DirecTV Latin America, LLC v. PARK 610, LLC, No. 08 Civ. 3987(VM).
| Court | United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York |
| Writing for the Court | VICTOR MARRERO |
| Citation | 691 F. Supp.2d 405 |
| Parties | DIRECTV LATIN AMERICA, LLC, Plaintiff, v. PARK 610, LLC, et al., Defendants. |
| Docket Number | No. 08 Civ. 3987(VM). |
| Decision Date | 26 January 2010 |
691 F. Supp.2d 405
DIRECTV LATIN AMERICA, LLC, Plaintiff,
v.
PARK 610, LLC, et al., Defendants.
No. 08 Civ. 3987(VM).
United States District Court, S.D. New York.
January 26, 2010.
Steven Glen Mintz, Terence William McCormick, Mintz & Gold LLP, Nyc, NY, for Plaintiff.
Vitaly David Rivkin, Jooyun Kim, Fox Horan & Camerini LLP, David Clifford Burger, Robinson Brog Leinwand Greene Genovese & Gluck PC, New York, NY, for Defendants.
DECISION AND ORDER
VICTOR MARRERO, District Judge.
I. BACKGROUND
Plaintiff DIRECTV Latin America, LLC ("DIRECTV") brought this action alleging, among other claims, breach of fiduciary duty and fraud against defendants Park 610, LLC ("Park 610"), Carlos Vicente Avila, ("Avila"), Roberto Timistit ("Timistit"), Carlos Pratola ("Pratola") and Diego Clemente ("Clemente"). The complaint arises from a joint venture between DIRECTV and Avila that contained a New York forum selection clause. The claims against Park 610, Avila and Timistit were dismissed pursuant to a settlement agreement. Now before the Court is the motion of Pratola and Clemente to dismiss the complaint on the grounds of lack of personal jurisdiction over them and forum non conveniens.
By Order dated November 23, 2009, Magistrate Judge Gabriel Gorenstein, to whom this matter had been referred for supervision of pretrial proceedings, issued a Report and Recommendation the ("Report"), a copy of which is attached and incorporated herein, recommending that the claims against Pratola and Clemente be dismissed for lack of personal jurisdiction. The Report further noted that even if personal jurisdiction existed, the action could properly be dismissed by application of the forum non conveniens doctrine. DIRECTV filed timely objections to the Report challenging its findings and conclusions.
II. STANDARD OF REVIEW
A district court evaluating a Magistrate Judge's report may adopt those portions of the report to which no "specific, written objection" is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law. Fed.R.Civ.P. 72(b); see also Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y. 1997). "Where a party makes a `specific written objection ... after being served with a copy of the magistrate judge's recommended disposition,' however, the district court is required to make a de novo determination regarding those parts of the report." Cespedes v. Coughlin, 956 F.Supp. 454, 463 (S.D.N.Y.1997) (citing United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)); Fed.R.Civ.P. 72(b). The Court is not required to review any portion of a Magistrate Judge's report that is not the subject of an objection. See Thomas, 474 U.S. at 149, 106 S.Ct. 466. A district judge may accept, set aside, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge as to such matters. See Fed.R.Civ.P. 72(b); DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994).
III. DISCUSSION
Having conducted a de novo review of the full factual record in this litigation, including the pleadings, and the parties' respective papers submitted in connection with the underlying motion and in this proceeding, as well as the Report and applicable legal authorities, the Court concludes that the findings, reasoning, and legal support for the recommendations made in the Report are warranted. Accordingly, for substantially the reasons set forth in the Report the Court adopts the Report's factual and legal analyses and determinations, as well as its substantive recommendations, in their entirety as the Court's ruling on the motion of Pratola and Clemente to dismiss DIRECTV'S complaint in this action for lack of personal jurisdiction, or, in the alternative, by application of the doctrine of forum non conveniens.
