1 JOANNA R. MENDOZA, (CaL. State Bar No. 148320) LAW OFFICES OF JOANNA R. MENDOZA, P.C.

2 P.O. Box 2593

Granite Bay, CA 95746

3 (916) 781-7600

(916) 781-7601 FAX

4 jmendoza~theip1awfrm.com
5 Attorneys for Defendants

THOMAS T. AOKI, M.D., and 6 AOKI DIABETES RESEARCH INSTITUTE

7 8

IN THE UNITED STATES DISTRICT COURT

9 10

FOR THE EASTERN DISTRICT OF CALIFORNIA

12 Plaintiff,
13 vs.
14 THOMAS T. AOKI, M.D. and AOKI DIAETES RESEARCH INSTITUTE, and 15 DOES 1 - 100, inclusive,

11 KENNTH MUY,

) CASE

NO.

) )

) DEFENDANT'S NOTICE TO FEDERAL ) COURT OF REMOVAL OF CIVI ) ACTION FROM STATE COURT ) PURSUANT TO 28 U.S.C. 1331, 1338,
) 1441 AND 1446
) )

16 Defendants.
17

) )

18 TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN

19 DISTRCT OF CALIFORNIA, SACRAENTO DIVISION; AND TO PLAINTIFF KENNTH

20 MURRY, AN PLAINTIFF'S ATTORNEY OF RECORD, BRIN S. HADIX:

21 I.
22

JUSDICTION
1.

This action has been removed pursuant to Sections 1441 and 1446, and the federal
this matter pursuant to Sections 1331, 1338 of Title 28 of

23 cour has exclusive jurisdiction of

the

24 United States Code and 35 U.S.C. 271.

25

2.

Defendant THOMAS T. AOKI, M.D. (hereinafter Dr. Aoki), hereby gives Notice

26 of Removal of the above-captioned action from the Sacramento County Superior Court, Case

27 No. 34-2012-00122877, to this Cour, and states that on or about April 25, 2012, Dr. Aoki
28 received a copy of the Summons and Complaint in that underlying state court action captioned:
1

NOTICE OF REMOVAL OF CIVIL ACTION BY DEFENDANT THOMAS T. AOKI, M.D.

1 Kenneth Murray v. Thomas T. Aoki, MD., Aoki Diabetes Research Institute and Does 1 to 100.

2 Plaintiffs Sumons and Complaint is attached hereto as Exhibit A.

3 3.

Plaintiff s Complaint states at least one cause of action arising under federal

4 exclusive jurisdiction - patent infrngement under 35 U.S.c. 271 and possibly copyrght

5 infrngement under 17 U.S.C. 101 et seq.. Although the Plaintiff fails to identify any single

6 cause of action, instead merely titling the complaint "COMPLAINT FOR REMOVAL OF

7 DIRCTORS FOR CAUSE, FOR DECLARTORY RELIEF, INJUCTIV RELIEF, FOR

8 RETU OF ASSETS AN DAMGES," a review of

the actual stated allegations and

9 remedies sought makes it clear that the Plaintiffs Complaint alleges that Dr. Aoki does not own

10 the rights to certain patents and technology at issue, and possibly even copyrght rights, and that

11 he and the Doe defendants are engaging in patent and possibly copyrght infrngement. The
12 following are by way of example, and not limitation: attempting to "eliminate ownership of
13 technology rights, held by others" ~44; ''using the assets. ..for their own purposes," ~48; Dr.

14 Aoki has controlled the technology but it is "not rightfully his" ~5 1 (g) resulting in his ongoing

15 infrnging activities which must be enjoined; "has converted both assets and intellectual property
16 rights" ~51(n); and "exercising dominion and control of... personal propert in the form of

17 intellectual property rights ~52.

18 H.
19

EXCLUSIV FEDERA QUESTION JUSDICTION AND RELATED CASE

4.

Any civil action of which the distrct cours have original jursdiction founded on

20 a claim or right arsing under the Constitution, treaties or laws of the United States shall be
21 removable without regard to the citizenship or residence ofthe parties. 28 U.S.C. 1441(b).
22
5.
Whether the claim "arises under" federal

law for removal puroses is determined

23 by the "well-pleaded complaint rule" which examines the facial allegations ofthe complaint to
24 determne if federal question jurisdiction exists. Rivet v. Regions Bank of Louisiana, 522 U.S. 25 470,475 (1998) (federal courts have jurisdiction to hear, originally or by removal, cases in which
26 a well-pleaded complaint establishes that federal

law creates the cause of action, or that the

27 plaintiffs right to relief necessarily depends on resolution of a substantial question of federal

28 law).
2
NOTICE OF REMOVAL OF CIVIL ACTION BY DEFENDANT THOMAS T. AOKI, M.D.

6.

Although the Plaintiff s Complaint is not titled as one for either Patent or

2 Copyrght Infrngement, a review of the allegations make it clear that the Plaintiff is asserting
3 such claims. This is especially tre when one considers this complaint together with the Related

4 Case curently pending with this cour entitled, Aoki et. al. v. Gilbert, et al., Case NO.2: ll-cv5 02797-MCE -CKD (See Notice of

Related Case filed concurently herewith). The technology at

6 issue are patents identified in the already pending Aoki v. Gilbert case, and the fiing in Superior

7 Cour was simply defendant Gilbert's creative but unsuccessful means of attempting to work

8 around the federal court to tr and have a second court undermine the efforts of the already
9 proceeding case against him in this cour.

10

7.

Accordingly, because it is apparent from the face of the Complaint that a federal

11 question has been presented, and that the matter is directly related to an existing case before
12 Judge England, Dr. Aoki cannot be afforded the full relief he seeks without resolution of

these

13 similar and related substantial questions of

federal

law. Therefore, this case is now appropriately

14 before this court pursuant to exclusive federal question

jursdiction under 28 U.S.C. 1331 and

15 1338.
16
8.

Contemporaneously with the filing of this pleading with the Clerk of the United

17 States Distrct Cour for the Eastern Distrct of California, Sacramento Division, Dr. Aoki is
18 filing a Notice of Removal in the Sacramento Superior Cour proceeding, a copy of

which is

19 attached hereto as Exhibit B (without its exhibit), with the Clerk ofthe Sacramento County
20 Superior Cour.

21

9.

By this Notice of

Removal, Dr. Aoki does not waive any defenses he may have,

22 including, but not limited to, insufficiency of service, absence of service, and any defenses that
23 he may assert pursuant to Rule 12 of the Federal Rules of

Civil Procedure, and hereby expressly

24 reserves the right to assert any such defense in this action.

25 HI. INTRAISTRICT ASSIGNMNT

26
10.

Pursuant to L.R. 3-120(d), this case is properly assigned to the Sacramento

the alleged events which gave rise to the claim occurred in

27 Division, as a substantial par of

28 Sacramento County, California.

3

NOTICE OF REMOVAL OF CIVIL ACTION BY DEFENDANT THOMAS T. AOKI, M.D.

Respectfully submitted,

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10
11

DATED: May 17, 2012

LAW OFFICES OF JOANA R. MENDOZA, PC

lsi Joanna R. Mendoza JOANNA R. MENDOZA Attorney for Plaintiffs

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NOTICE OF REMOVAL OF CIVIL ACTION BY DEFENDANT THOMAS T. AOKI, M.D.