Preview
1 Daniel J. Herling (SBN 103711)
djherling@mintz.com
2 Geoffrey A. Friedman (SBN 302496)
gafriedman@mintz.com
3 Paige E. Adaskaveg (SBN 330551)
peadaskaveg@mintz.com
4 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C.
44 Montgomery Street, 36th Floor
5 San Francisco, CA 94104
Tel: 415-432-6000
6 Fax: 415-432-6001
7 Arameh Zargham O’Boyle (SBN 239495)
azoboyle@mintz.com
8 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C.
2049 Century Park East, Suite 300
9 Los Angeles, CA 90067
Telephone: (310) 586-3200
10 Facsimile: (310) 586-3202
11 Attorneys for Defendant
NATERA, INC.
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SAN MATEO
15 ELIZABETH COPLEY and RACHEL Case No. 23-CIV-03095
CALCATERRA, individually and on behalf of
16 all others similarly situated, NOTICE TO ADVERSE PARTY AND
STATE COURT OF REMOVAL TO
17 FEDERAL COURT
Plaintiffs,
18 vs.
Case Assigned for All Purposes to
NATERA, INC., Honorable Raymond V. Swope in Dept. 23
19
Defendants. Complaint Filed: July 10, 2023
20 Trial Date: Not Set Yet
21
22
23
24
25
26
27
28
-1-
NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL TO FEDERAL COURT
1 TO THE STATE COURT, PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that pursuant to the provisions of 28 U.S.C. § 1446(d), a Notice
3 of Removal of the above-entitled action was filed with the United States District Court for the
4 Northern District of California, on December 8, 2023, under federal case number Case No. 3:23-cv-
5 06342. Under 28 U.S.C. § 1446(d), this case “shall proceed no further unless and until the case is
6 remanded.”
7 A true and correct copy of the Notice of Removal (without exhibits) is attached hereto.
8
9 Dated: December 8, 2023 Respectfully submitted,
10 MINTZ LEVIN COHN FERRIS GLOVSKY AND
POPEO, P.C.
11
12
Daniel J. Herling
13 Arameh Zargham O’Boyle
Geoffrey A. Friedman
14 Paige E. Adaskaveg
15 Attorneys for Defendant
NATERA, INC.
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-
NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL TO FEDERAL COURT
Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 1 of 9
1 Daniel J. Herling (SBN 103711)
djherling@mintz.com
2 Geoffrey A. Friedman (SBN 302496)
gafriedman@mintz.com
3 Paige E. Adaskaveg (SBN 330551)
peadaskaveg@mintz.com
4 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C.
44 Montgomery Street, 36th Floor
5 San Francisco, CA 94104
Tel: 415-432-6000
6 Fax: 415-432-6001
7 Arameh Z. O’Boyle (SBN 239495)
azoboyle@mintz.com
8 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C.
2049 Century Park East, Suite 300
9 Los Angeles, CA 90067
Tel: 310-586-3200
10 Fax: 310-586-3202
11 Adam M. Tschop (SBN 209767)
atschop@natera.com
12 NATERA, INC.
201 Industrial Rd., Suite 300
13 San Carlos, CA 94070-2396
Telephone: 650-980-9190
14
Attorneys for Defendant NATERA, INC.
15
16 UNITED STATES DISTRICT COURT
17 NORTHERN DISTRICT OF CALIFORNIA
18 ELIZABETH COPLEY and RACHEL Case No. 3:23-cv-06342
CALCATERRA, individually and on behalf
19 of all others similarly situated, NOTICE OF REMOVAL OF ACTION
PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND
20 1446
Plaintiffs,
21 vs.
[Removed from the Superior Court of the State of
NATERA, INC., California, County of San Mateo
22 (State Court Case No. 23-CIV-03095)]
23 Defendant.
Complaint Filed: July 10, 2023
FAC Filed: November 8, 2023
24
25
26
27
28
1
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446
(CASE NO. 3:23-CV-06342)
Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 2 of 9
1 TO THE CLERK OF THE ABOVE-ENTITLED COURT:
2 PLEASE TAKE NOTICE that Defendant Natera, Inc. (“Natera” or “Defendant”) hereby
3 removes this civil action from the Superior Court of California, County of San Mateo, to the United
4 States District Court for the Northern District of California pursuant to 28 U.S.C. §§ 1332, 1441, and
5 1446.
6 I. INTRODUCTION AND PROCEDURAL HISTORY
7 A. The Prior Federal Court Action
8 On November 18, 2021, Plaintiff Elizabeth Copley (“Copley”) filed suit against Natera in this
9 Court (No. 21-cv-08941, the “Copley Federal Action”). Copley purported to bring a nationwide
10 consumer fraud class action on behalf of all individuals who had certain genetic testing performed by
11 Natera and were allegedly subsequently billed more than $249 for the test. Copley invoked this
12 Court’s subject matter jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C.
13 §§ 1332, 1453. No. 21-cv-08941, ECF 1, ¶ 11. After the Court granted Defendant’s motion to dismiss
14 with leave to amend, Copley filed her Second Amended Class Action Complaint on September 16,
15 2022, asserting the same claims against Natera (the “Copley Federal Complaint”). No. 21-cv-08941,
16 ECF 55, appended as Exhibit 2.
17 Defendant moved to dismiss again, and on May 8, 2023, this Court dismissed the Copley
18 Federal Complaint based on Copley’s failure to allege facts supporting her Article III standing. ECF
19 No. 64 (“Dismissal Order,” appended as Exhibit 3). Dismissal was without prejudice to Copley filing
20 in state court. Id. at 1.
