UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami Division Case No. _____________________________ KENNETH P.

SHAW, and individual; and SHAW ROSE NETS, LLC, a Florida limited liability company, Plaintiffs, v. BROAD AND CASSEL, a Florida general partnership; BROAD AND CASSEL, P.A., a Florida professional association; MARK F. RAYMOND, an individual; MARK F. RAYMOND, P.A., a Florida professional association; RHETT TRABAND, an individual; RHETT TRABAND, P.A., a Florida professional association; and JUANCARLOS SANCHEZ, an individual, Defendants. _____________________________________/ NOTICE OF REMOVAL Pursuant to 28 U.S.C. 1446, Defendants hereby remove this action from the Circuit Court of Eleventh Judicial Circuit in and for Miami-Dade County, Florida, where the abovestyled action is now pending, to the United States District Court for the Southern District of Florida. The removal of this action is based upon the following: BACKGROUND 1. On September 9, 2011, Plaintiffs (hereinafter Shaw) filed an action in Florida

Circuit Court entitled Shaw, et al. v. Broad and Cassel, et al., Case No. 11-28914 CA 31 (hereinafter referred to as the State Court Action). Shaw filed an amended complaint in the State Court Action on September 29, 2011. A copy of the amended complaint that was served

on the Defendants is attached hereto as Exhibit A. 2. 2011. Defendants were served with process in the State Court Action on October 6,

Copies of the Summons are attached hereto as Exhibit B. 3. Shaws amended complaint purports to state a claim against Defendants for legal

malpractice arising out of litigation to declare invalid and unenforceable a patent held by Shaw. 4. The underlying action in this litigational malpractice claim is the case entitled

Delaware Valley Floral Group, Inc., et al. v. Shaw Rose Nets, LLC, et al., Case No. 1:07-cv20199-Jordan (S.D. Fla.), in which flower importers and distributors sued Shaw for a declaratory judgment that a patent held by Shaw for increasing the size of rose heads during growth was invalid and unenforceable. infringement. Shaw asserted counterclaims against all plaintiffs for patent

In that patent litigation, the law firm Broad and Cassel, and attorneys Mark F.

Raymond, Rhett Traband and Juancarlos Sanchez represented Shaw. A copy of the amended complaint in the Delaware Valley v. Shaw case is attached hereto as Exhibit C; a copy of Shaws counterclaim in that case is attached hereto as Exhibit D. 5. Summary judgment was entered against Shaw in the Delaware Valley case. A

copy of the Order Granting Plaintiffs Motion for Summary Judgment is attached hereto as exhibit E. Shaw appealed the summary judgment to the U.S. Circuit Court for the Federal Circuit, and the court of appeals affirmed. A copy of the circuit court opinion is attached hereto as exhibit F. 6. In the present case, Shaw claims that but for the Defendants negligence, it

would have prevailed on the claims and counterclaims in the Delaware Valley litigation. [Exh. A, 50, 54]. 7. Defendants have filed herewith a Civil Action Cover Sheet and have paid the

required filing fee. No previous removal of this action has been made. Upon filing this Notice of Removal, written notice of the filing shall be made with the Clerk of the Florida Eleventh Circuit Court in and for Miami-Dade County. JURISDICTIONAL BASIS FOR REMOVAL Shaws attorney malpractice action, in which Shaw alleges that but for Defendants negligence it would have prevailed on its patent infringement claim, necessarily involves an issue of federal patent law, and therefore is within the jurisdiction of this Court. The underlying litigation in Delaware Valley v. Shaw was a patent infringement case within the subject-matter jurisdiction of this Court pursuant to 28 U.S.C. 1338(a), which provides: The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases. Section 1441(a) further provides that such an action is removable to the district court: [A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. Under Florida law, a plaintiff in a legal malpractice suit must prove three elements: (1) the attorney's employment; (2) the attorney's neglect of a reasonable duty; and (3) that the attorney's negligence resulted in and was the proximate cause of loss to the client. Sure Snap Corp. v. Baena, 705 So.2d 46, 48 (Fla. 3d DCA 1997), review denied, 719 So.2d 288 (Fla. 1998); Bolves v. Hullinger, 629 So.2d 198, 200 (Fla. 5th DCA 1993); Weiner v. Moreno, 271 So.2d 217, 219 (Fla. 3d DCA 1972). In a case of litigational malpractice, the plaintiff must

