Revel XP, LLC v. Never Forget Brands, LLC

• Citation: 2022 NCBC 39
• Decision Date: 25 July 2022
• Docket Number: 22 CVS 384
• Parties: REVEL XP, LLC, Plaintiff, v. NEVER FORGET BRANDS, LLC d/b/a GAMEDAY VODKA, Defendant.
• Court: Superior Courts of Law and Equity of North Carolina

2022 NCBC 39

REVEL XP, LLC, Plaintiff, v. NEVER FORGET BRANDS, LLC d/b/a GAMEDAY VODKA, Defendant.

No. 22 CVS 384

Superior Court of North Carolina, Forsyth

July 25, 2022

Kilpatrick Townsend & Stockton LLP by Whitney R. Pakalka and Richard J. Keshian for Plaintiff Revel XP, LLC.

Wyatt Early Harris Wheeler LLP by Scott F. Wyatt and Donavan John Hylarides, and The Law Office of L.W. Cooper, Jr. by Nicholas P. Tierney, pro hac vice, for Defendant Never Forget Brands LLC.

ORDER AND OPINION ON MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Michael L. Robinson Special Superior Court Judge

1. THIS MATTER is before the Court on Defendant Never Forget Brands, LLC d/b/a GameDay Vodka's ("GameDay") Motion to Dismiss for Lack of Personal Jurisdiction (the "Motion") filed on 1 April 2022. (ECF No. 7 ["Mot."].)

2. Having considered the Motion, the related briefing, affidavits, exhibits, and arguments of counsel at the hearing on the Motion, the Court hereby DENIES the Motion for the reasons set forth herein.

I. INTRODUCTION

3. Plaintiff Revel XP, LLC, ("Revel") contends that GameDay breached a marketing agreement between the parties by ceasing to pay Revel for its marketing services. GameDay moves to dismiss Revel's claims against it, pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure ("the Rule(s)") on the grounds that GameDay is not subject to personal jurisdiction in North Carolina.

4. The parties have each submitted briefing and evidence in the form of affidavits and exhibits in support of and in opposition to GameDay's Motion. The Court held a hearing on 15 June 2022. Having considered all relevant matters, the Court finds the following facts by a preponderance of the evidence and makes the following conclusions of law.

II. FINDINGS OF FACT

5. Revel is a North Carolina Limited Liability Company with its principal place of business in Winston-Salem North Carolina, which hosts, staffs and promotes events for professional and collegiate sports fans. (Machosky Aff. ¶¶ 29-32, ECF No. 19.) Revel contracts with collegiate and professional sports teams for the right to host and staff special events, including tailgate parties, and Revel grants sponsorship rights to vendors looking to promote their brands at these events. (Machosky Aff. ¶¶ 14-17, ECF No. 19.)

6. Revel is owned in majority by Teall Sports & Entertainment, LLC, which in turn is owned and managed by Teall Capital, based in Winston-Salem, with offices at 500 West Fifth Street (Suite 1200), Winston-Salem, North Carolina. (Machosky Aff. ¶¶ 8-12.)

7. GameDay is a South Carolina Limited Liability Company with its principal place of business in Charleston, South Carolina. (David Aff. ¶ 5, ECF No. 9.4.) GameDay markets, distributes, and sells vodka and related products. (David Aff. ¶ 5.)

8. GameDay has licensure agreements and partnerships with collegiate and professional sports teams in the states of South Carolina, Texas, Florida, Tennessee, New York, Louisiana, Maryland, and Colorado. (See David Aff. ¶ 6.) GameDay does not have any partnerships, licensure agreements, affiliations, or agreements with any college or professional sports entities in North Carolina. (David Aff. ¶ 7.)

9. GameDay is not registered to do business in North Carolina, does not have a license to sell liquor in North Carolina, and does not maintain any physical location or own real property in North Carolina. (Nieves Aff. ¶¶ 31-34, ECF No. 9.5; David Aff. ¶ 32.)

10. Revel's Director of Business Development, Glenn Gronkowski ("Gronkowski") initiated contact with GameDay in February 2021 after seeing GameDay Vodka billboards in Tampa, Florida while traveling there for the Super Bowl. (Machosky Aff. ¶¶ 43, 46-48.) Gronkowski messaged Ray Horal ("Horal"), GameDay's Chief Sales Officer, via LinkedIn on 18 February 2021 and said that Revel's services "might be a great way for [GameDay] to be a part of our platform and drive additional sales at 'game days' across America. Would love to discuss further if interested." (Machosky Aff. Ex. A., ECF No. 19.1.)

11. Horal followed-up on 19 February 2021 and provided an 85-page "Brand Deck" to Gronkowski and explained that GameDay was "deep into the planning process of a rather disruptive 2021 GameDay Tailgate Tour that'll run throughout FL, GA, SC, TX, LA, CO, MD, & numerous other markets." (Def.'s Ex. 3, ECF No. 9.3 ["Horal Email"].)

12. From February 2021 through 3 March 2021, Revel employee AJ Machosky ("Machosky") engaged in exploratory discussions with GameDay employees Horal, Charles Nieves ("Nieves"), and Giuliana Rossi ("Rossi") regarding a potential relationship between Revel and GameDay. (Machosky Aff. ¶¶ 53-56.)