21 B. The Superior Court Action
22 On July 10, 2023, Copley filed a new action, individually and on behalf of all others similarly
23 situated, in the Superior Court of California, County of San Mateo. Case Number 23-CIV-03095,
24 captioned Elizabeth Copley v. Natera, Inc. (“Superior Court Action”). On November 8, 2023, Copley
25 and a new plaintiff, Rachel Calcaterra (“Calcaterra”) (collectively, “Plaintiffs”) filed an Amended
26 Class Action Complaint (“FAC”) in the Superior Court Action, appended as Exhibit 1.
27
28
2
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446
(CASE NO. 3:23-CV-06342)
Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 3 of 9
1 Plaintiffs’ FAC asserts five causes of action against Defendant for (1) Violations of the
2 California Unfair Competition Law Cal. Bus. & Prof. Code § 17200, et seq., (2) Violations of
3 California Consumers Legal Remedies Act, Civil Code § 1750, et. seq. (“CLRA”), (3) Breach of
4 Implied Contract or Quasi-Contract, (4) Violations of the Connecticut Unfair Trade Practices Act
5 Conn. Gen. Stat. § 42-110b(a), and (5) Violations of the Florida Deceptive and Unfair Trade Practices
6 Act Fla. Stat. § 501.204(1).
7 As with the prior Copley Federal Action, Plaintiffs purport to bring this action on behalf of
8 “[a]ll persons in the United States who had a “Panorama,” “Horizon,” “Vistara,” or “Spectrum” test
9 performed by Natera, and were then billed more than $249 for that test (the “Class”).” FAC ¶¶ 1, 80.
10 The Complaint seeks restitution and/or disgorgement and damages for the Class, injunctive relief,
11 declaratory relief, and recovery of costs and reasonable attorneys’ fees. Id. at ¶¶ 97, 129 and ¶¶ a-h
12 (Prayer).
13 II. REMOVAL IS PROPER BECAUSE THIS COURT HAS CAFA JURISDICTION
14 PURSUANT TO 28 U.S.C. § 1332(D).
15 1. This action is removable pursuant to 28 U.S.C. §§ 1441(a) and 1453(b) because this
16 is a “class action” over which this Court has original jurisdiction.
17 2. As discussed further below, Plaintiff Calcaterra alleges sufficient facts for Article III
18 standing, a prerequisite to jurisdiction in this Court. Plaintiff Copley continues to lack Article III
19 standing, but only one named Plaintiff must satisfy Article III standing requirements for jurisdiction
20 to be proper. See, e.g., Juliana v. United States, 947 F.3d 1159, 1168 (9th Cir. 2020) (“[T]he Article
21 III injury requirement is met if only one plaintiff has suffered concrete harm.”).1
22 3. This Court possesses original jurisdiction under CAFA, 28 U.S.C. §§ 1332(d), 1453.
23 This action meets the CAFA definition of a class action, which includes “any civil action filed under
24
25 1
Because Defendant is not aware of any mechanism for removing only part of an “action” pending
26 in state court, Defendant is removing the entire Superior Court Action. See 28 U.S.C. § 1441(a)
(“[A]ny civil action brought in a State court of which the district courts of the United States have
27 original jurisdiction, may be removed by the defendant . . . .”) (emphasis added). Defendant
recognizes that under this Court’s Dismissal Order in Copley Federal Action, Plaintiff Copley is again
28 subject to dismissal without prejudice based on her lack of Article III standing.
3
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446
(CASE NO. 3:23-CV-06342)
Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 4 of 9
1 rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure
2 authorizing an action to be brought by 1 or more representative persons as a class action” See 28
3 U.S.C. § 1332(d)(1)(B). “CAFA’s provisions should be read broadly, with a strong preference that
4 interstate class actions should be heard in a federal court.” Jauregui v. Roadrunner Transp. Servs., 28
5 F.4th 989, 993 (9th Cir. 2022).
6 4. CAFA extends federal jurisdiction over class actions where: (1) any member of the
7 proposed class is a citizen of a state different from any defendant (i.e., minimal diversity exists);
8 (2) the putative class consists of more than 100 members; and (3) the amount in controversy is $5
9 million or more, aggregating all claims and exclusive of interests and costs. See 28 U.S.C.
10 §§ 1332(d)(2), 1332(d)(5)(B). Each of these requirements is met here for the reasons stated below.
11 A. DIVERSITY OF CITIZENSHIP EXISTS BETWEEN THE PARTIES.
12 5. Minimal diversity exists between Defendant and the members of the putative class
13 under 28 U.S.C. § 1332(d)(2)(A). Under CAFA, minimal diversity is met if “any member of a class
14 of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A).
15 6. At all times relevant to this action, Plaintiff Calcaterra has resided in Florida. FAC
16 ¶ 10. Plaintiff Copley has resided in Connecticut. Id. ¶ 9.
17 7. Natera, Inc. is now, and was at the time of the filing of this action, a company
18 incorporated in the State of Delaware with its corporate headquarters in the State of Texas. Therefore,
19 for purposes of determining diversity, Natera would be considered a citizen of the States of Delaware
20 and Texas.2 28 U.S.C. §1332(c)(1) (deeming the citizenship of a corporation to be where “it has been
21 incorporated and . . . where it has its principal place of business”); Hertz Corp. v. Friend, 559 U.S.
22 77, 92-93 (2010) (concluding that the “principal place of business” is the “nerve center . . . where the
23 corporation maintains its headquarters”). In addition to the named plaintiffs, the proposed class
24 geographically extends to “all persons in the United States,” which would include citizens of states
25
2
26 Plaintiffs’ FAC does not allege the location of Natera’s principal place of business but notes that
Natera has a testing laboratory and office space in the State of California (Ex. 1, FAC ¶¶ 11, 16). This
27 fact is immaterial for purposes of establishing minimal diversity, because neither Plaintiff is a citizen
of the State of California, Delaware or Texas. Moreover, Natera does not have corporate offices or
28 laboratories in the State of Connecticut or the State of Florida and is not a citizen of either state.
4
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446
(CASE NO. 3:23-CV-06342)
Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 5 of 9
1 “different from [the] defendant.” FAC ¶ 80; 28 U.S.C. § 1332(d)(2)(A). CAFA’s minimum diversity
2 requirement is met.
3 B. THE NUMBER OF CLASS MEMBERS’ REQUIREMENT IS SATISFIED.
4 8. CAFA’s requirement that the putative class consists of more than 100 members is
5 satisfied. See 28 U.S.C. § 1332(d)(5)(B). Although Defendant denies that Plaintiffs have properly
6 identified a viable class, or that Plaintiffs are adequate representatives of their putative class,
7 Plaintiffs’ FAC alleges that the class includes “at a minimum, thousands of persons across the United
8 States, including in each of Connecticut and Florida.” Ex. 1, FAC ¶ 83.
9 C. THE AMOUNT IN CONTROVERSY REQUIREMENT IS SATISFIED.
10 9. Where, as here, “the plaintiff’s complaint does not state the amount in controversy, the
11 defendant’s notice of removal may do so.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135
12 S. Ct. 547, 551 (2014). To establish the amount in controversy, a notice of removal “need not contain
13 evidentiary submissions.” Id. Rather, “a defendant’s notice of removal need include only a plausible
14 allegation that the amount in controversy exceeds the jurisdictional threshold.” Id. at 554. “The
15 amount in controversy is simply an estimate of the total amount in dispute, not a prospective
16 assessment of defendant’s liability.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 400 (9th Cir.
