Division. In support of removal,

Defendants state as follows:

1. This Notice of Removal is timely filed pursuant to 28 U.S.C. ? 1446(b) in that it

is being filed within thirty (30) days of September 13, 2015, the date Gregory G. Berenato,

individually as a Defendant and as the registered agent for certain of the entity Defendants,

Case 3:15-cv-01086 Document 1 Filed 10/12/15 Page 1 of 11 PageID #: 1

received a copy of the initial pleading setting forth the claim for relief upon which the action is based.

2. Pursuant to 28 U.S.C. ? 1441(a), the removal of this action to this Court is proper as this Court sits in the judicial district and division embracing the place where the action is pending. See 28 U.S.C. ? 123(b)(1) (stating that the Middle District of Tennessee, Nashville Division, embraces Davidson County, Tennessee).

3. Pursuant to 28 U.S.C. ? 1446(a), copies of all process and pleadings that have been served upon the Defendants are attached hereto as Exhibit 1.

4. Pursuant to 28 U.S.C. ? 1446(d), a copy of this Notice of Removal is being filed with the Chancery Court for Davidson County, Tennessee.

5. By filing this Notice of Removal, the Defendants do not waive any available defenses including, without limitation, the defense of lack of personal jurisdiction.

6. As evidenced by the signatures of their counsel below, all Defendants consent to the removal of this action to the United States District Court for the Middle District of Tennessee, Nashville Division.

JURISDICTION This Court has original jurisdiction over this action pursuant to 28 U.S.C. ? 1332. A. Diversity of Citizenship 1. Plaintiff MMM, LLC Diversity of citizenship is determined based on the facts as they existed at the time of the commencement of the action. Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004). A limited liability company has the citizenship of each of its members. Delay v. Rosenthal Collins Group, LLC, 585 F.3d 1003, 1005 (6th Cir. 2009). In the Verified Complaint,

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Plaintiff MMM, LLC does not state the citizenship of each of its members. Upon information and belief, Plaintiff MMM, LLC has two members, Evan Bass and Dr. Larry Mitchell. (Affidavit of Gregory G. Berenato, ? 5) Further upon information and belief, both Evan Bass and Dr. Larry Mitchell are citizens and residents of the State of Tennessee. (Id., ?? 6-7) Accordingly, Plaintiff MMM, LLC is a citizen of the State of Tennessee.

2. Defendant Gregory Berenato The Complaint alleges that Defendant Berenato is an individual who resides in the State of Tennessee. This is not correct. On August 19, 2015, the date this action was commenced, Defendant Berenato was a citizen and resident of Tulsa County, Oklahoma. (Berenato Aff., ? 2) Defendant Berenato remains a citizen and resident of Tulsa County, Oklahoma, and intends to make his home there indefinitely. (Id.) Defendant Berenato was personally served with process in this action in Tulsa County, Oklahoma. (Id. at ? 3) Defendant Berenato is a citizen of, and domiciled in, Tulsa County, Oklahoma. 3. Defendant Eternity Management, LLC Defendant Berenato is the sole member of Defendant Eternity Management, LLC. (Berenato Aff., ? 4). For purposes of diversity of citizenship, Defendant Eternity Management, LLC is a citizen of Oklahoma. See Delay, 585 F.3d at 1005. 4. Defendant Oklahoma Men's Clinic ? Oklahoma City, LLC Defendant Berenato is the sole member of Defendant Oklahoma Men's Clinic ? Oklahoma City, LLC. (Berenato Aff., ? 4). For purposes of diversity of citizenship, Defendant Oklahoma Men's Clinic ? Oklahoma City, LLC is a citizen of Oklahoma. See Delay, 585 F.3d at 1005.

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5. Defendant Oklahoma Men's Clinic ? Tulsa, LLC Defendant Berenato is the sole member of Defendant Oklahoma Men's Clinic ? Tulsa, LLC. (Berenato Aff., ? 4). For purposes of diversity of citizenship, Defendant Oklahoma Men's Clinic ? Tulsa, LLC is a citizen of Oklahoma. See Delay, 585 F.3d at 1005. 6. Defendant Kansas Men's Clinic ? Wichita, LLC Defendant Berenato is the sole member of Defendant Kansas Men's Clinic ? Wichita, LLC. (Berenato Aff., ? 4). For purposes of diversity of citizenship, Defendant Kansas Men's Clinic ? Wichita, LLC is a citizen of Oklahoma. See Delay, 585 F.3d at 1005. 7. Defendant Eternity Management, Inc. Defendant Eternity Management, Inc. is a corporation organized under the laws of the State of Tennessee and having a principal place of business in Tulsa, Oklahoma. (Complaint, ? 6; Berenato Aff., ? 8) Defendant Eternity Management, Inc. is therefore a citizen of both Tennessee and Oklahoma. If Defendant Eternity Management, Inc. had been properly joined as a party to this action, complete diversity would not exist, because Plaintiff also is a citizen of Tennessee. But the citizenship of Defendant Eternity Management, Inc. should not be considered in determining whether there exists diversity of citizenship, because Defendant Eternity Management, Inc. was fraudulently joined as a party to this action. Where a non-diverse party has been joined as a defendant, the removing defendants may avoid remand only by demonstrating either: (1) the existence of a substantial federal question or (2) that the non-diverse party was fraudulently joined. Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999). To show that a party was fraudulently joined, the removing defendants must show that there is no colorable cause of action against that party. Chambers v. HSBC Bank USA, N.A., 796 F.3d 560, 564 (6th Cir. 2015). In other words, the

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removing parties must present sufficient evidence to show that a plaintiff could not have established a cause of action against the non-diverse defendants under state law. Id. at 564-565. The question for the Court is whether there is "arguably a reasonable basis for predicting that the state law might impose liability on the facts involved." Id. at 565-566, quoting Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994).

The Complaint alleges only one claim for relief against Eternity Management, Inc. ? confirmation of an arbitration award. (See Complaint, pg. 11) There is no reasonable basis for predicting that Tennessee state law would permit the confirmation of an arbitration award against Eternity Management, Inc., because no such award exists. The purported arbitration award attached as Exhibit 2 to the Complaint awards no relief against Eternity Management, Inc. The caption of the award is styled MMM, LLC v. Eternity Management, LLC d/b/a Arkansas Men's Clinic. (See Complaint, Exh. 2). At pages 4 and 5, the purported arbitration award describes the respondent as "Eternity Management, LLC." At page 7, the arbitrator purports to award damages only against "Respondent ETERNITY MANAGEMENT, LLC." No relief whatsoever is awarded against Eternity Management, Inc. There is no arbitration award against Eternity Management, Inc. that can be confirmed.

Moreover, Plaintiff MMM, LLC is not entitled to confirmation of the arbitration award against Eternity Management, LLC, or any other entity. The arbitration award is void because the party against which relief is purportedly awarded - Eternity Management, LLC - never agreed to resolve any dispute with MMM, LLC through arbitration. The parties that signed the contract attached as Exhibit 1 to the Complaint are Eternity Management, Inc. and MMM, LLC. Those are the only parties in this case that agreed to resolve any of their disputes by arbitration. Eternity Management, LLC, the only party against which relief is awarded in the purported

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