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Case 1:16-cv-01506-LEK-CFH

Document 1

Filed 12/19/16

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

ACACIA COMMUNICATIONS, INC.,

v.

Plaintiff,

THE RESEARCH FOUNDATION FOR THE STATE UNIVERSITY OF NEW YORK,

SUNY POLYTECHNIC INSTITUTE,

and

COLLEGE OF NANOSCALE SCIENCE AND ENGINEERING,

Defendants.

CIVIL ACTION

1:16-CV-1506 (LEK/CFH)

COMPLAINT AND JURY DEMAND

Plaintiff Acacia Communications, Inc. (“Acacia” or “Plaintiff”) brings this civil

action against Defendants The Research Foundation for the State University of New York

(“the Foundation”), SUNY Polytechnic Institute (“SUNY Poly”), and the College of

Nanoscale Science and Engineering (“CNSE”) (collectively “Defendants”).

THE PARTIES

1. Plaintiff Acacia is a Delaware Corporation having a place of business at

Three Clock Tower Place, Suite 100, Maynard, MA 01754.

2. Upon information and belief, Defendant Foundation is a private non-profit

educational corporation established pursuant to Section 216-a of the New York State

Education Law, with its principal offices located at 35 State Street, Albany, New York

12207.

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3. Upon information and belief, Defendant CNSE, formerly known as

College of Nanoscale Science and Engineering at the University at Albany, is a college of

SUNY Poly, with its principal offices located at 257 Fuller Road, Albany, New York

12203.

4. Upon information and belief, Defendant SUNY Poly is a non-profit

educational corporation established pursuant to Section 216-a of the New York State

Education Law, with its principal offices located at 100 Seymour Road Utica, New York

13502, and is jointly and severally liable for Defendant CNSE’s obligations and

liabilities.

JURISDICTION AND VENUE

5. Plaintiff is a Delaware Corporation and Defendants are educational

corporations under the laws of the State of New York. Acacia seeks damages for

Defendants’ failure to perform under a contract entered into with Acacia, damages

associated with the Defendants’ past disclosure of Acacia’s proprietary and confidential

information, and injunctive relief associated with the Defendants’ ongoing disclosure of

such information. Damages and other relief sought herein are in an amount greater than

$75,000. As a result, this Court has jurisdiction pursuant to 28 U.S.C. § 1332.

Jurisdiction over the state law claims is proper under 28 U.S.C. § 1367.

6. Venue is proper in this judicial district under 28 U.S.C. § 1391(b).

BACKGROUND

7. Acacia is a leader in network technology. Acacia’s mission is to deliver

high-speed coherent optical interconnect products that transform communications

networks, relied upon by cloud infrastructure operators and content and communication

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service providers, through improvements in performance and capacity and a reduction in

associated costs.

8. In December 2013, Acacia and the Foundation, acting on behalf of CNSE,

entered into an agreement titled “Research Agreement” (the “Agreement”).

9. The Agreement relates to research and development activities in the area

of silicon photonics. By the terms of the Agreement, Acacia approved funding to support

a research and development project, which would be conducted and supervised by a

principal investigator, Douglas Coolbaugh, at CNSE, pursuant to the Scope of Work

(“SOW”) incorporated into the Agreement. (Agreement at ¶1).

10. The Agreement contemplates the receipt of confidential information by

the parties during the course of the research collaboration. (Agreement at ¶7).

Defendants agreed “to hold and maintain all such [confidential] information, whether oral

or written, in confidence and not disclose to others, not make copies of it, not use it,

except as expressly agreed beforehand by [Acacia].” (Agreement at ¶7(a)).

11. Under the Agreement, Defendants were not permitted to publish the

results of research conducted under the Agreement unless, “prior to any publication, or

presentation” they provided Acacia “with at least thirty (30) days notice of any proposed

publication as well as the full content of that publication for [Acacia’s] review.”

(Agreement at ¶8).