17 2010).
18 10. In a putative class action, “the claims of the individual class members shall be
19 aggregated to determine whether the matter in controversy exceeds the [jurisdictional minimum].”
20 28 U.S.C. § 1332(d)(6).
21 11. For purposes of removal only, and without conceding that Plaintiffs or the putative
22 class are entitled to any damages, remedies, or penalties whatsoever (and without conceding the
23 Article III standing of absent putative class members), the FAC shows that the amount in controversy
24 exceeds the jurisdictional minimum of $5,000,000, exclusive of interest and costs. See 28 U.S.C.
25 § 1332(d)(2).
26 12. The amount in controversy readily satisfies CAFA’s threshold based on Plaintiffs’
27 request for actual damages, statutory damages, attorneys’ fees, and injunctive relief. See Lewis, 627
28
5
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446
(CASE NO. 3:23-CV-06342)
Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 6 of 9
1 F.3d at 397 (noting removing defendant need only show “that the potential damages could exceed the
2 jurisdictional amount”); Woods v. CVS Pharm., Inc., No. 14-0259, 2014 U.S. Dist. LEXIS 13339, at
3 *5 (C.D. Cal. Jan. 30, 2014) (“The ultimate inquiry is what amount is put ‘in controversy’ by the
4 plaintiff’s complaint, not what a defendant will actually owe.”). The requisite amount in controversy
5 “does not mean likely or probable liability; rather, it refers to possible liability.” Jauregui, 28 F.4th
6 at 994 (citation omitted).
7 13. Plaintiffs’ FAC requests “restitution to Plaintiffs and the Class and/or disgorge[ment
8 of Defendant’s] profits pursuant to Business & Professions Code § 17203,” Ex. 1, FAC ¶¶ 97;
9 damages under the CLRA, FAC ¶ 118; damages under the Connecticut Unfair Trade Practices Act
10 Conn. Gen. Stat. § 42-110b(a), FAC ¶ 138; damages under the Florida Deceptive and Unfair Trade
11 Practices Act, FAC ¶ 143; and punitive damages. FAC, prayer ¶ c.
12 14. The alleged damages alone clear the amount in controversy threshold. In the prior
13 Copley Federal Action, this Court issued an Order to Show Cause re CAFA Jurisdiction (“OSC”).
14 Copley Federal Action, ECF 38. In response, Copley explained how, based on Natera’s testing
15 volume and employing “extremely conservative” assumptions, she believed the damages she was
16 seeking on behalf of the putative nationwide class would “easily exceed[] $7 million at the absolute
17 minimum,” and could exceed $540 million employing a different set of “equally reasonable”
18 assumptions. Copley Federal Action, ECF 40, at 4 (appended as Exhibit 4). After receiving Plaintiff’s
19 filing, this Court discharged the OSC and the case continued in federal court. Copley Federal Action,
20 ECF 44. Plaintiff later filed a Second Amended Class Action Complaint in the Copley Federal Action,
21 specifically alleging that “the matter in controversy exceeds the sum or value of $5 million, exclusive
22 of interest and costs.” Exhibit 2, Copley Federal Action, ECF 55 ¶ 12.
23 15. The operative FAC in the Superior Court Action, in turn, continues to advance the
24 same claims and theories on behalf of a nationwide class, placing the same or similar amount in
25 controversy. While Defendant continues to deny any liability to Plaintiff, Plaintiffs or the putative
26 class members (and denies that Plaintiff or Plaintiffs will be able to establish that a class should be
27 certified), Plaintiffs’ allegations and Plaintiff’s prior representations to this Court are sufficient to
28
6
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446
(CASE NO. 3:23-CV-06342)
Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 7 of 9
1 establish that the amount in controversy exceeds $5 million and to support the exercise of CAFA
2 jurisdiction.
3 16. The CLRA also provides for substantial statutory damages, which independently could
4 clear the CAFA threshold. The CLRA provides a minimum award of statutory damages of $1,000 per
5 violation. See Cal. Civ. Code § 1780; see, e.g., Morey v. Louis Vuitton N. Am., Inc., 461 F. App’x
6 642, 643 (9th Cir. 2011); Brooks v. Life Care Ctrs. of Am., Inc., 2014 U.S. Dist. LEXIS 27539, at
7 *16-17 (C.D. Cal. Feb. 21, 2014); Pickman v. Am. Express Co., No. 11-5326, 2012 U.S. Dist. LEXIS
8 9662, at *5 (N.D. Cal. Jan. 27, 2012) (“The amount in controversy is satisfied by multiplying the
9 minimum amount of damages to be sought under the CLRA ($1,000) by the number of alleged
10 violations (5,001).”).
11 17. Finally, Plaintiffs’ FAC seeks attorneys’ fees. FAC, ¶ g (Prayer). It is “well established
12 that courts should consider attorney’s fees recoverable by statute when calculating the amount in
13 controversy.” Canesco v. Ford Motor Co., 570 F. Supp. 3d 872, 903 (S.D. Cal. 2021). The Court may
14 consider the “amount of fees commonly incurred in similar litigation” as a reasonable benchmark for
15 determining the amount in controversy. Brady v. Mercedes-Benz USA, Inc., 243 F. Supp. 2d 1004,
16 1010-11 (N.D. Cal. 2002). In several class action cases invoking the same or similar consumer
17 protection statutory causes of action, based on allegations of false or misleading statements, plaintiffs’
18 attorneys have sought in excess of $2-3 million in attorneys’ fees. See, e.g., Brown v. Hain Celestial
19 Group, Inc., No. 11-3082, 2016 U.S. Dist. LEXIS 20118 (N.D. Cal. Feb. 18, 2016) (UCL, FAL, and
20 CLRA misleading class action seeking approval of over $3 million in attorneys’ fees); Hendricks v.
21 Starkist Co., No. 13-729, 2016 U.S. Dist. LEXIS 134872 (N.D. Cal. Sep. 29, 2016) (same); Retta v.
22 Millennium Products, Inc., No. 15-1801, 2017 U.S. Dist. LEXIS 220288 (C.D. Cal. Aug. 22, 2017)
23 (same; seeking approval in excess of $2 million in fees). Plaintiffs’ counsel here would likely seek at
24 least this amount of fees for representing this putative “nationwide” class.
