Free Motion to Remand - District Court of Delaware - Delaware

Case 1 :08-cv-00141-SLR Document 8 Filed O4/07/2008 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
KAYNE SUNSTATE INVESTORS, LLC )
A Delaware Limited Liability Company, )
Plaintiff I
v. I C.A. No. 1:08-·CV-00141 (SLR)
ROY ELIASSON, BRYON WOLF, and I
ALFRED WOLF, )
Defendants. I
)
PLAINTIFF KAYNE SUNSTATE INVESTORS, LLC’S
MOTION TO REMAND
Plaintiff Kayne Sunstate Investors, LLC (“Kayne"), by and through its undersigned
counsel, respectfully moves this Honorable Court pursuant to by 28 U.S.C. § i447(c) for an
Order rernanding the abovecaptioned action in its entirety to the Superior Court of Delaware in
and for New Castle County and, in support thereof, states as follows:
l. On February 8, 2008, Kayne commenced this action by filing a Complaint against
defendants Roy Eliasson, Bryon Wolf, and Alfred Wolf (collectively, the "Defendants") in the
Superior Court of the State of Delaware in and for New Castle County.
2. Defendants were served with process on our about February ll, 2008.
Defendants have not contested service of process.
3. Kayne’s Complaint contains counts for fraudulent misrepresentation, negligent
misrepresentation, and breach of contract in connection with an Interest Contribution and
Freferred Unit Purchase Agreement (the "Purchase Agreenient”) the Defendants induced Kayne

Case 1 :08-cv-00141-SLR Document 8 Filed O4/07/2008 Page 2 of 3
to enter with them and pursuant to which Kayne invested $20 million in certain of the
Defendants’ telemarketing services companies.
él. The Purchase Agreement provides, among other things, that "[t]his Agreement
shall be governed by and construed in accordance with the Laws of the State of Delaware” and
contains the following forum selection clause (the "Forum Selection Clause"):
i Any suit, action or proceeding seeking to enforce any provision ot] or based on
any dispute or matter arising out of or in connection with, this Agreement, the
Related Documents or the transactions contemplated hereby or thereby, must be
brought in the courts of the State of Delaware, in New Castle County, or the
federal courts in the District of Delaware. Each ofthe parties (a) consents to the
exclusive jurisdiction of such courts. .. in any such suit, action or proceeding, (b)
irrevocably waives, to the fullest extent permitted by Law, any objection which it
. may now or hereafter have to the laying of venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding which is
brought in any such court has been brought in an inconvenient forum ....
5. On March 7, 2008, the Defendants tiled a Notice of Removal pursuant to 28
l}.S.C. § 1441 on the basis of diversity of citizenship as defined by 28 U.S.C. § 1332. (D1. 1).
6. Under the circumstances of this case, the Forum Selection Clause operates as a
waiver of th Defendants right to remove this action to federal court.
7. Thus, Defendants Notice of Removal clearly violates the Forum Selection Clause
because it seeks to impermissibly divest the Superior Court of jurisdiction and deprive Kayne of
its right as plaintiff to choose the Superior Court as a venue for disputes related to the Purchase
Agreement.
Wl-IEREFORE, Kayne respectfully requests that this Honorable Court enter an Order
rernanding the above-captioned action in its entirety to the Superior Court of Delaware in and for
New Castle County.
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Case 1:08-cv-00141-SLR Document 8 Filed O4/07/2008 Page 3 of 3
Respectfully submitted,
/s/ John C. Phillips, Jr. §#110p
John C. Phillips, Ir. (#110)
Brian E. Faman (#4089)
David A. Bilson (#4986)
PHILLIPS, GOLDMAN & SPENCE, P.A.
1200 North Broom Street
Wilmington, DE 19806
(302) 655-4200
Attorneys for Plaintiff
DATE: April 7, 2008
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