prove that, but for the alleged negligence of the defendant attorney, the plaintiff would have prevailed in the underlying case. Sure Snap, 705 So.2d. at 49; Bolves, 629 So.2d at 200-01. This case-within-a-case element of causation requires any unresolved legal and factual issues of the underlying litigation be re-litigated in the malpractice case. Although Shaws attorney malpractice claim is grounded in state law, the Court has subject matter jurisdiction pursuant to 28 U.S.C. 1338(a), because the legal malpractice claim turns on a question of federal patent law, i.e., whether, but for the alleged negligence of the Defendants, Shaws patent would have been declared valid and enforceable and Shaw would have prevailed on its infringement claims. See Immunocept, LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281, 1284-86 (Fed. Cir. 2007); Cold Spring Harbor Lab. v. Ropes & Gray, LLP, 762 F.Supp.2d 543, 552 (E.D.N.Y. 2011). As the Federal Circuit held in Immunocept: [Section] 1338 jurisdiction extends to any case in which a wellpleaded complaint establishes either that federal patent law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the wellpleaded claims. 504 F.3d at 1284 (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 809 (1988)). Even though, in Immunocept, the plaintiffs sole claim was for negligence under state law, the circuit court held that there was no way the plaintiff could prevail without addressing the effect, under patent law, of the defendant attorneys alleged negligence on the plaintiffs rights. Id. at 1285. The court therefore held that the attorney malpractice claim was one arising under federal patent law and therefore within the jurisdiction of the federal courts under section 1338(a). Id. at 1289. In Air Measurement Technologies, Inc. v. Akin Gump Strauss Hauer & Feld, LLP, 504 4

F.3d 1262 (Fed. Cir. 2007), the court discussed at length the basis for section 1338(a) arising under jurisdiction in the malpractice context. The court held that because of the but for causation element of a litigational malpractice claim, the plaintiff would of necessity have to demonstrate that it would have prevailed, under federal patent law, in the underlying case. The court held: Because the underlying suit here is a patent infringement action against . . . defendants, the district court will have to adjudicate, hypothetically, the merits of the infringement claim. Because proof of patent infringement is necessary to show [plaintiff] would have prevailed in the prior litigation, patent infringement is a necessary element of [plaintiffs] malpractice claim and therefore apparently presents a substantial question of patent law conferring 1338 jurisdiction. Indeed, we would consider it illogical for the [district court] to have jurisdiction under 1338 to hear the underlying infringement suit and for us then to determine that the same court does not have jurisdiction under 1338 to hear the same substantial patent question in the case within a case context of a state malpractice claim. Id. at 1269 (citations omitted). Measurement, stating: [F]ederal courts have exclusive jurisdiction over state-law legal malpractice actions when the adjudication of the malpractice claim requires the court to address the merits of the plaintiff's underlying patent infringement lawsuit. Warrior Sports, Inc. v. Dickinson Wright, P.L.L.C., 631 F.3d 1367, 1371 (Fed. Cir. 2011). CONCLUSION On the grounds set forth above, the Court has jurisdiction over the State Court Action, and Defendants hereby request that this cause proceed in its entirety in this Court. The Federal Circuit has recently reaffirmed its holding in Air

Respectfully submitted, 5

/s/ Isaac J. Mitrani Isaac J. Mitrani Fla. Bar No. 348538 imitrani@mitrani.com Pamela A. Chamberlin Fla. Bar No. 444006 pchamberlin@mitrani.com MITRANI, RYNOR, ADAMSKY & TOLAND, P.A. 301 Arthur Godfrey Road Penthouse Miami Beach, Florida 33140 Telephone: (305) 358-0050 Fax: (305) 358-0550 Attorneys for Defendants

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 12, 2011, I electronically filed the foregoing document with the Clerk of Court via CM/ECF and that the foregoing document is being served this day on all counsel of record or pro se parties identified on Service List below in the manner specified. /s/ Isaac J. Mitrani

SERVICE LIST

Jeffrey D. Feldman, Esq. jfeldman@feldmangale.com Christopher P. Demetriades, Esq. cdemetriades@feldmangale.com FELDMAN GALE, P.A. One Biscayne Tower, 30th Floor Miami, Florida 33131 Telephone: (305) 358-5001 Fax: (305) 358-3309 Attorneys for Plaintiffs via U.S. Mail