Exhibit Icons, LLC v. Xp Companies, LLC
| Decision Date | 26 March 2009 |
| Docket Number | No. 07-80824-CIV.,07-80824-CIV. |
| Citation | 609 F.Supp.2d 1282 |
| Parties | EXHIBIT ICONS, LLC et al, Plaintiffs, v. XP COMPANIES, LLC, et al, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Mark Robert Vogel, Mark R. Vogel, P.A., Hollywood, FL, Steven Frederick Samilow, Weston, FL, for Plaintiffs.
Steven Neil Lippman, Rothstein Rosenfeldt Adler, Fort Lauderdale, FL, Chad M. McShane, Brega & Winters, Denver, CO, for Defendants.
This cause is before the Court upon Defendant XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss the Amended Complaint or, in the Alternative, Transfer of Venue (DE 19); Plaintiffs Exhibit Icons and Russell Etling Company's Motion for Leave to File a Brief Surreply to Defendants' Reply Memorandum (DE 88); Plaintiffs Exhibit Icons and Russell Etling Company's Request for Oral Argument on Defendants' Motion to Dismiss for Lack of Jurisdiction (DE 92); Defendant XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction, or, in the Alternative, Change of Venue (DE 99); Plaintiffs Exhibit Icons and Russell Etling Company's Request for Oral Argument on Defendants' XP Companies, LLC, XP Entertainment, LLC and William Wall III's Motion to Dismiss Verified Second Amended Complaint (DE 112); Defendant XP Apparel, LLC's Motion, and Joinder in the Defendants' Motion, to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction or, in the Alternative, Change of Venue (DE 115); Plaintiffs Exhibit Icons and Russell Etling Company's Request for a Hearing on Defendant XP Apparel, LLC's Motion to Dismiss for Lack of Jurisdiction (DE 119); Plaintiffs Exhibit Icons and Russell Etling Company's Motion to Strike Affirmative Defenses and Portions of Defendants' Answer (DE 126) and Plaintiffs Exhibit Icons and Russell Etling Company's Motion to Strike Affirmative Defenses and Portions of Defendants' Answer (DE 132).
According to the Second Amended Complaint ("SAC"), Plaintiff Exhibit Icons ("EI") is a Florida limited liability company and Plaintiff Russell Etling Company ("Etling") is a Florida corporation. (SAC ¶ ¶ 2-3.) Defendants XP Companies, LLC ("XP Companies"), XP Entertainment, LLC ("XP Entertainment") and XP Apparel, LLC ("XP Apparel") are Colorado limited liability companies. Defendant William Wall resides in Colorado. (SAC ¶ ¶ 4-7.) The eight-count SAC alleges: (1) breach of contract against XP Companies, XP Entertainment and Wall (count one); (2) breach of the duty of good faith and fair dealing against XP Companies, XP Entertainment and Wall (count two); (3) declaratory relief against XP Companies, XP Entertainment and Wall (count three); (4) money owed against XP Companies, XP Entertainment and Wall (count four); (5) intended third-party beneficiary breach of contract against XP Companies, XP Entertainment and Wall (count five); (6) fraud in the inducement against XP Apparel and Wall (count six); (7) negligent misrepresentation in the inducement against XP Apparel and Wall (count seven) and (8) promissory estoppel against XP Apparel (count eight).
In 2003, Etling entered into a long-term licensing agreement to produce a traveling exhibition of the Napoleon Collection, a collection of personal items and memorabilia associated with Napolean Bonaparte. (SAC ¶ ¶ 12-13.) Etling's responsibilities included providing supporting work to the Collection, including design, development and marketing work to be performed in Florida. (SAC ¶ 14.) In March of 2006, Etling and EI entered into an agreement in Florida whereby EI was hired as Etling's agent to promote and arrange the tour of the Collection. (SAC ¶ 17.)
