Fica Frio, Ltd. v. Seinfeld, 19 Civ. 1032 (VM)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtVICTOR MARRERO, United States District Judge.
Citation434 F.Supp.3d 80
Parties FICA FRIO, LTD., Plaintiff, v. Jerry SEINFELD, Defendant. Jerry Seinfeld, Third-Party Plaintiff, v. European Collectibles, Inc., Third-Party Defendant.
Docket Number19 Civ. 1032 (VM)
Decision Date21 January 2020

434 F.Supp.3d 80

FICA FRIO, LTD., Plaintiff,
v.
Jerry SEINFELD, Defendant.


Jerry Seinfeld, Third-Party Plaintiff,
v.
European Collectibles, Inc., Third-Party Defendant.

19 Civ. 1032 (VM)

United States District Court, S.D. New York.

Signed January 21, 2020
Filed January 22, 2020


434 F.Supp.3d 83

Danny Cameron Moxley, David J. Molton, Brown Rudnick LLP, New York, NY, for Plaintiff.

Orin Snyder, David Matthew Kusnetz, Gibson, Dunn & Crutcher, LLP, New York, NY, for Defendant.

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

This case concerns the sale of an allegedly inauthentic Porsche by third-party

434 F.Supp.3d 84

defendant European Collectibles, Inc. ("European Collectibles") to defendant Jerry Seinfeld ("Seinfeld") and the sale of the same vehicle by Seinfeld to plaintiff Fica Frio Limited ("Fica Frio").

On February 1, 2019, Fica Frio filed a complaint against Seinfeld, alleging that Seinfeld sold an inauthentic 1958 Porsche 356 A 1500 GS/GT Carrera Speedster (the "Vehicle") to Fica Frio while representing that the Vehicle was authentic. (See "Complaint," Dkt. No. 1.) Fica Frio alleges causes of action for negligent misrepresentation, intentional misrepresentation, mutual mistake, breach of oral agreement, and breach of express warranty. (Compl. ¶¶ 35-74.)

In the third-party complaint filed in this action, Seinfeld maintains that he "has no knowledge of whether Fica Frio's allegations regarding the authenticity of the Vehicle are true" but that he purchased the Vehicle from third-party defendant European Collectibles in reliance on European Collectibles' representations regarding the Vehicle's authenticity. ("Third-Party Complaint," Dkt. No. 11 ¶¶ 3-4, 9.) Seinfeld asserts causes of action against European Collectibles for fraudulent misrepresentation, negligent misrepresentation, fraudulent concealment, breach of express warranty under California Commercial Code Section 2313, breach of contract, rescission, and equitable indemnity. (Id. ¶¶ 67-112.)

Consistent with the Court's Individual Rules, on April 10, 2019, European Collectibles wrote to Seinfeld's counsel regarding an anticipated motion to dismiss the Third-Party Complaint for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure (" Rule 12(b) (2)"). (Dkt. No. 17.) Seinfeld responded by letter dated April 18, 2019, identifying reasons why he believed such a motion would not succeed. (See Dkt. No. 19.) By letter dated April 26, 2019, European Collectibles notified the Court that the parties had been unable to resolve their differences. (Dkt. No. 20.) At European Collectibles' request (see id. ), the Court held a pre-motion telephone conference on May 20, 2019 at which the Court heard argument on European Collectibles' letter request to file a motion to dismiss (see Minute Entry Dated May 20, 2019). The Court subsequently deemed the letters of European Collectibles (Dkt. Nos. 17 and 20) as a motion to dismiss the Third-Party Complaint for lack of personal jurisdiction pursuant to Rule 12(b) (2) (the "Motion").1 (Dkt. No. 25.) For the reasons set forth below, the Motion is DENIED.

I. BACKGROUND

A. FACTUAL BACKGROUND 2

Seinfeld is an individual residing in the state of New York. Seinfeld employs Sam Cabiglio ("Cabiglio") to purchase and sell cars on his behalf.

