The opinion of the court was delivered by: Deborah A. Batts, United States District Judge.
Petitioner A. J. Heel Stone, L.L.C. ("Heel Stone") brought a Petition to Confirm Arbitral Award, seeking confirmation of an arbitration award rendered by the International Chamber of Commerce, International Court of Arbitration ("ICC"), sitting in Paris, France, against Evisu International S.r.L., now known as Centro Moda Veneto, S.r.l. (hereinafter referred to as "EIS"). The Court entered default judgment against EIS, granting judgment of $2,311,009.38 plus interest, and €16,863.70 plus interest to Heel Stone.
Unable to enforce this award against EIS, Heel Stone has filed an Amended Verified Second Turnover Petition (hereinafter referred to as "Second Petition" or "2d Pet.") before this Court against Respondents Peter James Hamilton Caplowe ("Caplowe") and Bestford (Hong Kong) Ltd. ("Bestford"). In the Second Petition, Heel Stone sets forth five claims for relief: fraudulent conveyance, alter ego liability, successor liability, constructive trust and disgorgement. Respondents Caplowe and Bestford have filed a Motion to Dismiss based on the principles of international comity, and on Fed. R. Civ. P. 12(b)(6) and 9(b) for failure to state a claim and for failure to plead fraud with particularity.*fn1 Petitioner opposes all motions.
For the following reasons, Respondents' Motion to Dismiss is DENIED in part and GRANTED in part.
The following facts are drawn from the Court's records of the procedural history of this case, the Second Petition and exhibits attached to it.
"Evisu" is a trademark registered in the United States primarily used in connection with certain lines of apparel and accessories. Hidehiko Yamane ("Yamane") created the brand in the 1990's. During the 1990s, Yamane and Respondent Caplowe met and decided to work together to market and distribute the "Evisu" brand outside of Japan. (2d Pet. ¶¶ 9-12.) In or about 1998, Caplowe formed Evisu International, S.r.l., now known as Centro Moda Veneto, S.r.l. ("EIS"), for the purpose of marketing and distributing the "Evisu" brand outside Japan. (Id. ¶ 13.) At all relevant times, Caplowe owned a majority and controlling interest in EIS. (Id. ¶ 67.)
In or about May, 1999, EIS was granted a renewable five-year license to manufacture and distribute "all types of apparel, footwear and accessories" under the "Evisu" trademark for all territories around the world excluding Japan.
On June 4, 1999, EIS entered into a distribution agreement with Petitioner Heel Stone ("Distribution Agreement"), whereby Heel Stone obtained the right to distribute certain "Evisu" products in the United States for a five-year period.
In May 2001, Dowluck entered into another license agreement for use of the "Evisu" mark, this time with Bestford, which was nearly identical to the license granted EIS in 1999. Bestford, like EIS, is owned and operated by Caplowe. (Id. ¶¶ 21, 42, 44, 62.)
On September 19, 2001, EIS terminated its Distribution Agreement with Heel Stone. In November of that year, EIS entered into a new exclusive distribution agreement with Ben Sherman USA ("Ben Sherman"). In response to the termination of its Distribution Agreement, Heel Stone unsuccessfully sought to enjoin the termination in New York State Supreme Court. Heel Stone then initiated arbitration proceedings before the ICC in Paris, France.
Prior to December, 2002, the "Evisu" trademark was registered in Yamane's name; in or about December, 2002, Yamane licensed all rights in and to the "Evisu" trademark to a company called Dowluck. It appears that Caplowe acted as "Attorney in Fact" to Dowluck. (Id. ¶¶ 42, 44, 62.)
On February 12, 2003, the ICC awarded Heel Stone approximately $2.5 million, finding that EIS had "wrongfully terminated" its agreement with Heel Stone. (Id. ¶ 48.)
On December 13, 2002, Bestford entered into an exclusive distribution agreement with Ben Sherman that largely mirrored the distribution agreement made between EIS and Ben Sherman. On February 28, 2003, immediately following the arbitration award and pursuant to a six-month termination notice sent by Dowluck to EIS in August 2002, Dowluck terminated EIS's license agreement to distribute Evisu products. In April, 2003, without satisfying the arbitration award in favor of Heel Stone, EIS was ...