12. Further, under no circumstances did Defendants have any right, under the

Agreement, to publish any of Acacia’s proprietary and confidential information: “The

parties agree that in the event [Acacia] provides written notice to the Foundation that the

information proposed to be disclosed or published contains confidential or proprietary

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information of [Acacia], the Foundation, CNSE and their personnel shall not publish or

disclose the information as proposed and the parties shall negotiate an acceptable version

of the proposed disclosure.” (Agreement at ¶8).

DEFENDANTS’ UNAUTHORIZED DISCLOSURE OF PLAINTIFF’S CONFIDENTIAL AND PROPRIETARY INFORMATION

13. In April 2016, Acacia became aware that CNSE made certain confidential

and proprietary information of Acacia’s publicly available in violation of the Agreement.

14. Upon information and belief, CNSE disclosed a document entitled “AIM

Photonics Design Guide” (the “Guide”) to members of the American Institute for

Manufacturing Integrated Photonics (“AIM”) in anticipation of AIM’s First Quarter

Project Status Update Meeting on April 14, 2016 (“AIM Meeting”).

15. Upon information and belief, the Guide was thereafter presented and made

available to any members of AIM or the public attending the AIM Meeting.

16. The Guide expressly references Acacia’s confidential and proprietary

information.

17. On April 8, 2016, pursuant to Paragraph 8 of the Agreement, Acacia

notified CNSE that CNSE had disclosed Acacia’s confidential and proprietary

information and of Acacia’s understanding of CNSE’s plan for additional, future

disclosures of such information

18. In its April 8, 2016 letter, Acacia also noted that CNSE had failed to

provide Acacia of its intent to disclose such information thirty days prior to the proposed

disclosure or publication pursuant to Section 8 of the Agreement.

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19. Upon information and belief, CNSE refused and failed to cease such

publication or to remedy such breach, and continues to disclose Acacia’s confidential and

proprietary information to members of AIM and the general public.

PLAINTIFF’S TERMINATION OF THE AGREEMENT

20. On July 28, 2016, Acacia wrote to CNSE regarding CNSE’s failure to

provide to Acacia certain products it was required to deliver to Acacia under the

Agreement and CNSE’s refusal to collaborate with Acacia’s personnel as mandated by

the Agreement.

21. In the July 28, 2016 letter, Acacia notified CNSE, pursuant to Sections 5

and 11 of the Agreement, that Acacia would terminate the Agreement thirty (30) days

from the date of the notice because of these deficiencies. (Agreement at ¶5, 11).

22. In the July 28, 2016 letter, Acacia requested that CNSE return the sum of

$51,000 for work for which Acacia had paid but that CNSE had failed to perform under

the Agreement.

23. Upon termination of the Agreement, CNSE was required to perform

certain obligations under the Agreement, including returning to Acacia or destroying any

and all items provided to CNSE by Acacia under the Agreement. (Agreement at ¶5).

24. To date, CNSE has not responded to Acacia’s July 28, 2016 notification of

termination, has upon information and belief failed to comply with its obligations under

the Agreement to return or destroy any and all items provided to CNSE by Acacia under

the Agreement, and has not provided Acacia with the refund to which it is entitled for

CNSE’s failure to perform under the Agreement. (Agreement at ¶5).

Case 1:16-cv-01506-LEK-CFH

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COUNT I

Filed 12/19/16

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(Breach of Contract- Disclosure of Proprietary & Confidential Information)

25. The allegations of paragraphs 1-24 are restated and re-alleged as though

fully set forth herein.

26. Defendants, as part of the Agreement, undertook not to disclose Acacia’s

confidential and proprietary information except as expressly agreed by Acacia

beforehand.

27. Defendants, as part of the Agreement, undertook to provide Acacia 30

days’ notice of any proposed disclosure or publication involving Acacia’s proprietary and

confidential information.

28. Acacia has fully performed its obligations under the Agreement.

29. Defendants failed to provide Acacia notice of any proposed disclosure of

Acacia’s confidential and proprietary information pursuant to the Agreement.

