Television Events Marketing v. Amcon Distributing
| Decision Date | 18 January 2006 |
| Docket Number | No. CV 05-00259 ACK/KSC.,CV 05-00259 ACK/KSC. |
| Citation | 416 F.Supp.2d 948 |
| Court | U.S. District Court — District of Hawaii |
| Parties | TELEVISION EVENTS & MARKEING, INC., a Hawaii Corporation, Plaintiff, v. AMCON DISTRIBUTING CO., a Delaware Corporation; the Beverage Group, Inc., a Delaware Corporation; the Beverage Group aka Amcon Beverage Company; Amcon Corporation, a Delaware Corporation; and William F. Wright, Defendants. |
David A. Nakashima, Jessica M. Horiuchi, Paul Alston, Alston, Hunt, Floyd & Ing, Honolulu, HI, for Plaintiff.
Gary G. Grimmer, Steven M. Egesdal, Carlsmith Ball, Robert A. Marks, Price, Okamoto, Himeno & Lum, Honolulu, HI, Michael J. Holmes, Allen, Matkins, Leck, Gamble & Mallory LLP, San Diego, CA, for Defendants.
ORDER DENYING AMCON CORPORATION AND WILLIAM F. WRIGHT'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION; DENYING AMCON CORPORATION AND WILLIAM F. WRIGHT'S MOTION TO TRANSFER FOR LACK OF PERSONAL JURISDICTION OR IMPROPER VENUE; AND DENYING AMCON CORPORATION AND WILLIAM F. WRIGHT'S MOTION TO TRANSFER FOR CONVENIENCE
On March 8, 2005, Television Events & Marketing, Inc. ("Plaintiff' or "TEAM") filed a Complaint in the Circuit Court of the First Circuit of the State of Hawaii against AMCON Distributing Company; The Beverage Group, Inc.; and Trinity Springs, Inc. (collectively "Original Defendants") for (1) breach of license agreements and (2) fraudulent transfer under Hawaii Revised Statutes ("HRS") §§ 651C-4 and 651C-5. The Complaint was removed to this Court on April 12, 2005.
On May 5, 2005, Original Defendants filed a Motion to Dismiss and for Summary Judgment and to Transfer Venue ("Defendants' Motion for Dismissal and Summary Judgment").
On May 25, 2005, Defendant AMCON Distributing Company filed a Motion for Protective Order pursuant to Federal Rule of Civil Procedure 26(c), requesting an order that AMCON Distributing Company not be required to respond to Plaintiff's discovery requests until after the Court heard and ruled on Defendant's Motion for Dismissal and Summary Judgment. Plaintiff filed an Opposition on May 27, 2005.
On May 25, 2005, Plaintiff filed a Motion to Continue the hearing on Defendants' Motion for Dismissal and Summary Judgment,1 seeking a continuance of the hearing on the Motion for at least ninety days in order to allow Plaintiff to conduct discovery to respond to Original Defendants' Motion. (Mot. to Cont. at 10). Original Defendants filed an Opposition on May 27, 2005. On May 31, 2005, Plaintiff filed a Reply in support of its Motion to Continue. A hearing was held on both the Motion to Continue and the Motion for Protective Order on May 31, 2005. On June 1, 2005, the Court, issued a written Order Granting Plaintiff's Motion to Continue and Denying Defendants' Motion for a Protective Order.
On September 1, 2005, Plaintiff filed a First Amended Complaint adding Defendants The Beverage Group aka AMCON Beverage Company and William F. Wright (collectively "Additional Defendants"), an Opposition to Defendants' Motion to Dismiss and for Summary Judgment and to Transfer Venue, and a Separate and Concise Statement of Facts in Support of its Opposition. On September 6, 2005, Plaintiff filed an Errata to Plaintiff's Opposition and an Errata to Plaintiff's Separate and Concise Statement of Facts. On September 7, 2005, Plaintiff filed an Amended Opposition and an Amended Separate and Concise Statement of Facts.
On September 7, 2005, Original Defendants filed an Ex Parte Motion for Leave to File Reply Memorandum in Support of Defendants' Motion to Dismiss and for Summary Judgment and to Transfer Venue Filed on May 5, 2005 Not to Exceed 23 Pages. On September 8, 2005, the Court notified counsel for Plaintiff and Original Defendants that the Court was Granting Defendants' Motion and would be filing a written Order that would also permit Plaintiff to respond to Defendants' Reply by Thursday, September 15, 2005; permit the Defendants to respond to Plaintiffs response by Tuesday, September 20, 2005; and reset the hearing on Defendants' Motion from September 19, 2005 to September 27, 2005.
On September 8, 2005, Original Defendants filed a Reply in Support of their Motion to Dismiss and for Summary Judgment and to Transfer Venue. On September 9, 2005, the Court filed a written Order Granting Defendants' Ex Parte Motion for Leave to File Reply Memorandum in Support of Defendants' Motion to Dismiss and for Summary Judgment and to Transfer Venue Filed on May 5, 2005 Not to Exceed 23 Pages.
On September 15, 2005, Plaintiff filed a Reply Memorandum to Defendants' Reply Memorandum.