25 18. For the foregoing reasons, CAFA’s amount in controversy requirement is met.
26
27
28
7
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446
(CASE NO. 3:23-CV-06342)
Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 8 of 9
1 III. ALL OTHER STATUTORY REQUIREMENTS FOR REMOVAL HAVE BEEN
2 SATISFIED.
3 19. Venue is proper in the United States District Court for the Northern District of
4 California because the Superior Court of the State of California for the County of San Mateo is located
5 in this judicial district. See 28 U.S.C. § 1441(a).
6 20. As there are no other named defendants in this action other than Defendant, no consent
7 to removal is necessary.
8 21. Removal is timely because Defendant removed this action “within thirty days after
9 receipt by the defendant, through service or otherwise, of a copy of an amended pleading . . . from
10 which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C.
11 § 1446(b)(3).
12 22. Plaintiff Copley served Defendant with the Summons and Complaint in the Superior
13 Court Action on July 17, 2023. At that time, this action was not subject to removal. As this Court
14 previously determined, Plaintiff Copley lacks Article III standing to bring any of her claims. Ex. 3,
15 Copley Federal Action, ECF No. 64 (“Dismissal Order”). The original Complaint filed by Copley in
16 the Superior Court Action did not add any allegations that would have conferred Article III standing
17 upon Copley, who remained the sole named plaintiff in the Complaint. As with the dismissed Copley
18 Federal Complaint, she had suffered no Article III injury and had “not pled sufficient facts to support
19 her contention that she relied on misrepresentations made directly or indirectly by Natera regarding
20 the price of their genetic test.” Ex. 3, Dismissal Order at 7.
21 23. On November 8, 2023, Copley, along with new Plaintiff Calcaterra, filed and
22 electronically served the FAC. Copley’s allegations were materially unchanged. Unlike Copley,
23 Calcaterra alleges sufficient facts to support Article III standing. In particular, Calcaterra alleges that
24 she (1) relied on representations in a brochure disseminated by Natera; and (2) suffered an injury
25 because she paid $749 out-of-pocket for a genetic test when she purportedly expected to pay no more
26 than $249. Since Plaintiff Calcaterra alleges sufficient facts to support Article III standing under the
27
28
8
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446
(CASE NO. 3:23-CV-06342)
Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 9 of 9
1 rubric of this Court’s Dismissal Order, this action became subject to removal under CAFA upon filing
2 and service of the FAC on Defendant.
3 24. This Notice of Removal is being timely filed within thirty (30) days of Defendant’s
4 receipt of the FAC, which is “an amended pleading . . . from which it may first be ascertained that
5 the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3).
6 25. Pursuant to 28 U.S.C. § 1446(a), Defendant has attached, as Exhibit 5, true and correct
7 copies of all process, pleadings, and orders served upon Defendant or otherwise filed in the Superior
8 Court Action.
9 26. Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of Removal will be promptly
10 served on Plaintiffs as evidenced by the Certificate of Service and a Notice of Filing of Notice of
11 Removal filed with the clerk of the Superior Court of the State of California for the County of San
12 Mateo.
13 27. No admission of fact, law, or liability is intended by this Notice of Removal.
14 Defendant does not waive and expressly reserves all defenses, objections, counterclaims, and motions
15 otherwise available to it.
16 IV. CONCLUSION
17 For the foregoing reasons, this action is within this Court’s original jurisdiction and meets all
18 requirements for removal, such that removal is proper under 28 U.S.C. §§ 1332(d), 1441, and 1446.
19 Accordingly, Defendant respectfully removes this action from the Superior Court for the State of
20 California, County of San Mateo, to this Court.
21 Dated: December 8, 2023 Respectfully submitted,
22 MINTZ LEVIN COHN FERRIS GLOVSKY AND
POPEO, P.C.
23
24
Daniel J. Herling
25 Arameh Z. O’Boyle
Geoffrey A. Friedman
26 Paige E. Adaskaveg
27 Attorneys for Defendant NATERA, INC.
28
9
NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446
(CASE NO. 3:23-CV-06342)
1 PROOF OF SERVICE
2 I am employed in the County of Los Angeles, my business address is Mintz Levin Cohn
Ferris Glovsky and Popeo, P.C., 2049 Century Park East, Suite 300, Los Angeles, California
3 90067. I am over the age of 18 and not a party to the foregoing action.
4 On December 8, 2023, I caused a copy of the following document NOTICE TO
ADVERSE PARTY AND STATE COURT OF REMOVAL TO FEDERAL COURT to be
5 served on the interested parties in this action by placing a true and correct copy thereof, enclosed in
a sealed envelope, and addressed as follows:
6
XX BY Pursuant to CCP § 1010.6 and California Rules of Court, Rule 2.250, I
7 EMAIL: caused the document(s) above to be served by electronic mail
transmission by transmitting a PDF format copy of such document(s) to
8 each such person at the e-mail address listed below. The document(s)
was/were transmitted by electronic transmission and such transmission
9 was reported as complete and without error.
10 Joseph J. Tabacco, Jr. Patricia I. Avery
Kristin J. Moody Philip M. Black
11 Alexander S. Vahdat WOLF POPPER LLP
BERMAN TABACCO 845 Third Avenue
12 425 California Street, Suite 2300 New York, NY 10022
San Francisco, CA 94104 Telephone: (212) 759-4600
13 Telephone: (415) 433-3200 Email: pavery@wolfpopper.com
Facsimile: (415) 433-6382 pblack@wolfpopper.com
14 Email: jtabacco@bermantabacco.com
kmoody@bermantabacco.com Attorneys for Plaintiff ELIZABETH COPLEY
15 avahdat@bermantabacco.com
16
Attorneys for Plaintiff ELIZABETH COPLEY
17
Honorable V. Raymond Swope
18 San Mateo Superior Court
Dept. 23
19 dept23@sanmateocourt.org
complexcivil@sanmateocourt.org
20
21 I declare under penalty of perjury that the above is true and correct. Executed on
December 8, 2023, at Los Angeles, California.
