Cableview Commc'ns of Jacksonville, Inc. v. Time Warner Cable Se. LLC
| Decision Date | 27 March 2014 |
| Docket Number | Case No. 3:13-cv-306-J-34JRK |
| Parties | CABLEVIEW COMMUNICATIONS OF JACKSONVILLE, INC., a Florida corporation, Plaintiff, v. TIME WARNER CABLE SOUTHEAST LLC a/k/a TIME WARNER CABLE ENTERPRISES LLC f/k/a TIME WARNER ENTERTAINMENT COMPANY, L.P. a/k/a TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP d/b/a TIME WARNER CABLE, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
THIS CAUSE is before the Court on Defendant's Motion to Dismiss and Incorporated Memorandum of Law (Doc. No. 14; Motion to Dismiss) as well as Defendant's Motion to Transfer Venue to the Middle District of North Carolina and Incorporated Memorandum of Law (Doc. No. 15; Motion to Transfer) (collectively "Motions"), both filed on May 20, 2013. Plaintiff filed responses opposing both Motions on June 17, 2013. See Plaintiff's Response in Opposition (with Memorandum of Law) to Defendant's Motion to Dismiss (Doc. No. 19; Response to Motion to Dismiss); Plaintiff's Response in Opposition (with Memorandum of Law) to Defendant's Motion to Transfer Venue (Doc. No. 20; Response to Motion to Transfer). Both Motions are fully briefed and ripe for review.
On March 21, 2013, Plaintiff Cableview Communications of Jacksonville, Inc. ("Cableview") initiated the instant action, filing its Complaint against Defendant Time Warner Cable Southeast LLC ("Time Warner"). (Doc. No. 1; Complaint). This action revolves around Time Warner's methods of obtaining payment for a disputed debt that arose out of a workplace injury. On July 19, 2004, Cableview and Time Warner entered into a written agreement whereby Cableview agreed to provide cable television installation services for Time Warner in the Greensboro, North Carolina area. Complaint at ¶¶4-5; see also Exhibit A to Complaint (Doc. No. 1-1; Installation Agreement). Almost four years into the agreement, one of Cableview's employees, James McClarty, was injured when the utility pole he was working on collapsed while he was stringing a cable television line for Time Warner. Complaint at ¶¶6-7. Duke Energy Carolinas, LLC (Duke) owned the utility pole and allowed Time Warner access to it. Id. at ¶10. After settling a worker's compensation claim against Cableview through Cableview's worker's compensation insurance carrier, McClarty filed suit against Duke in the General Court of Justice, Superior Court, Division for Durham County, North Carolina (McClarty Action). Id. at ¶¶7-9. Duke tendered the suit to Time Warner for defense and indemnification. Id. at ¶11.
Time Warner accepted defense of the McClarty Action from Duke, and in turn, sought defense and indemnification from Cableview. Id. at ¶11-12. Cableview's general liabilitycarrier reviewed the claim and, on October 28, 2010, notified both Cableview and Time Warner that the McClarty Action was not covered under Cableview's policy as the action "did not fall within Cableview's contractual indemnification obligations to Time Warner." Id. at ¶14. As a result, Time Warner defended Duke in the McClarty Action, ultimately negotiating a settlement on Duke's behalf without any further communication with Cableview. Id. at ¶15.
In late 2011, the officers of Cableview began negotiating with FTS USA, LLC (FTS) for the sale of Cableview and its affiliates, which would include the sale of the installation agreements with cable providers such as Time Warner. Id. at ¶¶18, 22. As a condition of the Installation Agreement, however, Time Warner had to consent in writing to any assignment of the duties or obligations under the agreement. Id. at ¶20; Installation Agreement at ¶21. Accordingly, in early 2012, both FTS and Cableview notified Time Warner of FTS's potential acquisition of Cableview, and Time Warner gave its verbal consent to the required assignment. Id. at ¶20.
Not having resolved its dispute with Cableview regarding the McClarity Action, on February 17, 2012, Time Warner applied for an extension of time to file suit against Cableview in North Carolina.2 Id. at ¶25. Time Warner faxed a copy the application to Cableview on the same day. Id. Following receipt of the application, Cableview notified FTS of the potential North Carolina lawsuit against it, and amended the Asset PurchaseAgreement to exclude liability for this claim. Id. at ¶¶25, 28. One day before the sale of Cableview to FTS was scheduled to close, Time Warner sent FTS a letter demanding that, as a condition to Time Warner's consent to the assignment of the Installation Agreement, FTS must assume the alleged obligation to indemnify Time Warner for the costs in settling the McClarty Action. Id. at ¶¶29-30.