30. Defendants disclosed Acacia’s proprietary and confidential business

information in violation of the Agreement by circulating the Guide to AIM members and

by presenting the Guide to those in attendance of the AIM Meeting.

31. By failing to notify Acacia of its proposed disclosure and by disclosing

and continuing to disclose Acacia’s confidential and proprietary information, Defendants

have materially breached their obligations under the Agreement.

32. Defendants’ material breaches of the Agreement have proximately caused

Acacia to suffer substantial damages, in an amount to be proven at trial.

Case 1:16-cv-01506-LEK-CFH

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COUNT II

Filed 12/19/16

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(Breach of the Implied Covenant of Good Faith and Fair Dealing)

33. The allegations of paragraphs 1-32 are restated and re-alleged as though

fully set forth herein.

34. Implied in the Agreement was a covenant of good faith and fair dealing,

pursuant to which the Defendants were obliged to refrain from any acts or conduct which

would deny Acacia the receipt and enjoyment of its legitimate expectations flowing from

the Agreement.

35. Defendants violated this covenant by materially breaching the contract by,

among other things, publicly disclosing Acacia’s confidential and proprietary information

owned by Acacia and failing to maintain the confidentiality of such information.

36. Defendants’ material breach has proximately Acacia to suffer substantial

damages, in an amount to be proven at trial.

COUNT III

(Breach of Contract – Failure to Perform)

37. The allegations of paragraphs 1-36 are restated and re-alleged as though

fully set forth herein.

38. Pursuant to the SOW, incorporated into the Agreements as Appendix A,

CNSE was required to deliver six functional wafers to Acacia under Phase II of the

project. (Agreement at ¶1, Appendix A).

39. Pursuant to the SOW, CNSE was required to schedule technical meetings

with Acacia personnel in order to continue progress on the project set forth in the SOW

attached to the Agreement. (Agreement at ¶1).

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40. Acacia has fully performed its obligations under the Agreement.

41. Defendants have failed to deliver the six functional wafers to Acacia

pursuant to the SOW attached to the Agreement. (Agreement at ¶1).

42. Defendants have failed and/or refused to schedule or hold technical

meetings with Acacia personnel in order to continue progress on the project as required

by the Scope of Work attached to the Agreement. (Agreement at ¶11).

43. Said failure and refusal constitutes a material breach of the Agreement,

which breach has proximately caused Acacia to suffer substantial damages, in an amount

to be proven at trial.

COUNT IV

(Injunctive Relief)

44. The allegations of paragraphs 1-43 are restated and re-alleged as though

fully set forth herein.

45. As alleged above, Defendants have publicly disclosed Plaintiff’s

confidential and proprietary information in material breach of the Agreement.

46. In addition to this unauthorized disclosure, the Defendants have failed to

comply with their obligation to return or destroy Plaintiff’s confidential and proprietary

information in possession of CNSE upon termination of the Agreement.

47. As a result of Defendants’ unauthorized public disclosure and continued

retention of Plaintiff’s confidential and proprietary information, Plaintiff has suffered,

and absent injunctive relief will continue to suffer, damage and injuries to its business,

reputation, and good will, for which Plaintiff has no adequate remedy at law.

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48. Defendants’ conduct has caused and will continue to cause irreparable

harm to Plaintiff.

RELIEF REQUESTED

WHEREFORE, Plaintiff requests that this Court:

A. Declare that Defendants’ unauthorized disclosure of Plaintiff’s

confidential and proprietary information, failure to provide six functional wafers pursuant

to the SOW, failure reimburse Acacia for sums advanced on work that Defendants have

not completed, and failure to comply with their obligation to return and/or destroy

confidential Acacia materials in their possession violate the Agreement;

B. Order Defendants to remove all of Plaintiff’s confidential and proprietary

information from their publicly available presentations;

C. Preliminarily and permanently enjoin the Defendants, including all

partners, officers, agents, servants, employees, attorneys, and all those persons and

entities in active concert or participation with them, from disclosing Plaintiff’s

confidential and proprietary information without Plaintiff’s authorization;

D. Direct Defendants to pay Plaintiff its actual damages for Defendant’s

breach of the Agreement, including prejudgment and postjudgment interest thereon;

E. Award Plaintiff its attorneys’ fees and costs under applicable law; and

F. Award Plaintiff such further relief as this Court may deem just and proper.

JURY DEMAND

Plaintiff demands a trial by jury of all issues so triable.