Thereafter, EI entered into an agreement with XP Companies for XP Companies to be the exclusive tour operator of the Napoleon Tour, beginning June 1, 2007 and ending April 30, 2012. During the first year of the agreement, XP Companies was to pay EI one million dollars. XP Companies was referred to in the agreement as XP Exhibits and Mr. Wall signed the agreement on behalf of XP Exhibits. (Sept. 8, 2006 Contract, attached to DE 1.) Plaintiffs allege that Defendants XP Companies, XP Entertainment and Mr. Wall breached their contractual obligations as Napoleon tour operator and failed to pay amounts due under the contract. (SAC ¶ ¶ 50-73.) In addition, Plaintiffs allege that XP Apparel and Mr. Wall represented to Plaintiffs that XP Apparel and the other corporate defendants were one and the same entity in order to induce them to enter into the aforementioned contract. (SAC ¶ ¶ 84-97.)
Defendants XP Companies, XP Entertainment and Wall moved to dismiss the first amended complaint for lack of personal jurisdiction on December 4, 2007 (DE 19). On March 3, 2008, the Court granted Plaintiffs' motion for leave to take jurisdictional discovery and permitted the parties to file amended responses/replies to Defendants' motion to dismiss (DE 40). Defendants XP Companies, XP Entertainment, Wall and XP Apparel now argue that Plaintiffs cannot establish either specific or general jurisdiction over them.
The Court will examine the evidence garnered by the parties with respect to the motion to dismiss for lack of personal jurisdiction.
In early 2006, Gary Stern, the president of EI, had a business discussion with Zvi Harpaz, the operator of a marketing and placement services in Boca Raton, Florida, about the Napoleon Collection. (Harpaz Aff. ¶ 2; Stern Aff. ¶ 2, attached to DE 30 and 31.) Mr. Harpaz then discussed the Napoleon Collection with Jeremy Fey, who worked for XP Apparel, and Jeremy Fey told Mr. Harpaz that he thought his company would be interested in obtaining the touring rights and that he would discuss it with Mr. Wall, the president of "XP."1 Subsequently, Jeremy Fey telephoned Mr. Harpaz and said that "they had a strong interest" in obtaining the touring rights and a contract was signed by Mr. Wall on behalf of XP Apparel to secure Mr. Harpaz's commission. Jeremy Fey instructed Mr. Harpaz to have Mr. Stern call Mr. Wall. (Harpaz Aff. ¶ ¶ 4-8; Stern Aff. ¶ 3.)
Mr. Stern then called Mr. Wall and was told to call Jeremy Fey who was his "point man" with respect to the Napoleon Collection. (Stern Aff. ¶ 4.) When Mr. Stern called Jeremy Fey, he stated that Mr. Wall and XP were very interested in purchasing the rights to market the Napoleon Collection. On April 12, 2006, Jeremy Fey emailed Mr. Stern that Mr. Wall wanted Mr. Stern to make the offer. (Stern Aff. ¶ 5.)
Mr. Stern and Jeremy Fey had "hundreds of follow-up telephone conversations" and communicated nearly every day by telephone, email and facsimile regarding the terms for "defendants"2 to obtain the tour rights to the Napoleon Collection. Jeremy Fey called Mr. Stern in Florida at least 188 times from April 13, 2006 through June 28, 2006. (Stern Aff. ¶ 6.) During all of the telephone calls with Jeremy Fey, Jeremy Fey stated that "defendants" had a keen interest in obtaining the tour rights to the Napoleon Collection. (Stern Aff. ¶ 7.) In addition, Jeremy Fey spoke to Mr. Stern about his famous father, promoter Barry Fey, "who has a world-wide reputation for working with such groups as The Who, the Rolling Stones," and emphasized that Barry Fey was a resource that could be used in marketing the exhibit. (SAC ¶ ¶ 24, 27.)
In late March or early April of 2006, Mr. Stern received a draft contract from Jeremy Fey, sent to him in Florida via email. In June and August of 2006, Mr. Stern met with Jeremy Fey and Mr. Wall in Colorado and then again with Jeremy Fey in Georgia. Final contract terms were agreed to in principle. (Stern Aff. ¶ 7.)
