Liu Jo S.P.A. v. Jenner, 21 Civ. 6543 (LLS)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtLOUIS L. STANTON, U.S.D.J.
Docket Number21 Civ. 6543 (LLS)
Decision Date22 September 2022

LIU JO S.P.A., Plaintiff,


No. 21 Civ. 6543 (LLS)

United States District Court, S.D. New York

September 22, 2022



Plaintiff Liu Jo S.P.A. ("Liu Jo"), an apparel company, brings this diversity action against defendants Kendall Jenner ("Jenner"), Kendall Jenner, Inc. ("KJI"), Elite World Group, LLC ("Elite"), and The Society Model Management, Inc. ("Society") asserting claims they breached their contract with Liu Jo and were unjustly enriched. The contract was for Jenner, through KJI, to appear as the face of Liu Jo's 25th Anniversary campaign.

Defendants Elite and Society move to dismiss Liu Jo's complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure Rule 12(b)(6). Dkt. No. 26. Simultaneously, defendants Jenner and KJI also move to dismiss for failure to state a claim, as well for dismissal for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure Rule 12(b)(2). Dkt. No. 40.

For the reasons below, Elite and Society's motion to dismiss for failure to state a claim is granted in part and denied in part. Jenner and KJI's motion to dismiss for lack of


jurisdiction is denied and their motion to dismiss for failure to state a claim is granted in part and denied in part.


The following facts are taken from the Complaint. Dkt. No. 1 ("Compl."). Liu Jo is an Italian corporation headquartered in Capri, Italy that specializes in the sale of clothing and fashion accessories. Id. ¶¶ 15, 23.

Kendall Jenner is a fashion model who resides in the state of California. Id. at ¶ 15. Kendall Jenner, Inc. is a corporation organized under the laws of California with its principal place of business in Los Angeles, California. Id. at ¶ 16. Kendall Jenner is the alleged sole active officer of Kendall Jenner, Inc. Id. She allegedly operates KJI as an alter ego. Id.

Elite World Group, LLC is the parent corporation of The Society Model Management, Inc. Id. at ¶ 17. Both are organized under the laws of New York with their principal places of business in New York, New York. Id. at ¶¶ 17 & 18. Elite and Society operate as agents on behalf of Jenner and KJI for the contracting of Jenner's modeling appearances. Id. ¶ 21.

On July 11, 2019, Liu Jo and KJI executed the "Kendall Jenner-Liu Jo Term Sheet" (the "Term Sheet") . Id. at ¶¶ 2, 25; Id. Ex. A at 2. The Term Sheet was signed by Ayisha Morgan, the General Counsel of Elite World Group, LLC, as an authorized representative of KJI. Id. ¶ 26; Id. Ex. A at 2, 4.


The contract was centered around Jenner providing modeling services for two photoshoots in connection with Liu Jo's Spring/Summer 2020 and Fall/Winter 2020 campaigns in order to promote Liu Jo's "stores and operations in 50 countries across Europe, Africa, Asia, and South America." Id. ¶ 23. For these campaigns, Jenner, through KJI, was required to provide modeling services at two photoshoot dates and one event, generate several social media posts, and participate in eight interviews that would be conducted via email. Id. ¶¶ 27, 30; Id. Ex. A at 1. The photoshoots and event were to be scheduled subject to Jenner's, through KJI's, confirmation and availability. Id. Ex. A at 2. In exchange, Liu Jo was required to pay, in installments, $1,500,000 plus a 20% service fee to KJI c/o The Society Model Management and provide Jenner with airfare, accommodations, airport greeters, ground transportation, security, and hair and makeup stylists. Id. Ex. A at 3-4. All payments were remitted according to schedule to Society in New York. Id. ¶ 32. To date, Liu Jo has paid $1,350,000. Id. at ¶ 34.

In July 2019, Jenner traveled to Europe to attend the first of the two photoshoot dates. Id. ¶¶ 4, 35. The second (and final) photoshoot was set to take place in Europe on March 31, 2020. Id. ¶¶ 35-36. However, as a result of the COVID-19 pandemic, Liu Jo requested that the parties postpone the shoot until Fall 2020, with the intent to use the photos for the


Spring/Summer 2021 campaign, instead of the Fall/Winter 2020 campaign as agreed. Id. ¶¶ 5, 14, 36. KJI agreed to Liu Jo's requested postponement. Id. ¶ 36.

The parties attempted to negotiate new dates and locations for the second shoot. Id. ¶¶ 10, 41. However, Jenner, KJI, Society, and Elite allegedly repeatedly failed to provide Liu Jo with definitive responses to Liu Jo's messages and ultimately turned down all of Liu Jo's suggested deferral dates on the grounds that travel was impossible. Id. ¶¶ 37, 42.