On September 20, 2005, Original Defendants filed a Sur-Reply Memorandum in Support of Defendants AMCON Distributing Company; The Beverage Group, Inc.; and Trinity Springs, Inc.'s Motion to Dismiss and for Summary Judgment and to Transfer Venue.
On September 27, 2005, a hearing on Original Defendants' Motion was held.
On September 29, 2005, the Court issued a written Order Denying AMCON Distributing Company's Motion To Dismiss for Lack of Personal Jurisdiction; Granting Defendants' Request to Amend their Motion to Dismiss and for Summary Judgment and to Transfer Venue, Filed May 5, 2005, to Assert a Defense of Lack of Personal Jurisdiction as to Trinity Springs, Inc.; Denying Defendants AMCON Distributing Company and The Beverage Group, Inc.'s Motion for Summary Judgment as to Plaintiffs First Claim for Relief and Not Addressing the Motion as to The Beverage Group, William F. Wright, nor AMCON Corporation; Denying Defendants AMCON Distributing Company and The Beverage Group, Inc.'s Motion for Summary Judgment as to the Plaintiffs Second Claim for Relief and Not Addressing the Motion as to William F. Wright nor Trinity Springs, Inc.; and Denying Defendants' Motion To Transfer Venue. ("September 29, 2005 Order").
On October 5, 2005, Additional Defendants filed a Motion to Dismiss or to Transfer Venue ("Defendants' Motion for Dismissal or Transfer").
On October 31, 2005, the parties Stipulated that the Plaintiff would file its Memorandum in Opposition to the Defendants' Motion for Dismissal or Transfer ("Opposition Memo") by December 15, 2005. The parties Stipulated that the Additional Defendants would file their Reply Memorandum ("Reply Memo") by December 22, 2005.
On December 2, 2005, Plaintiff filed a Motion for Leave to File a Second Amended Complaint.
On December 15, 2005, Original Defendants filed for Joinder to the Defendants' Motion for Dismissal or Transfer.
On December 16, 2005, Plaintiff filed its Opposition Memo. The parties Stipulated to modify the Briefing Schedule and it was so Ordered by the Court.
On December 19, 2005, the parties Stipulated to the filing of a Second Amended Complaint. On December 21, 2005 Plaintiff filed a Second Amended Complaint against AMCON Distributing Company; The Beverage Group, Inc.; The Beverage Group aka AMCON Beverage Company; AMCON Corporation; and William F. Wright (collectively "Defendants"). Trinity Springs Inc. was eliminated as a defendant in the Second Amended Complaint.
On December 23, 2005, Additional Defendants filed their Reply Memo.
A hearing was held on the Defendants' Motion for Dismissal or Transfer on January 9, 2006. At that hearing, Plaintiff submitted three cases for consideration in support of its arguments. Court granted Defendants three days to submit a response to those cases. Additional Defendants submitted their response on January 12, 2006.
Plaintiff Television Events & Marketing, Inc. ("Plaintiff" or "TEAM") is a Hawaii corporation, which has its principal place of business in Honolulu, Hawaii. (Compl.¶4).3 Plaintiff alleges Defendant Amcon Distributing Company ("Distributing") is a Delaware corporation, with its principal place of business in Nebraska. (Compl.¶5). Plaintiff alleges that The Beverage Group, Inc. ("TBG, Inc.") is an inactive Delaware Corporation, which has its principal place of business in California and is a wholly owned subsidiary of Distributing. (Compl.¶(6). Defendant Amcon Corporation ("Amcon Corp.") is a Delaware Corporation, with its principal place of business in Nebraska. (Compl. ¶7; Defendants' Motion for Dismissal or Transfer at 3). Defendant William F. Wright ("Wright") is a citizen of California. (Defendants' Motion for Dismissal or Transfer at 2). Plaintiff alleges that The Beverage Group aka Amcon Beverage Company was either (1) a "dba" name for Wright working for his own interest and/or as agent for Distributing; (2) a joint venture started in 2002 that was funded and operated by Wright together with Amcon Corp. and/or Distributing in anticipation of the formation of TBG, Inc.; or (3) the self-chosen name used by Wright, Amcon Corp., and Distributing as promoters of TBG, Inc. (Compl.¶ 9). Plaintiff alleges that, in January 2003, Wright caused the assets and business of The Beverage Group to be turned over to TBG, Inc. (Compl.¶ 10).
Plaintiff owns the registered trademark "XTERRA" (hereinafter "the Mark"). (Compl.¶ 11). Plaintiff alleges that it licenses the Mark to various companies in connection with its triathlon races throughout the world. (Opposition Memo at 2, 3). In 2002, Plaintiff was seeking to replace its licensee for energy bars and drinks. (Opposition Memo at 3).
Plaintiff alleges that, in May 2002, Tom Kiely ("Kiely"), TEAM's President and CEO, had a discussion with Wright. (Opposition Memo, Ex. B). Plaintiff alleges that this discussion explored the possibility of forming an alliance to create energy bars and energy drinks bearing the Mark. (Opposition Memo at 3). On May 24, 2002, Kiely followed up this conversation with a letter confirming that they would meet in Hawaii to discuss a possible alliance. (Opposition Memo, Ex. B). Plaintiff alleges that a draft of the license agreement was attached to the letter. (Opposition Memo at 3).
Plaintiff alleges that, on July 21, 2002, Wright...
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