22
23 JAZMIN LEON
24
25
26
27
28
-1-
PROOF OF SERVICE
Preview
1 Daniel J. Herling (SBN 103711) djherling@mintz.com 2 Geoffrey A. Friedman (SBN 302496) gafriedman@mintz.com 3 Paige E. Adaskaveg (SBN 330551) peadaskaveg@mintz.com 4 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C. 44 Montgomery Street, 36th Floor 5 San Francisco, CA 94104 Tel: 415-432-6000 6 Fax: 415-432-6001 7 Arameh Zargham O’Boyle (SBN 239495) azoboyle@mintz.com 8 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C. 2049 Century Park East, Suite 300 9 Los Angeles, CA 90067 Telephone: (310) 586-3200 10 Facsimile: (310) 586-3202 11 Attorneys for Defendant NATERA, INC. 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SAN MATEO 15 ELIZABETH COPLEY and RACHEL Case No. 23-CIV-03095 CALCATERRA, individually and on behalf of 16 all others similarly situated, NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL TO 17 FEDERAL COURT Plaintiffs, 18 vs. Case Assigned for All Purposes to NATERA, INC., Honorable Raymond V. Swope in Dept. 23 19 Defendants. Complaint Filed: July 10, 2023 20 Trial Date: Not Set Yet 21 22 23 24 25 26 27 28 -1- NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL TO FEDERAL COURT 1 TO THE STATE COURT, PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that pursuant to the provisions of 28 U.S.C. § 1446(d), a Notice 3 of Removal of the above-entitled action was filed with the United States District Court for the 4 Northern District of California, on December 8, 2023, under federal case number Case No. 3:23-cv- 5 06342. Under 28 U.S.C. § 1446(d), this case “shall proceed no further unless and until the case is 6 remanded.” 7 A true and correct copy of the Notice of Removal (without exhibits) is attached hereto. 8 9 Dated: December 8, 2023 Respectfully submitted, 10 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C. 11 12 Daniel J. Herling 13 Arameh Zargham O’Boyle Geoffrey A. Friedman 14 Paige E. Adaskaveg 15 Attorneys for Defendant NATERA, INC. 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL TO FEDERAL COURT Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 1 of 9 1 Daniel J. Herling (SBN 103711) djherling@mintz.com 2 Geoffrey A. Friedman (SBN 302496) gafriedman@mintz.com 3 Paige E. Adaskaveg (SBN 330551) peadaskaveg@mintz.com 4 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C. 44 Montgomery Street, 36th Floor 5 San Francisco, CA 94104 Tel: 415-432-6000 6 Fax: 415-432-6001 7 Arameh Z. O’Boyle (SBN 239495) azoboyle@mintz.com 8 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C. 2049 Century Park East, Suite 300 9 Los Angeles, CA 90067 Tel: 310-586-3200 10 Fax: 310-586-3202 11 Adam M. Tschop (SBN 209767) atschop@natera.com 12 NATERA, INC. 201 Industrial Rd., Suite 300 13 San Carlos, CA 94070-2396 Telephone: 650-980-9190 14 Attorneys for Defendant NATERA, INC. 15 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 ELIZABETH COPLEY and RACHEL Case No. 3:23-cv-06342 CALCATERRA, individually and on behalf 19 of all others similarly situated, NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 20 1446 Plaintiffs, 21 vs. [Removed from the Superior Court of the State of NATERA, INC., California, County of San Mateo 22 (State Court Case No. 23-CIV-03095)] 23 Defendant. Complaint Filed: July 10, 2023 FAC Filed: November 8, 2023 24 25 26 27 28 1 NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (CASE NO. 3:23-CV-06342) Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 2 of 9 1 TO THE CLERK OF THE ABOVE-ENTITLED COURT: 2 PLEASE TAKE NOTICE that Defendant Natera, Inc. (“Natera” or “Defendant”) hereby 3 removes this civil action from the Superior Court of California, County of San Mateo, to the United 4 States District Court for the Northern District of California pursuant to 28 U.S.C. §§ 1332, 1441, and 5 1446. 6 I. INTRODUCTION AND PROCEDURAL HISTORY 7 A. The Prior Federal Court Action 8 On November 18, 2021, Plaintiff Elizabeth Copley (“Copley”) filed suit against Natera in this 9 Court (No. 21-cv-08941, the “Copley Federal Action”). Copley purported to bring a nationwide 10 consumer fraud class action on behalf of all individuals who had certain genetic testing performed by 11 Natera and were allegedly subsequently billed more than $249 for the test. Copley invoked this 12 Court’s subject matter jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. 13 §§ 1332, 1453. No. 21-cv-08941, ECF 1, ¶ 11. After the Court granted Defendant’s motion to dismiss 14 with leave to amend, Copley filed her Second Amended Class Action Complaint on September 16, 15 2022, asserting the same claims against Natera (the “Copley Federal Complaint”). No. 21-cv-08941, 16 ECF 55, appended as Exhibit 2. 17 Defendant moved to dismiss again, and on May 8, 2023, this Court dismissed the Copley 18 Federal Complaint based on Copley’s failure to allege facts supporting her Article III standing. ECF 19 No. 64 (“Dismissal Order,” appended as Exhibit 3). Dismissal was without prejudice to Copley filing 20 in state court. Id. at 1. 21 B. The Superior Court Action 22 On July 10, 2023, Copley filed a new action, individually and on behalf of all others similarly 23 situated, in the Superior Court of California, County of San Mateo. Case Number 23-CIV-03095, 24 captioned Elizabeth Copley v. Natera, Inc. (“Superior Court Action”). On November 8, 2023, Copley 25 and a new plaintiff, Rachel Calcaterra (“Calcaterra”) (collectively, “Plaintiffs”) filed an Amended 26 Class Action Complaint (“FAC”) in the Superior Court Action, appended as Exhibit 1. 27 28 2 NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (CASE NO. 3:23-CV-06342) Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 3 of 9 1 Plaintiffs’ FAC asserts five causes of action against Defendant for (1) Violations of the 2 California Unfair Competition Law Cal. Bus. & Prof. Code § 17200, et seq., (2) Violations of 3 California Consumers Legal Remedies Act, Civil Code § 1750, et. seq. (“CLRA”), (3) Breach of 4 Implied Contract or Quasi-Contract, (4) Violations of the Connecticut Unfair Trade Practices Act 5 Conn. Gen. Stat. § 42-110b(a), and (5) Violations of the Florida Deceptive and Unfair Trade Practices 6 Act Fla. Stat. § 501.204(1). 