IV. ORDER
For the reasons discussed above, it is hereby
ORDERED that the Report and Recommendation of Magistrate Judge Gabriel Gorenstein dated November 23, 2009 Docket No. 164 is adopted in its entirety, and the objection of plaintiff (Docket No. 168), is DENIED.
The Clerk of Court is directed to withdraw any pending motions and to close this case.
SO ORDERED.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge.
Plaintiff DirecTV Latin America, LLC ("DirecTV") has sued Park 610, LLC ("Park 610"), Carlos Vicente Avila, Roberto Timistit, Carlos Pratola, and Diego Clemente. DirecTV alleges the individual defendants—who include an employee of DirecTV—secretly conspired to illegally share in the profit of a joint venture between DirecTV and Park 610. See Second Amended Complaint, filed June 20, 2009 (Docket # 138) ¶¶ 1-2 ("2d Am. Compl."). DirecTV's second amended complaint alleges
Park 610, Avila, and Timistit ("Park 610 defendants") now move for a judgment dismissing the second amended complaint as to them pursuant to Fed.R.Civ.P. 12(b)(6); Pratola and Clemente move for a judgment dismissing the second amended complaint as to them pursuant to Fed. R.Civ.P. 12(b)(1), (2), (3), and (6) and the doctrine of forum non conveniens, or—in the alternative—for a stay pending the completion of proceedings in Argentina.
I. BACKGROUND
A. Facts
The following facts are alleged in DirecTV's second amended complaint and are assumed to be true for purposes of these motions.
1. The Venture
DirecTV provides pay television services in Latin America and, through its subsidiaries, has approximately five million subscribers. 2d Am. Compl. ¶ 7. Before his termination, Pratola was the general manager and chief executive officer of DirecTV Argentina, S.A., which is a subsidiary of DirecTV. Id. ¶¶ 1, 15. In April 2006, Pratola recommended to his superiors at DirecTV that adding a golf programming channel would improve the company's subscriber base. Id. ¶¶ 1, 20. At Pratola's urging, DirecTV entered into negotiations with Avila, an individual with a long history of developing sports programming in Argentina, to create a joint venture that would develop and distribute such a channel in Latin America. Id. ¶¶ 21, 29. Pratola took a lead role in negotiating a memorandum of understanding and the subsequent Joint Venture Agreement between DirecTV and Avila. Id. ¶ 23. Under the agreement, the parties' joint venture was to be called Latin American Sports, LLC ("LAS"), in which Park 610 would have a 55% membership interest and DirecTV would have a 45% membership interest. Id. ¶¶ 1, 25.
Under the agreement, DirecTV was obligated to provide up to $7 million in funding to LAS. Id. ¶ 26. Between 2006 and 2008, DirecTV provided LAS with capital contributions of $5,700,000 and loans of an additional $2,000,000. Id. ¶¶ 26-27. Avila was to act as the chairman of LAS. Id. ¶ 28. Because of Avila's experience in developing sports programming, DirecTV made it clear that it was "critical" that Avila not transfer any of his ownership interest in LAS without DirecTV's prior written agreement. Id. ¶ 29. Indeed, a provision in the joint venture agreement made a change in control a default under the contract. Id. ¶ 30. Upon default, the agreement had a "call option" which provided that a defaulting member could be forced to sell its membership interest to the non-defaulting member for book value. Id. ¶ 35.
2. Park 610
Park 610 is a limited liability corporation that was formed for the purpose of being the entity through which Avila controlled his interest in LAS. Id. ¶ 40. Park 610's two members are Tumely S.A. ("Tumely") and Loraine S.A. ("Loraine"). Id. ¶ 41. In due diligence meetings during the summer of 2006, Avila represented that he was the sole owner of Tumely and Loraine, and falsely stated that he chose to own Park 610 in this manner so that he could more easily conduct intra-family transfers in the
On or about September 18, 2006, Avila and DirecTV closed their transaction by executing the Joint Venture Agreement that formed LAS. Id. ¶ 49; see Limited Liability Company Agreement of Latin American Sports, LLC Among Latin American Sports, LLC, DirecTV Latin America, LLC, and Park 610, LLC (annexed as Ex. A to Declaration of Carlos V. Avila in Support of Defendants Park 610, LLC, Carlos V. Avila and Roberto Timistit's Motion to Dismiss the Second Amended Complaint, filed June 8, 2009 (Docket # 140)) ("Joint Venture Agreement").
