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Kuklachev v. Gelfman

February 26, 2009

YURI KUKLACHEV, DMITRI KUKLACHEV, PLAINTIFFS,
v.
MARK GELFMAN, GELFMAN INTERNATIONAL ENTERPRISES, INC., YANIS GELFMAN, TRIBECA PERFORMING ARTS CENTER, TICKETMASTER.COM, PALACE OF FINE ARTS, WILKINS THEATER AT KEAN UNIVERSITY, ONLINESEATS.COM, JOHN HANCOCK HALL, GWINNETT CENTER, NAPA VALLEY OPERA HOUSE, LA'S WILSHIRE EBELL'S THEATER, SEATTLE REPERTORY THEATER, DMITRY KRASSOTKINE, YURI POTOSKI, MICHAEL ZLOTNIKOV, ANDREW YANKOVIS, STANISLAV NEMOY, VLADIMIR KRASNOLOZHKIN, AND VLADIMIR ANISIMOV, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge

MEMORANDUM OPINION AND ORDER

Yuri Kuklachev and Dmitri Kuklachev ("plaintiffs") commenced this action against defendants Mark Gelfman ("Gelfman"), Gelfman International Enterprises, Inc. ("Gelfman Inc."), Yanis Gelfman, Tribeca Performing Arts Center, Ticketmaster.com, Palace of Fine Arts, Wilkins Theater at Kean University, Onlineseats.com, Tillinger's Concierge, Inc., Gwinnett Center, Napa Valley Opera House, The Ebell Operating Company, Seattle Repertory Theater, Yuri Potoski, Michael Zlotnikov, Andrey Yankovis, Stanislav Nemoy, Vladimir Krasnolozhkin, Vladimir Anisimov, Dmitry Krassotkine, other as yet unidentified persons and companies, and the State of New Jersey, on June 2, 2008. Plaintiffs make the following claims in their complaint against each of the defendants: (1) federal trademark infringement under the Lanham Act, 15 U.S.C. § 1114; (2) false representation under the Lanham Act, 15 U.S.C. § 1125(a); (3) unfair competition and false designation under the Lanham Act, 15 U.S.C. § 1125(a); (4) trademark dilution under the Lanham Act, 15 U.S.C. § 1125(c); (5)cybersquatting in violation of the Lanham Act, 15 U.S.C. § 1125(d); (6) violation of privacy and publicity rights under the New York Civil Rights Law, Article 5, § 50 and § 51, N.Y. CLS Civ. R. § 50, 51; (7) injury to business reputation and trademark dilution under N.Y. GBL § 360-L; (8) unfair competition and false advertizing under the New York Unfair Trade Practices Law, GBL § 349-50 and New York City Administrative Code § 20-700, § 20-701; (9) unfair competition under New York common law; (10) unjust enrichment under New York common law; (11) copyright infringement; (12) trade dress infringement under the Lanham Act, 15 U.S.C. § 1125(a); (13) fraud; (14) conversion; (15) fraud in trademark application;*fn1 and (16) prima facie tort.

Now before the court is a motion filed on behalf of Gelfman Inc., Mark Gelfman ("Gelfman"), and Yanis Gelfman (the "Gelfmans" or "defendants") to dismiss the entire complaint pursuant to Fed.R.Civ.Pro. Rule 12(b)(6) for failure to state a claim upon which relief can be granted, or, in the alternative, pursuant to Fed.R.Civ.Pro 12(e), directing the plaintiffs to file a more definite statement. With respect to Claim XIII for fraud, defendants move to dismiss pursuant to Rule 9(b). Additionally, defendants move to dismiss pursuant to Rule 12(b)(1) and 12(b)(3) for lack of subject matter jurisdiction and improper venue based on an arbitration clause in a contract between Yuri Kuklachev and Gelfman, Inc. This is properly addressed as a motion to dismiss.*fn2 For the reasons set forth below, the motion to compel arbitration is granted with respect to two claims and denied with respect to the remaining claims, the motion to dismiss pursuant to Rule 12(b)(6) is granted in part and denied in part, the motion to dismiss pursuant to Rule 9(b) is denied, and the motion to require a more definitive statement under 12(e) is denied.

BACKGROUND

The following facts are taken from the plaintiffs' complaint and are taken as true for the purposes of the 12(b)(6) motion. Disputes are noted.

The Parties

Yuri Kuklachev ("Kuklachev") is a Russian national who tours the world with his troupe of cats and clowns, putting on theatrical performances. Kuklachev performs in the shows, manages the troupe, and organizes performances. Dmitri Kuklachev is Yuri Kuklachev's son, and is the artistic director and star performer of the troupe.