European Collectibles is a California corporation and licensed automobile dealer with its principal place of business in Costa Mesa, California. European Collectibles represents on its website that it restores cars and ships them domestically and internationally. (Third-Party Compl. ¶ 28.) Nicholas Clemence ("Clemence") is the owner, Chief Executive Officer, Chief Financial Officer, Secretary, and sole director

434 F.Supp.3d 85

of European Collectibles. Chris Casler ("Casler") serves as European Collectibles' sales manager.

On February 2, 2013, Casler emailed Cabiglio to propose a sale of the Vehicle. In this email, Casler described the car as a "1958 Porsche 356A T2 1500 GT Carrera Speedster" and one of thirteen Speedsters finished in "Auratium Green with Black" at the factory. (Id. ¶ 34 (quoting "Casler Email," Dkt. No. 11-2).) Casler also represented that European Collectibles used all original parts to restore the Vehicle. (Id. (quoting Casler Email).) After receiving the email, Cabiglio called Casler to learn more about the Vehicle. Altogether, Cabiglio spoke with Clemence and Casler by phone on at least four occasions before Seinfeld purchased the Vehicle. On or about February 11, 2013, Cabiglio inspected the Vehicle at European Collectibles' headquarters in Costa Mesa, California. Clemence, Casler, and another European Collectibles employee were present during the inspection. At some point, European Collectibles furnished a "Porsche Certificate of Authenticity" that listed the Vehicle's identification number, model year, and type. The certificate was signed by the President and Chief Executive Officer of Porsche Cars North America, Inc.

On February 14, 2013, European Collectibles executed a Purchase Order that identifies Seinfeld as the buyer of the Vehicle and provides his New York address. ("Purchase Order," Dkt. No. 11-4.) That same day, Seinfeld purchased the Vehicle from European Collectibles for $1.2 million.

B. EUROPEAN COLLECTIBLES' MOTION TO DISMISS

In its April 10 letter, European Collectibles asserts that this Court lacks personal jurisdiction over European Collectibles because its actions in connection with the sale occurred in California. (Dkt. No. 17, at 1.) Specifically, European Collectibles notes that it communicated only with Cabiglio, a California resident, who inspected the Vehicle in California. (Id. ) European Collectibles denies having any direct contact with Seinfeld. (Id. ) European Collectibles also claims that Cabiglio directed European Collectibles to ship the Vehicle to a hangar in California. (Id. ) According to European Collectibles, no one apprised it of the Vehicle's ultimate destination. (Id. )

European Collectibles argues that because its actions in connection with the sale occurred within California, the sale does not constitute a transaction of business in New York within the meaning of New York's long arm statute. Additionally, European Collectibles claims that it did not purposefully direct any actions at New York and did not expect its conduct to have consequences in New York. (Id. at 2. ) Finally, European Collectibles denies having continuous and systematic contacts with New York. (Id. )

By letter dated April 18, 2019, Seinfeld responded that he has made the requisite prima facie showing that this Court has personal jurisdiction over European Collectibles. (See Dkt. No. 19.) Seinfeld contends that European Collectibles is amenable to personal jurisdiction under either of two subsections of New York's long arm statute, New York Civil Practice Law and Rules ("C.P.L.R.") Sections 302(a)(3)(ii) and 302(a)(1) (" Section 302 (a) (3) (ii)" and " Section 302(a)(1)," respectively). Seinfeld maintains that Section 302(a) (3) (ii) provides personal jurisdiction over European Collectibles because he has made a prima facie showing that: (1) European Collectibles committed a tortious act outside of New York by making misrepresentations in California, (2) Seinfeld's causes of action arise out of those misrepresentations, (3) Seinfeld suffered direct injury in New

434 F.Supp.3d 86

York when he paid for the Vehicle from his New York bank account in reliance on the misrepresentations, (4) European Collectibles expected or reasonably should have expected its misrepresentations to have consequences in New York because European Collectibles executed the Purchase Order, which listed Seinfeld's name and New York address, and (5) European Collectibles derives substantial revenue from interstate or international commerce, as indicated by the representations European Collectibles made on its website. Seinfeld claims that European Collectibles is also amenable to personal jurisdiction under Section 302(a)(1) because Seinfeld has made a prima facie showing that European Collectibles knowingly contracted to supply the Vehicle to a New York domiciliary.