After frenzied discussions between Time Warner, FTS, and Cableview, Time Warner ultimately insisted, as a condition of a written assignment, prior to the close of the Cableview-FTS transaction, that Cableview acquiesce to the addition of language to the Asset Purchase Agreement that would obligate FTS to withhold and remit the sum of $515,000 to Time Warner
from the amount FTS was to pay Cableview. Id. at ¶32. Although Time Warner allegedly settled the McClarty Action for approximately $350,000, and originally requested this amount, it later increased the amount to $515,000, without justification or explanation. Complaint at ¶33 n.2. Cableview also alleges that Time Warner again increased the amount of money to be paid to over $600,000. Id. at ¶36. In the end, Time Warner received $560,000 of the proceeds from FTS's purchase of Cableview. Id. at ¶39.
Based on Time Warner's involvement in this transaction, Cableview filed the instant four-count Complaint. In Count One, Cableview alleges that Time Warner materially breached the Installation Agreement when it failed to provide Cableview with an opportunity to participate in the settlement negotiations in the McClarty Action and when it unreasonably withheld its consent to the assignment of the Installation Agreement. See Complaint at 9-10. Similarly, Cableview contends in Count Two that Time Warner's actions in preventing the closing, and forcing Cableview to pay Time Warner, constitute tortious interference with a business relationship. See id. at 10. In Count Three, Cableview alleges that Time Warnerviolated Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) by using its position in the cable television industry to gain financially from a contract to which it was not a party. See id. at 10. Finally, in Count Four, Cableview alleges that Time Warner negligently misrepresented that it would agree to FTS's purchase of Cableview. See id. at 11-12.
In the instant Motion to Dismiss, Time Warner contends that, as a foreign entity that does no business here, it is not subject to personal jurisdiction in the State of Florida, and thus, this Court must dismiss the Complaint. See Motion to Dismiss at 9-15. In support of this contention, Time Warner provides the Declaration of William C. Wesselman (Doc. No. 14-1; Wesselman Decl.). Alternatively, Time Warner argues that the Complaint fails to state causes of action for tortious interference with a business relationship and negligent misrepresentation, and that Cableview does not have standing to sue for a violation of FDUTPA.See id. at 21-25. As further grounds for dismissal, Time Warner contends that Cableview assigned all of its claims to FTS, and therefore, does not have standing, has already agreed to settle its claims in a valid and enforceable settlement agreement with Time Warner, and made a voluntary payment to Time Warner barring its claims.See id. at 16-21.
In the Motion to Transfer, Time Warner seeks the transfer of this case from this Court to the Middle District of North Carolina arguing that the Installation Agreement contains a valid and enforceable forum selection clause, all of the events and conduct in the Complaint occurred in North Carolina, and a majority of the relevant documents and witnesses are located in North Carolina. See generally Motion to Transfer. Cableview opposes bothMotions, arguing that Time Warner is subject to the jurisdiction of this Court because it conducted business here through its contact with Cableview, and due to its tortious conduct directed at and causing injury in Florida. See Response to Motion to Dismiss at 3-5. Further, Cableview argues that Time Warner's transfer arguments fail because the forum selection clause in the Installation Agreement is permissive, events giving rise to the Complaint occurred in Florida, and the inconvenience to Time Warner is not sufficient to warrant a transfer of venue. See Response to Motion to Transfer at 3-8.
Although Time Warner has raised several threshold issues as grounds for dismissal of the Complaint, the Court first addresses Time Warner's standing argument. Time Warner argues that Cableview lacks standing to assert any claims against it because Cableview assigned and transferred all assets to FTS, which would include any and all potential claims against Time Warner. See Motion at 16. A legal assignment transfers all the interests and rights to the thing assigned, and permits the assignee to stand in the assignor's shoes and "enforce the contract against the original obligor or in his own name." Slip-N-Slide Records, Inc. v. TVT Records, LLC, No. 05-CIV-21113, 2007 WL 3232270, at *4 (S.D. Fla. Oct. 31, 2007); see also Hansen v. Wheaton Van Lines, Inc., 486 F. Supp. 2d 1339, 1346 (S.D. Fla. 2006). "Because a legal assignment vests in the assignee the right to enforce the contract, an assignor normally retains no rights to enforce the contract after it has been assigned." Slip-N-Slide Records, Inc., 2007 WL 3232270, at *4; see also Hansen, 486 F. Supp. 2d at 1346. The Court interprets an assignment as it would any other contract under Florida law,giving effect to the contract's clear and unambiguous terms. See Slip-n-Slide Records, Inc., 2007 WL 3232270, at *3.
Quoting the Asset Purchase Agreement, Cableview...
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