Defendant Mark Gelfman is the president of Gelfman Inc., a promotional and management business for entertainments. Yanis Gelfman is Mark Gelfman's son and the general manager of Gelfman Inc. All three of these defendants are collectively referred to as "the Gelfmans."

Defendants Palace of Fine Arts, Wilkins Theater at Kean University (an entity of the State of New Jersey), Gwinnett Center, Napa Valley Opera House, Wilshire Ebell Theater, and Seattle Repertory Theater are venues that plaintiffs claim hosted shows produced by the Gelfmans that allegedly infringed upon plaintiffs' trademarks.

Defendants Onlineseats.com and Ticketmaster.com are online ticket vendors that plaintiffs claim sold tickets to the allegedly infringing shows.

Defendants Yuri Potoski, Michael Zlotnikov, Andrey Yankovis, Stanislav Nemoy, Vladimir Krasnolozhkin, Vladimir Anisimov, and Dmitry Krassotkine were performers and crew members in the production of the allegedly infringing show.

Historical Background

In the early 1970's, plaintiff Kuklachev, a well-recognized clown, became known for public entertainments performed with his troupe of cat performers and clowns. Complaint at ¶ 44 ("Compl."). Rather than training the cats to perform tricks, Kuklachev selected his cats for each role based on their individual skills and preferences, much like actors in a theater. Id. at ¶ 45. By the mid-1970's, Kuklachev's cat performances were a recognized success in various countries and in the United States. Id. at ¶ 46. Excerpts from Kuklachev's shows have been shown on television stations in various countries, including the United States, and have been discussed in multiple entertainment news reports. Id. at ¶ 46. In the former USSR, Kuklachev's performances were included in children's television shows, official state concerts, and transmitted on Soviet television channels. Id. Busts and action figures of Kuklachev with his cats were created in Russia and exported to other countries. Id. Plaintiffs won numerous entertainment awards for their work. Id. at ¶ 49.

The theater in Moscow is a popular tourist destination, and is apparently the only venue in the world that specializes in performances by cats. Id. at ¶ 50.

Kuklachev first toured the United States in 1977, and returned to the United States again in 1980. Id. at ¶ 47. During plaintiffs' 2001 tour of the United States, the Arizona Republic referred to the show as "Kuklachov's*fn3 Moscow Cat Theater." Id. at ¶ 61, Ex. B.

2005 and 2006 Tours

In 2005 and 2006, Kuklachev brought his performance to the United States for an extended tour, during which there were numerous successful performances, all under the name of "Moscow Cats Theatre." Id. at ¶ 50. For these tours, Kuklachev hired defendants to assist the plaintiffs in arranging and marketing their performances. Id. at ¶ 59. There were no prior business relations between the plaintiffs and defendants. Id.

Prior to commencing the 2005 tour, Yuri Kuklachev and Gelfman Inc. signed a contract.*fn4 The contract designates Gelfman Inc. as "Promoter" and Yuri Kuklachev as "Artist," and states that the document is a "performance agreement" for the performance of "Kuklachev's Cat Theater," which is called the "Show" (Dmitri Kuklachev was not a party to this contract). Gelfman Aff. Ex. A. The duration of the contract was from September 9, 2005 to September 9, 2007. The contract states that the "Promoter engages Artist to perform the Show," and refers to the Show as a product of "[the Artist's] theater." Id. at 2. The Promoter agrees not to "contract with or promote any other performances [inside the United States] during the duration of this Agreement... that utilizes animals as the essential and predominant part of their performance." Id. The promoter "has no right to engage any other artist" to work in the Show or to be included in performances. Id. Id. at 5. The contract states that the Artist will provide the Promoter with information, photographs, and other information for the purpose of advertising the show. Id. at 6. The Promoter promises up to three minutes of video recording of the show for use in advertising. Id. The Promoter agrees to pay for living expenses, animal and veterinary expenses, travel expenses, laundry expenses, and commercial liability insurance. Id. at 7-9.

Upon Kuklachev's arrival in the United States in 2005, major news outlets in the United States published stories about Kuklachev and his many years of work with the Moscow Cats Theatre. Id. at ¶ 55. In interviews on several television shows to promote his performances, Kuklachev related the history of how he had founded the Moscow Cats Theatre thirty years prior. Id. at ¶ 57.

In 2005, the plaintiffs brought an extensive assortment of scenic stage materials and props into the United States from Russia, some of which were manufactured specifically for the Moscow Cats Theatre. Id. at ¶ 183. In late December 2006, Gelfman asked Kuklachev to store the scenic materials in the United States under Gelfman's supervision, in order to save the money required to transport the materials. Id. at ¶ 186. Defendants thereafter used some of plaintiffs' scenic materials for their shows, in particular, a background scene portraying a view of Paris out of a clown-artist's studio, which was developed and ordered by Kuklachev in Moscow for use in his expected 2007 United States Tour. Id. at ¶¶ 167, 189.