In September of 2006, EI entered into the contract with XP Companies, LLC, which was referred to in the contract as "XP Exhibits" and "XP Sports and Entertainment." The contract provided that XP Companies would pay EI $75,000.00. (September 8, 2006 Contract, DE 1.) According to the SAC, XP Apparel and Wall induced EI to enter into the contract with these entities by representing these entities as divisions of a large conglomerate that were legally one and the same. (SAC ¶ 1.) XP Apparel and Wall sought to shift liability to XP Companies, LLC, a non-operational and defunct entity, in order to shield XP Apparel from liability under the contract. (SAC ¶ ¶ 2, 75.)
In March 2007, Mr. Stern met with Jeremy Fey and Mr. Wall in Denver. They had decided to pursue promotion of the Napoleon Collection in exhibit space rented in Florida. Mr. Stern was asked to suggest sites and Plaintiffs then explored sites in Miami, Fort Lauderdale and West Palm Beach. On March 20, 2007, Jeremy Fey sent Russell Etling, Etling's President, an email with a budget and numerous questions about the Miami venue. (Stern Aff. ¶ 11.) Jeremy Fey told Mr. Stern that "defendants" would lease three storefronts in West Palm Beach and sent him a copy of an email he sent to a representative of CityPlace in West Palm Beach. Jeremy Fey also sent Plaintiffs a schedule which contemplated him living in Florida for at least 30 consecutive weeks while he was managing the exhibit. (Stern Aff. ¶ 12.) Jeremy Fey also told Mr. Stern that Mr. Wall was his "best friend" and that Mr. Wall would be traveling to Florida to confer about this transaction. (Stern Aff. ¶ 13.)
William Wall, the president of XP Companies and XP Entertainment, states that neither XP Companies nor XP Entertainment have any offices, real property or bank accounts in the state of Florida. No representative of XP Companies or XP Entertainment has traveled to Florida for any business dealings with EI. Mr. Wall first met Mr. Stern in Colorado and the Agreement between EI and XP Companies was signed there. (DE 8-2.) Jeremy Fey first met...
To continue reading
Request your trial
-
Lgt Enterprises, LLC v. Hoffman
...fact that Nebraska is Romeo's state of incorporation." Romeo, 2009 WL 764557 at *5. Contrast Exhibit Icons, LLC v. XP Cos., LLC, 609 F.Supp.2d 1282, 1298-99, 2009 WL 806794, *11 (S.D.Fla.2009) (Florida court had specific jurisdiction over Colorado defendants XP Apparel and Mr. Wall with reg......
-
Tarasewicz v. Royal Caribbean Cruises Ltd.
...in any litigation arising out of any transaction or occurrence taking place anywhere in the world." Exhibit Icons, LLC v. XP Companies, LLC, 609 F. Supp. 2d 1282, 1295 (S.D. Fla. 2009).Carmouche v. Carnival Corp., 36 F. Supp. 3d 1335, 1341 (S.D. Fla. 2014) aff'd sub nom. Carmouche v. Tambor......
-
Molex Co. v. Andress
...hundred occasions through telephone, email, facsimile, and regular mail to discuss and place orders); Exhibit Icons, LLC v. XP Companies, LLC, 609 F.Supp.2d 1282, 1292–94 (S.D.Fla.2009) (holding that numerous electronic communications, including 188 telephone calls, directed by the defendan......
-
Aronson v. Celebrity Cruises, Inc., Case No. 12–CV–20129.
...in any litigation arising out of any transaction or occurrence taking place anywhere in the world.” Exhibit Icons, LLC v. XP Cos., LLC, 609 F.Supp.2d 1282, 1295 (S.D.Fla.2009) (internal citations omitted). In other words, a defendant's activities must be “so ‘continuous and systematic’ as t......
-
Business litigation
...any other contact with the forum, is insufficient to satisfy the due process requirement. [ Exhibit Icons, LLC v. XP Companies, LLC , 609 F. Supp. 2d 1282, 1292 (S. D. Fla. 2009).] [§§4:85-4:89 Reserved] D. Identifying the Business §4:90 Fictitious Names The Florida Fictitious Name Act requ......