II. LEGAL STANDARD

The plaintiff bears the burden of establishing that the court has personal jurisdiction over the defendant. See Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013).3 The showing the plaintiff must make depends on the procedural stage of the litigation. Where, as here, discovery has not yet begun, the plaintiff must allege facts constituting a prima facie showing of personal jurisdiction. See id. When reviewing a motion to dismiss for lack of personal jurisdiction, the Court must construe all allegations "in the light most favorable to the plaintiff" and resolve all doubts in the plaintiff's favor, "notwithstanding a controverting presentation by the moving party." Pearson Educ. v. Shi, 525 F. Supp. 2d 551, 555 (S.D.N.Y. 2007) (quoting A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993) ). Nevertheless, conclusory allegations do not suffice; the plaintiff must allege jurisdiction...

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3 practice notes
  • E. I. Du Pont De Nemours & Co. v. Chemtura Corp., SC 20329
    • United States
    • Supreme Court of Connecticut
    • July 2, 2020
    ...New York intermediate appellate court cases. See Ray v. Ray , 799 Fed. Appx. 29, 30 (2d Cir. 2020) ; Fica Frio, Ltd. v. Seinfeld , 434 F. Supp. 3d 80, 88 (S.D.N.Y. 2020). The plaintiff responded and argued that the defendant's letter was procedurally improper and that the supplemental autho......
  • Sothebys, Inc. v. Thut, Civil Action 21 Civ. 6574 (LJL) (SLC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 28, 2022
    ...Kreutter v. McFadden Oil Corp., 15 71 N.Y.2d 460, 467, (1988)), Defendants' conduct was “purposeful,” Fica Frio, Ltd. v. Seinfeld, 434 F.Supp.3d 80, 90 (S.D.N.Y. 2020), and there exists a “substantial relationship between the transaction and the claim asserted[,]” id., Defendants are subjec......
  • Kumar v. Opera Sols. Opco, 1:20-cv-6824-GHW
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 28, 2021
    ...purposeful availment for purposes of establishing a business transaction “is an objective inquiry.” Fica Frio, Ltd. v. Seinfeld, 434 F.Supp.3d 80, 87 (S.D.N.Y. 2020) (quoting Al Rushaid v. Pictet & Cie, 45 N.Y.S. 3d 276 (2016)). In addition, “the cause of action [must] ‘arise from' that bus......
3 cases
  • E. I. Du Pont De Nemours & Co. v. Chemtura Corp., SC 20329
    • United States
    • Supreme Court of Connecticut
    • July 2, 2020
    ...New York intermediate appellate court cases. See Ray v. Ray , 799 Fed. Appx. 29, 30 (2d Cir. 2020) ; Fica Frio, Ltd. v. Seinfeld , 434 F. Supp. 3d 80, 88 (S.D.N.Y. 2020). The plaintiff responded and argued that the defendant's letter was procedurally improper and that the supplemental autho......
  • Sothebys, Inc. v. Thut, Civil Action 21 Civ. 6574 (LJL) (SLC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 28, 2022
    ...Kreutter v. McFadden Oil Corp., 15 71 N.Y.2d 460, 467, (1988)), Defendants' conduct was “purposeful,” Fica Frio, Ltd. v. Seinfeld, 434 F.Supp.3d 80, 90 (S.D.N.Y. 2020), and there exists a “substantial relationship between the transaction and the claim asserted[,]” id., Defendants are subjec......
  • Kumar v. Opera Sols. Opco, 1:20-cv-6824-GHW
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 28, 2021
    ...purposeful availment for purposes of establishing a business transaction “is an objective inquiry.” Fica Frio, Ltd. v. Seinfeld, 434 F.Supp.3d 80, 87 (S.D.N.Y. 2020) (quoting Al Rushaid v. Pictet & Cie, 45 N.Y.S. 3d 276 (2016)). In addition, “the cause of action [must] ‘arise from' that bus......

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