Case 1:16-cv-01506-LEK-CFH

Dated: December 19, 2016

Document 1

Filed 12/19/16

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ACACIA COMMUNICATIONS, INC.

By its attorneys,

s/Lee Palmateer

Lee Palmateer (BRN 509188) LEE PALMATEER LAW OFFICE LLC 90 State Street Suite 700 Albany, New York 12207 Tel: (518) 591-4636 Fax: 1-518-677-1886 Email: lee@palmateerlaw.com

Michael A. Albert malbert@wolfgreenfield.com WOLF, GREENFIELD & SACKS, P.C. 600 Atlantic Avenue Boston, Massachusetts 02210 Tel: (617) 646-8000 Fax: (617) 646-8646 Email: Michael.Albert@WolfGreenfield.com Attorneys for Plaintiff

JS 44

(Rev. 07/16)

Case 1:16-cv-01506-LEK-CFH

Filed 12/19/16

CIVIL COVER SHEET

Document 1-1

Page 1 of 2

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the

purpose of initiating the civil docket sheet.

(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a)

PLAINTIFFS

DEFENDANTS

 

ACACIA COMMUNICATIONS, INC.,

 

THE RESEARCH FOUNDATION FOR THE STATE UNIVERSITY OF NEW YORK,SUNY POLYTECHNIC INSTITUTE, and COLLEGE OF NANOSCALE SCIENCE AND ENGINEERING

(b)

County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

Albany

 
 

(EXCEPT IN U.S. PLAINTIFF CASES)

   

(IN U.S. PLAINTIFF CASES ONLY)

 
 

NOTE:

IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

 

(c)

Attorneys (Firm Name, Address, and Telephone Number)

 

Attorneys (If Known)

 

LEE PALMATEER LAW OFFICE LLC, 90 State Street, Suite 700 Albany, New York 12207, Tel: (518) 591-4636, Lee Palmateer

   

II.

BASIS OF JURISDICTION (Place an “X” in One Box Only)

III.

CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

 

(For Diversity Cases Only) PTF

 

and One Box for Defendant)

 

1

U.S. Government

3

Federal Question (U.S. Government Not a Party)

DEF

PTF

DEF

 

Plaintiff

 

Citizen of This State

1

1

Incorporated or Principal Place of Business In This State

4

’

4

2

U.S. Government

’

4

Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

2

2

Incorporated and Principal Place of Business In Another State

’

5

5

Defendant

   
   

Citizen or Subject of a Foreign Country

3

3

Foreign Nation

6

6

IV.

NATURE OF SUIT (Place an “X” in One Box Only)

 

CONTRACT

 

TORTS

   

FORFEITURE/PENALTY

   

BANKRUPTCY

   

OTHER STATUTES

   

110 Insurance

PERSONAL INJURY

PERSONAL INJURY

625 Drug Related Seizure of Property 21 USC 881

 

422 Appeal 28 USC 158

 

375 False Claims Act

 

120 Marine

310 Airplane

365 Personal Injury -

423 Withdrawal

376 Qui Tam (31 USC

130 Miller Act

315 Airplane Product

Product Liability

690 Other

28

USC 157

 

3729(a))

140 Negotiable Instrument

Liability

367 Health Care/

   

400 State Reapportionment

 

150 Recovery of Overpayment & Enforcement of Judgment

151 Medicare Act

320 Assault, Libel & Slander

330 Federal Employers’

 

Pharmaceutical Personal Injury

Product Liability 368 Asbestos Personal

   

PROPERTY RIGHTS

 

410 Antitrust

 

