Ce aD eR wD SEYFARTH SHAW LLP CL STMICT cower Lorraine H. O’Hara (SBN peentiiel mail: lohara@sey G29 Contury ‘ark Bast, ‘Suite 3500, JAN 2.5 2011 les, California 90067. reieanace GOR 7-100 Facsimile: (310) 201-5219 ' SEYFARTH SHAW LLP ieee Zoroato (SBN 190412, lop sey! 38 Sout! treet, Suite: 3500 he epg fornia 90071-1406 el Faceimie: = oa 3 370.9601 At s for Defendant. MERCK SHARP & DOHME CORP. UNITED STATES DISTRICT COURT ‘CENTRAL DISTRICT OF CALIFORNIA JASON D. FRUDAKIS, an individual, CASE NO. behalf of himself and all = pac (vo shunt shamed ser” SH Eb dao eateb 36) REMOVAL Plaintiff, BRR QUESTION, ITY AND CLASS ACTION] FAIRNESS ACT OF 200% i US.C, MERCK SHARP & DOHME CORP., ) §§1331,1332, 1367 AND 1441] and Does 1 through 50, ve. Defendants. Complaint filed:' Dec. 10, 2010 TO THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA AND TO PLAINTIFF AND HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE that Defendant Merck Sharp & Dohme Corp. Merck” or “Defendant”) hereby removes the above-referenced action from the ‘Superior Court of the State of California for the County of Orange, to the United States District Court for the Central Distriot of California, pursuant to-28 U.S.C. 1 NOTICE OF REMOVAL 1305966302§§1441 and 1446, asserting original federal jurisdiction under 28 U.S.C. §§1332(d)(2) (the Class Action Fairness Act of 2005 (“CAFA”)), federal question jurisdiction under 28 U.S.C. §1331 and diversity jurisdiction under 28 U.S.C. §1332(a), and states that removal is proper for the following reasons. BACKGROUND. 1, Plaintiff Jason D. Frudakis (“Plaintiff") initially filed this action against Merck on December 7, 2010 in the United States District Court, Southern District of California, case entitled: Jason D. Frudakis, et al. v. Merck Sharp & Dohme Corp. et al, Case No, 10CV2509 L CAB (the “Federal Court Complaint”). A true and correct copy of the Federal Court Complaint in this action is attached hereto as Exhibit A. The Federal Court Complaint was never served on Defendant, 2. Rather, in what appears to be an attempt to forum and/or judge shop, Plaintiff immediately dismissed the Federal Court Complaint, Attached hereto as Exhibit B is a true and correct copy of the dismissal obtained from the court's records. The dismissal was never served on Defendant. 3, Acomplaint that was substantially the same as the Federal Court Complaint was filed in the Superior Court of the State of California for the County of Orange, captioned Jason D. Frudakis, et al. v. Merck Sharp & Dohme Corp. et Jal, Case No, 30-2010-0043 1914-CU-OE-CSC on or about December 10, 2010 (“State Court Complaint”),' A true and correct copy of the Summons and State ‘Court Complaint is attached hereto as Exhibit C, Plaintiff's only substantive revisions contained in the State Court Complaint are to the “Jurisdiction and Venue” allegations. Otherwise, Plaintiff's claims and allegations are identical in both complaints, as are the parties, 4, Inhis State Court Complaint (as well as his prior Federal Court "Notably, L.R. 83-1,2.1 provides: “It is not permissible to dismiss and thereafter refile an action for the purpose of obtaining a different judge.” 2 NOTICE OF REMOVAL 1305966302Cer Auneen Complaint), Plaintiff purports to allege on behalf of himself and classes of similarly-situated Sales Representative employees in California and nationwide, ‘that Merck failed to pay them overtime in violation of the Fair Labor Standards Act (29 U.S.C. §§ 201, et seq.) and California law, failed to provide them meal and] rest breaks as required by California law (California putative class only), failed to provide them with accurate itemized wage statements as required by California law| (California putative class only) and failed to timely pay them all wages due at the time of termination as required by California law (California putative class only). Plaintiff further alleges Merck’s alleged conduct constitutes unfair competition in violation of California Business and Professions Code §§17200 et seq. (California putative class only). 5. On December 27, 2010, Plaintiff served the Summons and State Court| Complaint on Merck’s agent for service of process, CT Corporation. 6. Onor about January 6, 2011, Plaintiff served Defendant with his Notice of Violations of California Labor Code §§ 201, 203, 204, 226(a), 226.7, 510, 512, 551, 552, 1174, 1194, 1197, 1198 and the Applicable Industrial Welfare ‘Wage Commission Wage Orders, pursuant to California Labor Code § 2699.5. A true and correct copy of said notice is attached hereto as Exhibit D. 7. On January 21, 2011, Merck served and filed its Answer to the State ‘Court Complaint asserting a general denial of Plaintiff's allegations and affirmative defenses, A true and correct copy of Merck’s Answer to the State ‘Court Complaint is attached hereto as Exhibit B. 8 On January 21, 2011, Merck further served and filed its Preemptory Challenge pursuant to Cal. Code of Civ. Proc. §170.6. A true and correct copy of Merck’s Preemptory Challenge pursuant to Cal. Code of Civ, Proc. §170.6 is attached hereto as Exhibit F. 9, Exhibits C and D constitute all pleadings, process and orders served on Defendant in this action. 3 ‘NOTICE OF REMOVAL 10sseeav2