For example, Jenner declined to accept Liu Jo's offer to reschedule the second photoshoot in September and instead suggested dates in October when the parties could meet in London, England. Id. ¶ 39. Liu Jo picked two dates from Jenner's suggestions, October 15th, and 16th. Id. However, the defendants did not confirm Jenner's attendance and ceased responding to any of Liu Jo's messages until October 7th, after Liu Jo informed them that the contract was terminated because they were in breach of it. Id.

Subsequently, Liu Jo attempted to request a refund of all payments made thus far by Liu Jo to KJI. Id. 1 46. When the repayment attempts were unsuccessful, Liu Jo brought suit on August 8, 2021.

Defendants all move to dismiss this action.



I. 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction[1]

a. Legal Standards

On a motion to dismiss for lack of personal jurisdiction, "where, as here the Court relies on the pleadings," and chooses not to conduct an evidentiary hearing, the plaintiff has the burden of establishing a "prima facie showing of personal jurisdiction." Southern New England Telephone Co. v. Global NAPs Inc., 624 F.3d 123, 138 (2d Cir. 2010). In doing so, a plaintiff "may not rely on conclusory statements without any supporting facts, as such allegations would 'lack the factual specificity necessary to confer jurisdiction.'" Mazloum v. Int'l Com. Corp., 829 F.Supp.2d 223, 227 (S.D.N.Y. 2011) (quoting Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 185 (2d Cir. 1998)). In resolving the motion, the Court is "construing all pleadings and affidavits in the light most favorable to the plaintiff and resolving all doubts in the plaintiff's favor." Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2011). But it is not bound to "accept as true a legal conclusion couched as a factual allegation." Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012).

b. Kendall Jenner and Kendall Jenner, Inc.


The reach of this Court's personal jurisdiction, in this case, is governed by the laws of the forum state, New York. See Spiegel v. Schulmann, 604 F.3d 72, 76 (2d Cir. 2010). Accordingly, the Court must first decide whether "jurisdiction is appropriate under the relevant state law, and then decide whether the exercise of jurisdiction comports with due process." Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963) (en banc).

i. Whether Jurisdiction Exists Under New York Law

KJI is "a corporation organized under the laws of California, with its principal place of business located in Los Angeles, California." Compl. ¶ 16. Kendall Jenner, the "sole active officer of Kendall Jenner, Inc." is "an individual who resides in the State of California." Id. at ¶¶ 15-16. Accordingly, Liu Jo asserts that specific personal jurisdiction exists under the New York long-arm statute, allowing a court to "exercise personal jurisdiction over any non-domiciliary, . . . who in person or through an agent . . . transacts any business within the state." N.Y. C.P.L.R. 302(a)(1).

In deciding whether it has a jurisdictional basis on which to exercise its powers over a party, a court evaluates "(1) whether the defendant transacts any business in New York and, if so, (2) whether this cause of action arises from such a business transaction." Licci, 673 F.3d at 60.


1. Whether Defendants Have Transacted Business in New York

As to whether the defendants transacted business in New York, Courts consider:

(i) whether the defendant has an on-going contractual relationship with a New York corporation;
(ii) whether the contract was negotiated or executed in New York and whether, after executing a contract with a New York business, the defendant has visited New York for the purpose of meeting with parties to the contract regarding the relationship;
(iii) what the choice-of-law clause is in any such contract;
(iv) and whether the contract requires franchisees to send notices and payments into the forum state or subjects them to supervision by the corporation in the forum state.

Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 22 (2d Cir. 2004). No one factor is determinative as the "ultimate determination is based on the totality of the circumstances." Id. The Court address each factor in turn.

The third factor, the choice-of-law clause, weighs against finding that Jenner and KJI conducted business in New York. The Term Sheet in this case contains no choice of law provision, but "a choice of law clause alone is not dispositive, and neither is its absence." Cyberscan Tech., Inc. v. Sema Ltd., No. 06 CIV. 526, 2006 WL 3690651, at *3 (S.D.N.Y. Dec. 13, 2006) (citation and internal quotations omitted).

The remaining three factors suggest that Jenner and KJI did transact business in New York. The first factor, whether Jenner and KJI had an on-going contractual relationship with a New York corporation, weighs in favor of establishing personal


jurisdiction over them. Although Liu Jo is not a New York corporation, Jenner and KJI had an on-going contractual relationship with New York corporations, Elite World Group, LLC and The Society Model Management, Inc., both of with are organized under the laws...

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