820 Copyrights

830 Patent

 

430 Banks and Banking

450 Commerce

 

152 Recovery of Defaulted Student Loans (Excludes Veterans)

Liability

840 Trademark

460 Deportation

 

340 Marine

Injury Product

 

470 Racketeer Influenced and Corrupt Organizations

 

345 Marine Product

Liability PERSONAL PROPERTY

 

LABOR

 

SOCIAL SECURITY

 

153 Recovery of Overpayment of Veteran’s Benefits

Liability

710 Fair Labor Standards Act

 

861 HIA (1395ff)

 

480 Consumer Credit

 

350 Motor Vehicle

370 Other Fraud

862 Black Lung (923)

490 Cable/Sat TV

 

’

160 Stockholders’ Suits 190 Other Contract

355 Motor Vehicle Product Liability

 

371 Truth in Lending 380 Other Personal

 

720 Labor/Management Relations

863 DIWC/DIWW (405(g))

850 Securities/Commodities/

 

864 SSID Title XVI

Exchange

 

195 Contract Product Liability

360 Other Personal

Property Damage

740 Railway Labor Act

865 RSI (405(g))

890 Other Statutory Actions

 

196 Franchise

Injury

385 Property Damage

751 Family and Medical Leave Act

 

891 Agricultural Acts

 

362 Personal Injury - Medical Malpractice

 

Product Liability

893 Environmental Matters

 

790 Other Labor Litigation

895 Freedom of Information Act

 

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS

791 Employee Retirement Income Security Act

 

FEDERAL TAX SUITS

 

210 Land Condemnation

440 Other Civil Rights

Habeas Corpus:

870 Taxes (U.S. Plaintiff or Defendant)

 

896 Arbitration

 

220 Foreclosure

441 Voting

463 Alien Detainee

 

899 Administrative Procedure

 

230 Rent Lease & Ejectment

442 Employment

510 Motions to Vacate

871 IRS—Third Party

 

Act/Review or Appeal of

240 Torts to Land

443 Housing/

Sentence

26

USC 7609

Agency Decision

 

245 Tort Product Liability

Accommodations

530 General

 

950 Constitutionality of State Statutes

290 All Other Real Property

445 Amer. w/Disabilities - Employment

535 Death Penalty Other:

   

IMMIGRATION

462 Naturalization Application

 

446 Amer. w/Disabilities - Other

540 Mandamus & Other

465 Other Immigration

 

550 Civil Rights

 

Actions

448 Education

555 Prison Condition

 

560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)

’ 1
’ 1

Original

2

Removed from

3

Remanded from

4 Reinstated or

Proceeding

State Court

Appellate Court

Reopened

5 Transferred from Another District

(specify)

6

Multidistrict

Litigation -

Transfer

8 Multidistrict Litigation - Direct File

 

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

28 U.S.C. § 1332

VI.

CAUSE OF ACTION

Brief description of cause:

Breach of Contract; Breach of the Implied Covenant of Good Faith and Fair Dealing; Injunctive Relief

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P.

DEMAND $

CHECK YES only if demanded in complaint:

JURY DEMAND:

D $ CHECK YES only if demanded in complaint: JURY DEMAND: ’ Yes ’ No VIII.

Yes

No

VIII. RELATED CASE(S) IF ANY

(See instructions):

JUDGE

DOCKET NUMBER

DATE

12/19/2016

SIGNATURE OF ATTORNEY OF RECORD

s/Lee Palmateer

FOR OFFICE USE ONLY

RECEIPT #

0206-3879366

AMOUNT

$400.00

APPLYING IFP

JUDGE

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Case No. 1:16-CV-1506

LEK

MAG. JUDGE

CFH

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JS 44 Reverse (Rev. 07/16)

Case 1:16-cv-01506-LEK-CFH

Document 1-1

Filed 12/19/16

Page 2 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

(b)

County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c)

Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".

II.

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)

III.

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV.

Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V.

Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue.

VI.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII.

Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII.

Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.