7 As with the prior Copley Federal Action, Plaintiffs purport to bring this action on behalf of 8 “[a]ll persons in the United States who had a “Panorama,” “Horizon,” “Vistara,” or “Spectrum” test 9 performed by Natera, and were then billed more than $249 for that test (the “Class”).” FAC ¶¶ 1, 80. 10 The Complaint seeks restitution and/or disgorgement and damages for the Class, injunctive relief, 11 declaratory relief, and recovery of costs and reasonable attorneys’ fees. Id. at ¶¶ 97, 129 and ¶¶ a-h 12 (Prayer). 13 II. REMOVAL IS PROPER BECAUSE THIS COURT HAS CAFA JURISDICTION 14 PURSUANT TO 28 U.S.C. § 1332(D). 15 1. This action is removable pursuant to 28 U.S.C. §§ 1441(a) and 1453(b) because this 16 is a “class action” over which this Court has original jurisdiction. 17 2. As discussed further below, Plaintiff Calcaterra alleges sufficient facts for Article III 18 standing, a prerequisite to jurisdiction in this Court. Plaintiff Copley continues to lack Article III 19 standing, but only one named Plaintiff must satisfy Article III standing requirements for jurisdiction 20 to be proper. See, e.g., Juliana v. United States, 947 F.3d 1159, 1168 (9th Cir. 2020) (“[T]he Article 21 III injury requirement is met if only one plaintiff has suffered concrete harm.”).1 22 3. This Court possesses original jurisdiction under CAFA, 28 U.S.C. §§ 1332(d), 1453. 23 This action meets the CAFA definition of a class action, which includes “any civil action filed under 24 25 1 Because Defendant is not aware of any mechanism for removing only part of an “action” pending 26 in state court, Defendant is removing the entire Superior Court Action. See 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a State court of which the district courts of the United States have 27 original jurisdiction, may be removed by the defendant . . . .”) (emphasis added). Defendant recognizes that under this Court’s Dismissal Order in Copley Federal Action, Plaintiff Copley is again 28 subject to dismissal without prejudice based on her lack of Article III standing. 3 NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (CASE NO. 3:23-CV-06342) Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 4 of 9 1 rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure 2 authorizing an action to be brought by 1 or more representative persons as a class action” See 28 3 U.S.C. § 1332(d)(1)(B). “CAFA’s provisions should be read broadly, with a strong preference that 4 interstate class actions should be heard in a federal court.” Jauregui v. Roadrunner Transp. Servs., 28 5 F.4th 989, 993 (9th Cir. 2022). 6 4. CAFA extends federal jurisdiction over class actions where: (1) any member of the 7 proposed class is a citizen of a state different from any defendant (i.e., minimal diversity exists); 8 (2) the putative class consists of more than 100 members; and (3) the amount in controversy is $5 9 million or more, aggregating all claims and exclusive of interests and costs. See 28 U.S.C. 10 §§ 1332(d)(2), 1332(d)(5)(B). Each of these requirements is met here for the reasons stated below. 11 A. DIVERSITY OF CITIZENSHIP EXISTS BETWEEN THE PARTIES. 12 5. Minimal diversity exists between Defendant and the members of the putative class 13 under 28 U.S.C. § 1332(d)(2)(A). Under CAFA, minimal diversity is met if “any member of a class 14 of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). 15 6. At all times relevant to this action, Plaintiff Calcaterra has resided in Florida. FAC 16 ¶ 10. Plaintiff Copley has resided in Connecticut. Id. ¶ 9. 17 7. Natera, Inc. is now, and was at the time of the filing of this action, a company 18 incorporated in the State of Delaware with its corporate headquarters in the State of Texas. Therefore, 19 for purposes of determining diversity, Natera would be considered a citizen of the States of Delaware 20 and Texas.2 28 U.S.C. §1332(c)(1) (deeming the citizenship of a corporation to be where “it has been 21 incorporated and . . . where it has its principal place of business”); Hertz Corp. v. Friend, 559 U.S. 22 77, 92-93 (2010) (concluding that the “principal place of business” is the “nerve center . . . where the 23 corporation maintains its headquarters”). In addition to the named plaintiffs, the proposed class 24 geographically extends to “all persons in the United States,” which would include citizens of states 25 2 26 Plaintiffs’ FAC does not allege the location of Natera’s principal place of business but notes that Natera has a testing laboratory and office space in the State of California (Ex. 1, FAC ¶¶ 11, 16). This 27 fact is immaterial for purposes of establishing minimal diversity, because neither Plaintiff is a citizen of the State of California, Delaware or Texas. Moreover, Natera does not have corporate offices or 28 laboratories in the State of Connecticut or the State of Florida and is not a citizen of either state. 4 NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (CASE NO. 3:23-CV-06342) Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 5 of 9 1 “different from [the] defendant.” FAC ¶ 80; 28 U.S.C. § 1332(d)(2)(A). CAFA’s minimum diversity 2 requirement is met. 3 B. THE NUMBER OF CLASS MEMBERS’ REQUIREMENT IS SATISFIED. 4 8. CAFA’s requirement that the putative class consists of more than 100 members is 5 satisfied. See 28 U.S.C. § 1332(d)(5)(B). Although Defendant denies that Plaintiffs have properly 6 identified a viable class, or that Plaintiffs are adequate representatives of their putative class, 7 Plaintiffs’ FAC alleges that the class includes “at a minimum, thousands of persons across the United 8 States, including in each of Connecticut and Florida.” Ex. 1, FAC ¶ 83. 9 C. THE AMOUNT IN CONTROVERSY REQUIREMENT IS SATISFIED. 10 9. Where, as here, “the plaintiff’s complaint does not state the amount in controversy, the 11 defendant’s notice of removal may do so.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 12 S. Ct. 547, 551 (2014). To establish the amount in controversy, a notice of removal “need not contain 13 evidentiary submissions.” Id. Rather, “a defendant’s notice of removal need include only a plausible 14 allegation that the amount in controversy exceeds the jurisdictional threshold.” Id. at 554. “The 15 amount in controversy is simply an estimate of the total amount in dispute, not a prospective 16 assessment of defendant’s liability.