3. The Side Deal
Before the closing, in April 2006, Pratola had formed Leraman, which would eventually...
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...also required in order to permit jurisdiction over the defendant to be exercised. See, e.g., DirecTV Latin Am., LLC v. Park 610, LLC, 691 F.Supp.2d 405, 423 (S.D.N.Y.2010). Or it may be that the term means that a transaction of business in New York will not suffice unless the plaintiff's ca......
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...261 F.3d 196, 208 (2d Cir.2001) ("Whitaker ")) (brackets and omission in original)).27 DirecTV Latin America, LLC v. Park 610, LLC, 691 F.Supp.2d 405, 417 (S.D.N.Y.2010) ("DirecTV Latin America ") (citing DiStefano, 286 F.2d at 84 ; Whitaker, 261 F.3d at 208 ). See also Forties B, 725 F.Sup......
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Ddr Constr. Serv. Inc. v. Siemens Indus. Inc., No. 09 CIV. 09605 RJH.
...language as broadly as possible, reads the duty alleged as sounding in fiduciary duty. See DirecTV Latin America, LLC v. Park 610, LLC, 691 F.Supp.2d 405, 439 (S.D.N.Y.2010) (fiduciary duty owed between partners or LLC members encompassing traditional duties of loyalty and of care ). Howeve......
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Gilbert v. Indeed, Inc., 20-cv-3826 (LJL)
..."purpose of the calls is for the defendant to actively participate in business in New York." DirecTV Latin Am., LLC v. Park 610, LLC , 691 F. Supp. 2d 405, 420 (S.D.N.Y. 2010) ; see Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez , 171 F.3d 779, 788 (2d Cir. 1999).The mere invitation ......
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Licci v. Lebanese Canadian Bank, SAL, Docket No. 10–1306–cv.
...also required in order to permit jurisdiction over the defendant to be exercised. See, e.g., DirecTV Latin Am., LLC v. Park 610, LLC, 691 F.Supp.2d 405, 423 (S.D.N.Y.2010). Or it may be that the term means that a transaction of business in New York will not suffice unless the plaintiff's ca......
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Weisfelner v. Blavatnik (In re Lyondell Chem. Co.), No. 09–10023 (REG) (Jointly Administered)
...261 F.3d 196, 208 (2d Cir.2001) ("Whitaker ")) (brackets and omission in original)).27 DirecTV Latin America, LLC v. Park 610, LLC, 691 F.Supp.2d 405, 417 (S.D.N.Y.2010) ("DirecTV Latin America ") (citing DiStefano, 286 F.2d at 84 ; Whitaker, 261 F.3d at 208 ). See also Forties B, 725 F.Sup......
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Ddr Constr. Serv. Inc. v. Siemens Indus. Inc., No. 09 CIV. 09605 RJH.
...language as broadly as possible, reads the duty alleged as sounding in fiduciary duty. See DirecTV Latin America, LLC v. Park 610, LLC, 691 F.Supp.2d 405, 439 (S.D.N.Y.2010) (fiduciary duty owed between partners or LLC members encompassing traditional duties of loyalty and of care ). Howeve......
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Gilbert v. Indeed, Inc., 20-cv-3826 (LJL)
..."purpose of the calls is for the defendant to actively participate in business in New York." DirecTV Latin Am., LLC v. Park 610, LLC , 691 F. Supp. 2d 405, 420 (S.D.N.Y. 2010) ; see Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez , 171 F.3d 779, 788 (2d Cir. 1999).The mere invitation ......