13. All negotiations between Revel and GameDay took place remotely via phone calls and videoconferences. (David Aff. ¶ 14.) None of the participants in these conversations were physically located in North Carolina except as described in paragraph 17 infra. (David Aff. ¶ 13.)

14. On 4 March 2021, Horal sent Machosky a 30-page presentation (the "GameDay Pitch Deck") created by GameDay, which discussed a potential marketing partnership between Revel and GameDay. (Machosky Aff. ¶ 56, Machosky Aff. Ex. D, ECF No. 19.4 ["GameDay Pitch Deck"].)

15. Page 10 of the GameDay Pitch Deck is titled "Distribution Roadmap" and contains a list of U.S. markets in which GameDay intended to begin distributing its vodka. (See GameDay Pitch Deck 10.) North Carolina is the first state GameDay listed for the year 2022. (See GameDay Pitch Deck 10.)

16. Page 11 of the GameDay Pitch Deck, titled "Partnership Roadmap," contains a list of collegiate and professional sports organizations with which GameDay sought to establish partnerships during each year from 2021-23. (See GameDay Pitch Deck 11.) Duke University, located in Durham, North Carolina, is listed as a partner for the year 2023. (See Pitch Deck 11.)

17. On 24 March 2021, Machosky participated in a videoconference with Horal and Rossi and presented Revel's proposal for a marketing agreement with GameDay (the "24 March Zoom Call"). (Machosky Aff. ¶ 62.) Machosky, although a resident of Michigan, was in Charlotte, North Carolina during the 24 March Zoom Call because he was involved in one of Revel's Topgolf Live events taking place at Charlotte's Bank of America Stadium. (Machosky Aff. ¶ 64-65.) During the 24 March Zoom Call, Machosky presented a pitch deck prepared by Revel (the "Revel Pitch Deck") to GameDay representatives. (Machosky Aff. Ex. E, ECF No. 19.5 ["Revel Pitch Deck"].)

18. Page 3 of the Revel Pitch Deck contains a map of Revel's existing collegiate and professional sports partnerships, including four universities in North Carolina. (Revel Pitch Deck 3.) During the presentation, Horal indicated to Machosky that GameDay wished to expand into North Carolina. (Machosky Aff. ¶ 74.)

19. Following the 24 March Zoom Call, Revel and GameDay, with the assistance of legal counsel, exchanged drafts of a proposed written marketing agreement. (Machosky Aff. ¶ 76.)

20. On 20 May 2021, the parties finalized the terms of a written marketing agreement (the "Agreement"), which was signed by Machosky on behalf of Revel and by Zach David on behalf of GameDay. (Machosky Aff. ¶ 80; Marketing Agreement 1, 9 ["Agrmt."].) The Agreement was executed by use of DocuSign, and none of the signatories were located in North Carolina at the time of execution. (David Aff. ¶ 14.)

21. The Agreement, in its opening paragraph, identifies Revel as a North Carolina limited liability company. (Agrmt. 1.)

22. The Agreement commenced on 20 May 2021 and is set to expire on 30 June 2025. (Agrmt. ¶ 2.)

23. The Agreement states that "[t]his Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without application of its conflicts of laws provisions." (Agrmt. ¶ 25.)

24. The Agreement requires GameDay to make periodic payments to Revel. GameDay is to "submit each payment by check, wire transfer, or Quickbooks invoice payment. If [GameDay] pays by check, then [GameDay] should send the check, together with an invoice identifying this Agreement, to the below remittance address, unless and until [Revel] directs otherwise." (Agrmt. ¶ 5.) The provided remittance address for check payments is a Winston-Salem, North Carolina address which corresponds with Revel's principal place of business. (See Agrmt. ¶ 5.)

25. Under the Agreement, Revel is to develop and oversee tailgate parties at sporting events featuring GameDay products. As a part of its performance under the Agreement, "[Revel] is responsible for providing, transporting, maintaining, setting up, taking down and replacing all equipment and physical assets used at Events and that are used to provide Marketing Activities." (Agrmt. ¶ 10(a).)

26. GameDay is to make scheduled payments to Revel. In addition, the Agreement requires that GameDay and Revel enter into written Statements of Work ("SOWs"), which set forth "the scope and value of the Marketing Activities to be provided by [Revel] to [GameDay]." (Agrmt. 10-12.) A form SOW is attached to the Agreement as Exhibit B, and requires the title, date, location of the event, the marketing activities to take place, the value of the marketing activities, and any additional provisions related to the event. (Agrmt. 13.) Each SOW stated in the opening paragraph that Revel is "a North Carolina limited liability company." (Strickland Aff. ¶ 10, ECF No. 21.)

27. Pursuant to the Agreement, Revel assigned Kasey Strickland ("Strickland"), a Revel employee, to be a dedicated staff member to effectuate GameDay's events, marketing and promotional activities. (David Aff. ¶ 21, Strickland Aff ¶ 7.)

28. Strickland was located in Alabama at all times relevant to the...