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 400 (9th Cir. 17 2010). 18 10. In a putative class action, “the claims of the individual class members shall be 19 aggregated to determine whether the matter in controversy exceeds the [jurisdictional minimum].” 20 28 U.S.C. § 1332(d)(6). 21 11. For purposes of removal only, and without conceding that Plaintiffs or the putative 22 class are entitled to any damages, remedies, or penalties whatsoever (and without conceding the 23 Article III standing of absent putative class members), the FAC shows that the amount in controversy 24 exceeds the jurisdictional minimum of $5,000,000, exclusive of interest and costs. See 28 U.S.C. 25 § 1332(d)(2). 26 12. The amount in controversy readily satisfies CAFA’s threshold based on Plaintiffs’ 27 request for actual damages, statutory damages, attorneys’ fees, and injunctive relief. See Lewis, 627 28 5 NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (CASE NO. 3:23-CV-06342) Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 6 of 9 1 F.3d at 397 (noting removing defendant need only show “that the potential damages could exceed the 2 jurisdictional amount”); Woods v. CVS Pharm., Inc., No. 14-0259, 2014 U.S. Dist. LEXIS 13339, at 3 *5 (C.D. Cal. Jan. 30, 2014) (“The ultimate inquiry is what amount is put ‘in controversy’ by the 4 plaintiff’s complaint, not what a defendant will actually owe.”). The requisite amount in controversy 5 “does not mean likely or probable liability; rather, it refers to possible liability.” Jauregui, 28 F.4th 6 at 994 (citation omitted). 7 13. Plaintiffs’ FAC requests “restitution to Plaintiffs and the Class and/or disgorge[ment 8 of Defendant’s] profits pursuant to Business & Professions Code § 17203,” Ex. 1, FAC ¶¶ 97; 9 damages under the CLRA, FAC ¶ 118; damages under the Connecticut Unfair Trade Practices Act 10 Conn. Gen. Stat. § 42-110b(a), FAC ¶ 138; damages under the Florida Deceptive and Unfair Trade 11 Practices Act, FAC ¶ 143; and punitive damages. FAC, prayer ¶ c. 12 14. The alleged damages alone clear the amount in controversy threshold. In the prior 13 Copley Federal Action, this Court issued an Order to Show Cause re CAFA Jurisdiction (“OSC”). 14 Copley Federal Action, ECF 38. In response, Copley explained how, based on Natera’s testing 15 volume and employing “extremely conservative” assumptions, she believed the damages she was 16 seeking on behalf of the putative nationwide class would “easily exceed[] $7 million at the absolute 17 minimum,” and could exceed $540 million employing a different set of “equally reasonable” 18 assumptions. Copley Federal Action, ECF 40, at 4 (appended as Exhibit 4). After receiving Plaintiff’s 19 filing, this Court discharged the OSC and the case continued in federal court. Copley Federal Action, 20 ECF 44. Plaintiff later filed a Second Amended Class Action Complaint in the Copley Federal Action, 21 specifically alleging that “the matter in controversy exceeds the sum or value of $5 million, exclusive 22 of interest and costs.” Exhibit 2, Copley Federal Action, ECF 55 ¶ 12. 23 15. The operative FAC in the Superior Court Action, in turn, continues to advance the 24 same claims and theories on behalf of a nationwide class, placing the same or similar amount in 25 controversy. While Defendant continues to deny any liability to Plaintiff, Plaintiffs or the putative 26 class members (and denies that Plaintiff or Plaintiffs will be able to establish that a class should be 27 certified), Plaintiffs’ allegations and Plaintiff’s prior representations to this Court are sufficient to 28 6 NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (CASE NO. 3:23-CV-06342) Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 7 of 9 1 establish that the amount in controversy exceeds $5 million and to support the exercise of CAFA 2 jurisdiction. 3 16. The CLRA also provides for substantial statutory damages, which independently could 4 clear the CAFA threshold. The CLRA provides a minimum award of statutory damages of $1,000 per 5 violation. See Cal. Civ. Code § 1780; see, e.g., Morey v. Louis Vuitton N. Am., Inc., 461 F. App’x 6 642, 643 (9th Cir. 2011); Brooks v. Life Care Ctrs. of Am., Inc., 2014 U.S. Dist. LEXIS 27539, at 7 *16-17 (C.D. Cal. Feb. 21, 2014); Pickman v. Am. Express Co., No. 11-5326, 2012 U.S. Dist. LEXIS 8 9662, at *5 (N.D. Cal. Jan. 27, 2012) (“The amount in controversy is satisfied by multiplying the 9 minimum amount of damages to be sought under the CLRA ($1,000) by the number of alleged 10 violations (5,001).”). 11 17. Finally, Plaintiffs’ FAC seeks attorneys’ fees. FAC, ¶ g (Prayer). It is “well established 12 that courts should consider attorney’s fees recoverable by statute when calculating the amount in 13 controversy.” Canesco v. Ford Motor Co., 570 F. Supp. 3d 872, 903 (S.D. Cal. 2021). The Court may 14 consider the “amount of fees commonly incurred in similar litigation” as a reasonable benchmark for 15 determining the amount in controversy. Brady v. Mercedes-Benz USA, Inc., 243 F. Supp. 2d 1004, 16 1010-11 (N.D. Cal. 2002). In several class action cases invoking the same or similar consumer 17 protection statutory causes of action, based on allegations of false or misleading statements, plaintiffs’ 18 attorneys have sought in excess of $2-3 million in attorneys’ fees. See, e.g., Brown v. Hain Celestial 19 Group, Inc., No. 11-3082, 2016 U.S. Dist. LEXIS 20118 (N.D. Cal. Feb. 18, 2016) (UCL, FAL, and 20 CLRA misleading class action seeking approval of over $3 million in attorneys’ fees); Hendricks v. 21 Starkist Co., No. 13-729, 2016 U.S. Dist. LEXIS 134872 (N.D. Cal. Sep. 29, 2016) (same); Retta v. 22 Millennium Products, Inc., No. 15-1801, 2017 U.S. Dist. LEXIS 220288 (C.D. Cal. Aug. 22, 2017) 23 (same; seeking approval in excess of $2 million in fees). Plaintiffs’ counsel here would likely seek at 24 least this amount of fees for representing this putative “nationwide” class. 