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City Center v Office Depot

City Center v Office Depot

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Published by Seth Leventhal
City Center Associates Ltd. Partnership Notice of Removal, filed with the United States District Court, District of Minnesota
City Center Associates Ltd. Partnership Notice of Removal, filed with the United States District Court, District of Minnesota

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Published by: Seth Leventhal on Jan 22, 2010
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02/26/2010

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Case 0:10-cv-00191-RHK-JJK Document 1

Filed 01/22/10 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

CITY CENTER ASSOCIATES LIMITED PARTNERSHIP, a Connecticut limited partnership Plaintiff, v. OFFICE DEPOT, INC., Defendant.

DEFENDANT OFFICE DEPOT, INC.’S NOTICE OF REMOVAL TO FEDERAL COURT Court File No. ________________

Defendant Office Depot, Inc. (“Office Depot” or “Defendant”), for its Notice of Removal of this case to the United States District Court for the District of Minnesota, states as follows: 1. Defendant and Plaintiff are parties to a lease for the use of commercial

property at the City Center mall in downtown Minneapolis, Minnesota. Defendant is the tenant, and Plaintiff is the landlord. On or about December 31, 2009, Defendant received a Summons and Complaint styled as an eviction action, entitled City Center Associates Limited Partnership v. Office Depot, Inc., 27-CV-HC-09-9652, venued in Hennepin County District Court, Fourth Judicial District, State of Minnesota. A copy of the Summons and Complaint is attached as Exhibit A. 2. On January 11, 2010, Defendant Answered the Complaint, denying all

relevant allegations. A copy of this Answer is attached hereto as Exhibit B.

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Filed 01/22/10 Page 2 of 4

3.

Also on January 11, 2010, a hearing before a Referee was scheduled in

Hennepin County District Court. While both Plaintiff and Defendant appeared, and although Defendant submitted a hearing memorandum, attached hereto as Exhibit C, no hearing took place. Plaintiff had made a demand for a judge rather than a referee, and the parties were asked to assemble in Judge John McShane’s courtroom. Because Defendant had made a jury demand, however, Judge McShane did not conduct a substantive hearing. The parties agreed to appear for a jury trial on February 2, 2010. A copy of the scheduling notice is attached as Exhibit D. 4. On January 15, 2010, Plaintiff’s counsel executed an Amended Complaint,

which was served via U.S. Mail on January 19, 2010, and received by Defendant on January 20, 2010. A copy of this Amended Complaint is attached hereto as Exhibit E. No further substantive proceedings have taken place in this action since the receipt of the Amended Complaint by Defendant. 5. This is a civil action over which this Court has original jurisdiction under

28 U.S.C. § 1332 (diversity) and which may be removed to this Court by defendant pursuant to the provisions of 28 U.S.C. § 1441(a). Plaintiff is a Connecticut corporation with its principal place of business in Minnesota. Defendant is a Delaware corporation with its principal place of business in Florida. There is thus complete diversity of citizenship. 6. The amount in controversy in this suit exceeds the jurisdictional threshold

of an amount in excess of $75,000.00. At issue in this case is a multi-year lease for commercial property between the parties. First executed in 1999, the initial ten year term
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Case 0:10-cv-00191-RHK-JJK Document 1

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of the lease has been continued pursuant to an executed extension of the Lease by Defendant. There are more than three years remaining on the current term of the lease, and Defendant has the right to extend the lease for three additional terms of five year each. Pursuant to the Lease between the parties, the use of the property is valuated at $15,479.17 per month. See Exhibit A att’d to Plaintiff’s Amended Complaint, att’d hereto as Exhibit E, at p. 4, § 4.01. Pursuant to a rent abatement provision in the lease, however, Defendant’s rent is abated as a result of the Plaintiff’s failure to maintain a minimum level of retail co-tenancy in the City Center mall. See id. at 10, § 5.04. In its current Complaint, Plaintiff alleges that the rental value of the property is $10,479,17 per month. See Exhibit E at ¶ 17. In its Amended Complaint, Plaintiff now alleges that the rent abatement provision of the Lease has been nullified, giving Plaintiff the alleged right to payment of rent under the Lease. See id. at ¶ 17. The value of the alleged right sought to be enforced by Plaintiff in this action, recovery of the property or the forced payment of rent in contravention of the Lease’s abatement provision, thus exceeds $100,000 for this year alone, and exceeds $2,000,000.00 for the remaining life of the lease. The issue in controversy thus exceeds the jurisdictional amount of more than $75,000 set forth in 28 U.S.C. § 1332(a). 7. This action may be removed pursuant to 28 U.S.C. § 1441(a) because this

Court has original diversity jurisdiction. 8. On the same date as this Notice of Removal was signed, Defendant served

by hand delivery a copy of this Notice of Removal upon Plaintiff’s counsel at the address

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set forth in the Complaint: Kevin R. Coan, Esq. and Laura N. Maupin, Esq., Barnes & Thornburg, LLP, 100 South Fifth Street, Suite 1100, Minneapolis, MN 55402. 9. On the same date as this Notice of Removal was signed, Defendant served

and filed by messenger a copy of this Notice of Removal with the District Court Administrator for Hennepin County, Fourth Judicial District, Minnesota, the district in which this action was commenced and pending at the time this Notice of Removal was filed with this Court. WHEREFORE, Defendant respectfully requests that the above-entitled action now pending against it in the Hennepin County District Court, Fourth Judicial District, Minnesota, be removed therefrom to this Court.

Dated: January 22, 2010 S/Andre Hanson Andre Hanson, #0258234 Fulbright & Jaworski L.L.P. 2100 IDS Center 80 South Eighth Street Minneapolis, MN 55402-2112 (612) 321-2800 (612) 321-2288 Fax Attorney for Defendant Office Depot, Inc.

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