Case 3:15-cv-00134-RLY-WGH Document 1 Filed 09/28/15 Page 1 of 5 PageID #: 1

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
PROFESSIONAL TRANSPORTATION, INC.

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PLAINTIFF
v.
ROBERT E. WARMKA
DEFENDANT

Civil Action No. ________________

NOTICE OF REMOVAL
Please take notice that defendant, Robert E. Warmka (Mr. Warmka), by counsel and
pursuant to 28 U.S.C. 1441 and 1446, hereby submits this notice of removal of the abovecaptioned case, which was originally filed in Vanderburgh Superior Court, as Cause No. 82D061508-PL-4384. In support of removal, Mr. Warmka states as follows.
1.

On August 27, 2015, the plaintiff, Professional Transportation, Inc. (Plaintiff),

filed a complaint in Vanderburgh Superior Court (Cause No. 82D06-1508-PL-4384) against one
defendant, Mr. Warmka.
2.

Mr. Warmkas removal of the state court action is timely. A defendant seeking

removal of an action filed in state court must file notice of removal within 30 days of service of
the complaint upon the defendant, provided that federal jurisdiction is apparent. See 28 U.S.C.
1446(b). Mr. Warmka was served with the summons and a copy of the complaint on September
11, 2015. This notice of removal is being filed within 30 days of the date when Mr. Warmka was
served.

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3.

The Vanderburgh Superior Court is located within the Evansville Division of the

United States District Court for the Southern District of Indiana. Venue is proper under 28 U.S.C.
1391(b)(2) because a substantial part of the events allegedly giving rise to the claim occurred in
Vanderburgh County, Indiana.
4.

Pursuant to 28 U.S.C. 1446(a), copies of all process, pleadings and orders

served upon Mr. Warmka are attached as Exhibit 1 to this Notice of Removal.
5.

This Court has jurisdiction over the subject matter of this action on at least two

separate and independent grounds. First, the Court has exclusive federal-question jurisdiction
over this action pursuant to 28 U.S.C. 1331 and 1338 because Plaintiff asserts a claim for
copyright infringement and seeks remedies under 17 U.S.C. 504 and 505. (Ex. 1, 40-46.)
This Court therefore has original jurisdiction over Plaintiffs Copyright claims under 28 U.S.C.
1331 and 1338. See, e.g., Prominent Consulting LLC v. Allen Bros., 543 F. Supp. 2d 877, 879-81
(N.D. Ill. 2008); Brooks-Ngwenya v. Indianapolis Pub. Schs., 564 F.3d 804, 807 (7th Cir. 2009)
(The federal courts have exclusive jurisdiction of copy-right cases.).
6.

Under 28 U.S.C. 1367, this Court has supplemental jurisdiction over the

Plaintiffs remaining Indiana state law claims because those claims are so related to claims in the
action within such original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution. The claims arise out of the same transaction and
occurrence that allegedly forms the basis of Plaintiffs copyright infringement claims.
7.

Second, as an independent basis for federal jurisdiction, this Court has diversity-

of-citizenship jurisdiction under 28 U.S.C. 1332(a) because, as detailed below, this is a civil
action between citizens of different states and the amount of controversy exceeds $75,000.

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8.

Plaintiff is an Indiana corporation with its principal place of business at 3700 E.

Morgan Avenue, Evansville, Vanderburgh County, Indiana. (Complaint, p. 1 and 1.) Plaintiff
was a citizen of Indiana and at the time of filing of this action and remains as citizen of Indiana as
of the filing of this notice of removal.
9.

Mr. Warmka resides at 6153 W. 143rd Street, Savage, Minnesota 55378.

(Complaint, p. 2.) He is a citizen of Minnesota and was at the time of filing of the action.
10.

Plaintiffs Complaint does not demand a specific dollar amount in damages.

Because the Complaint seeks monetary damages but does not state the amount in controversy, this
notice of removal may assert the amount in controversy. 28 U.S.C. 1446(c)(2)(A)(ii). Plaintiff
seeks damages for loss of business and profits suffered by reason of Defendant or anyone acting
through him [sic] solicitation of Plaintiffs customers and wrongful appropriation of Plaintiffs
trade secrets or for infringement of Plaintiffs copyrighted materials. (Ex. 1, Prayer for Relief.)
In correspondence with Mr. Warmkas current employer, Plaintiff has alleged that its damages
exceed $100,000. (See July 6, 2015 letter from Attorney Wallace, Exhibit 2.) Thus, by a
preponderance of evidence, the amount in controversy exceeds $75,000. See, e.g., Meridian Sec.
Ins. Co. v. Sadowski, 441 F.3d 536, 541 (7th Cir. 2006) (defendant may use plaintiffs settlement
demand to establish amount in controversy).
11.

This Court has jurisdiction over this case pursuant to 28 U.S.C. 1332(a)(1)

because: (1) this is an action between a citizen of Indiana (Plaintiff) and a citizen of a different
state, Minnesota (Mr. Warkma); and (2) the amount in controversy exceeds $75,000.
12.

Pursuant to 28 U.S.C. 1446(d), a copy of this Notice of Removal, as well as a

Notice of Filing for this Notice of Removal, is being filed with the Clerk of the Vanderburgh
Superior Court, and a copy of the same is being served upon all parties.

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13.

Mr. Warmka reserves the right to amend or supplement this Notice of Removal or

to present additional arguments in support of its entitlement to remove this case.

14.

Mr. Warmka reserves all defenses and objections, including, without limitation,

the defenses of insufficiency of process, insufficiency of service of process, lack of personal

jurisdiction, and any other defenses or objections available under applicable law, and the filing of
this Notice of Removal is subject to, and without waiver of, any such defenses or objections.
15.

WHEREFORE, notice is respectfully given that this action is hereby removed

from the Vanderburgh Superior Court to the United States District Court for the Southern District
of Indiana.
*****
Respectfully submitted,
/s/ Anthony M. Zelli
Anthony M. Zelli
Dinsmore & Shohl LLP
101 South Fifth Street, Suite 2500
Louisville, KY 40202
Telephone: (502) 540-2300
Facsimile: (502) 585-2207
anthony.zelli@dinsmore.com
Counsel for Defendant, Robert E. Warmka

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CERTIFICATE OF SERVICE
I hereby certify that on September 28, 2015, I electronically filed the foregoing with the
clerk of the court by using the CM/ECF system, which will serve copies of the same on the
following counsel of record:
Paul J. Wallace
Craig R. Emig
Jones Wallace, LLC
420 Main Street, Suite 1600
P.O. Box 1065
Evansville, IN 47706
Counsel for Plaintiff

/s/ Anthony M. Zelli

Counsel for Defendant, Robert Warmka

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