25 18. For the foregoing reasons, CAFA’s amount in controversy requirement is met. 26 27 28 7 NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (CASE NO. 3:23-CV-06342) Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 8 of 9 1 III. ALL OTHER STATUTORY REQUIREMENTS FOR REMOVAL HAVE BEEN 2 SATISFIED. 3 19. Venue is proper in the United States District Court for the Northern District of 4 California because the Superior Court of the State of California for the County of San Mateo is located 5 in this judicial district. See 28 U.S.C. § 1441(a). 6 20. As there are no other named defendants in this action other than Defendant, no consent 7 to removal is necessary. 8 21. Removal is timely because Defendant removed this action “within thirty days after 9 receipt by the defendant, through service or otherwise, of a copy of an amended pleading . . . from 10 which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. 11 § 1446(b)(3). 12 22. Plaintiff Copley served Defendant with the Summons and Complaint in the Superior 13 Court Action on July 17, 2023. At that time, this action was not subject to removal. As this Court 14 previously determined, Plaintiff Copley lacks Article III standing to bring any of her claims. Ex. 3, 15 Copley Federal Action, ECF No. 64 (“Dismissal Order”). The original Complaint filed by Copley in 16 the Superior Court Action did not add any allegations that would have conferred Article III standing 17 upon Copley, who remained the sole named plaintiff in the Complaint. As with the dismissed Copley 18 Federal Complaint, she had suffered no Article III injury and had “not pled sufficient facts to support 19 her contention that she relied on misrepresentations made directly or indirectly by Natera regarding 20 the price of their genetic test.” Ex. 3, Dismissal Order at 7. 21 23. On November 8, 2023, Copley, along with new Plaintiff Calcaterra, filed and 22 electronically served the FAC. Copley’s allegations were materially unchanged. Unlike Copley, 23 Calcaterra alleges sufficient facts to support Article III standing. In particular, Calcaterra alleges that 24 she (1) relied on representations in a brochure disseminated by Natera; and (2) suffered an injury 25 because she paid $749 out-of-pocket for a genetic test when she purportedly expected to pay no more 26 than $249. Since Plaintiff Calcaterra alleges sufficient facts to support Article III standing under the 27 28 8 NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (CASE NO. 3:23-CV-06342) Case 3:23-cv-06342 Document 1 Filed 12/08/23 Page 9 of 9 1 rubric of this Court’s Dismissal Order, this action became subject to removal under CAFA upon filing 2 and service of the FAC on Defendant. 3 24. This Notice of Removal is being timely filed within thirty (30) days of Defendant’s 4 receipt of the FAC, which is “an amended pleading . . . from which it may first be ascertained that 5 the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). 6 25. Pursuant to 28 U.S.C. § 1446(a), Defendant has attached, as Exhibit 5, true and correct 7 copies of all process, pleadings, and orders served upon Defendant or otherwise filed in the Superior 8 Court Action. 9 26. Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of Removal will be promptly 10 served on Plaintiffs as evidenced by the Certificate of Service and a Notice of Filing of Notice of 11 Removal filed with the clerk of the Superior Court of the State of California for the County of San 12 Mateo. 13 27. No admission of fact, law, or liability is intended by this Notice of Removal. 14 Defendant does not waive and expressly reserves all defenses, objections, counterclaims, and motions 15 otherwise available to it. 16 IV. CONCLUSION 17 For the foregoing reasons, this action is within this Court’s original jurisdiction and meets all 18 requirements for removal, such that removal is proper under 28 U.S.C. §§ 1332(d), 1441, and 1446. 19 Accordingly, Defendant respectfully removes this action from the Superior Court for the State of 20 California, County of San Mateo, to this Court. 21 Dated: December 8, 2023 Respectfully submitted, 22 MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C. 23 24 Daniel J. Herling 25 Arameh Z. O’Boyle Geoffrey A. Friedman 26 Paige E. Adaskaveg 27 Attorneys for Defendant NATERA, INC. 28 9 NOTICE OF REMOVAL OF ACTION PURSUANT TO 28 U.S.C. §§ 1332, 1441, AND 1446 (CASE NO. 3:23-CV-06342) 1 PROOF OF SERVICE 2 I am employed in the County of Los Angeles, my business address is Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., 2049 Century Park East, Suite 300, Los Angeles, California 3 90067. I am over the age of 18 and not a party to the foregoing action. 4 On December 8, 2023, I caused a copy of the following document NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL TO FEDERAL COURT to be 5 served on the interested parties in this action by placing a true and correct copy thereof, enclosed in a sealed envelope, and addressed as follows: 6 XX BY Pursuant to CCP § 1010.6 and California Rules of Court, Rule 2.250, I 7 EMAIL: caused the document(s) above to be served by electronic mail transmission by transmitting a PDF format copy of such document(s) to 8 each such person at the e-mail address listed below. The document(s) was/were transmitted by electronic transmission and such transmission 9 was reported as complete and without error. 10 Joseph J. Tabacco, Jr. Patricia I. Avery Kristin J. Moody Philip M. Black 11 Alexander S. Vahdat WOLF POPPER LLP BERMAN TABACCO 845 Third Avenue 12 425 California Street, Suite 2300 New York, NY 10022 San Francisco, CA 94104 Telephone: (212) 759-4600 13 Telephone: (415) 433-3200 Email: pavery@wolfpopper.com Facsimile: (415) 433-6382 pblack@wolfpopper.com 14 Email: jtabacco@bermantabacco.com kmoody@bermantabacco.com Attorneys for Plaintiff ELIZABETH COPLEY 15 avahdat@bermantabacco.com 16 Attorneys for Plaintiff ELIZABETH COPLEY 17 Honorable V. Raymond Swope 18 San Mateo Superior Court Dept. 23 19 dept23@sanmateocourt.org complexcivil@sanmateocourt.org 20 21 I declare under penalty of perjury that the above is true and correct. Executed on December 8, 2023, at Los Angeles, California. 22 23 JAZMIN LEON 24 25 26 27 28 -1- PROOF OF SERVICE