The 2007 Tour

In early 2007, plaintiffs began planning another tour of the Moscow Cats Theatre to the United States, expecting to continue their cooperation with defendants. Id. at ¶ 62. At that time, the plaintiffs learned that another cat based theatrical group was already performing in the United States under the name "Moscow Cats Theatre." Id. at ¶ 67.

The performances conducted by the Gelfmans are similar in nature to the ones performed by plaintiffs, using similar promotional methods. Id. at ¶ 74. The lead performer in defendant's show acts in a similar manner to Kuklachev, dresses in a similar costume, and wears similar makeup and hairstyle, leading to cases of mistaken identity by the audience. Id. at ¶ 74. The Gelfmans' stage set up, show themes, devices, and tricks are in many cases identical to those used by plaintiffs. Id. at ¶ 75. Examples include: using birdfeeders at stage right and left for the cats to hide in during the show, cats riding electric cars and pushing carts with other animals in them, cats jumping from a long pole into a small pillow in a clown's hands, and cats on rockinghorses. Id. at ¶ 76, 77. One particularly elaborate sketch designed and used by the plaintiffs appears in the Gelfmans' shows: a clown lies down to sleep and turns off a light, at which point an animal comes on stage and turns the light back on, angering the clown, who smashes the lamp bulb. Id. at ¶ 77. The animal returns to the stage and appears to eat the glass fragments. When the animal leaves the stage, the audience sees a light bulb shining under its tail. Id.

For their performances, defendants conducted an advertising campaign that included the terms "Moscow Cats Theatre" and "Moscow Cats" in conjunction with plaintiffs' likenesses and images and plaintiffs' Moscow Cats Theater promotional materials.

Defendant Gelfman used a poster showing an image of Dmitri Kuklachev with a cat doing a "front-paw stand" on his hand*fn5 to show priority of the use of the trademark when making his application to the United States Patent and Trademark Office. Id. at ¶ 71. This poster advertised the 2007 Los Angeles and San Francisco tours of the allegedly infringing show. Id. This poster also contained the words "World's Only" in front of the term "Moscow Cats Theatre." Id. at ¶ 72. Additional posters and other performance-related materials bear portraits of Kuklachev and other references to plaintiffs. Id. at ¶ 73. The defendants also sold copies of promotional materials, including T-shirts, key chains, and recordings of plaintiffs' performances, developed by plaintiffs. Id. at ¶ 168. These advertising and promotional materials caused actual confusion among the members of the audience, who thought that Kuklachev and his troupe were performing in Gelfman's shows. Id. at ¶ 69. Confused audience members contacted the Moscow Cats Theatre in Moscow demanding their money back for performances that were conducted by defendants. Id. at ¶ 70. Following various allegedly infringing performances, defendants and various theaters hosting performances were contacted by audience members upset with the absence of the Kuklachevs, who had been advertised as performing. Id. at ¶ 80.

A former employee of plaintiffs, defendant Vladimir Krasnolozhkin ("Krasnolozhkin"), was hired by defendants to perform in defendants' show. Id. at ¶ 64, 65. Krasnolozhkin was discharged from the Moscow Cats Theatre in the 1990s, after which he toured remote areas of Russia with a show that he falsely presented as Kuklachev's Cats Theater. Id. at ¶ 65. Krasnolozhkin, who physically resembles Kuklachev, dyed his hair and altered his dress in order to pass as Kuklachev himself. Id. Russian authorities familiar with the Kuklachev's Theatre stopped these performances. Id.

In 2005, Gelfman registered the domain name moscowcatstheatre.com for purposes of promotion and advertisement and advertisement of Kuklachev's 2005 and 2006 tours. Id. at ¶ 68.*fn6 In early 2007, defendants began using the domain to advertise the allegedly infringing performances. Id.

Upon learning of the allegedly infringing show in the United States, plaintiffs sent a cease and desist letter to Gelfman. Id. at ¶ 79. Gelfman continued to use the trademark and likenesses of plaintiffs for advertizing, and new performances were scheduled by defendants following the letter. Id.

Trademark Applications

Neither plaintiffs nor defendants have a registered trademark for the "Moscow Cats Theatre" mark. On January 4, 2007, a few days after plaintiffs left the country following the 2006 tour, Gelfman filed a trademark application with the United States Patent and Trademark Office, seeking to register the "Moscow Cats Theatre" trademark in his name. Id. at ¶ 63. In August and September of 2007, plaintiffs initiated proceedings before the Trademark Trial and Appeal Board of the United State Patent and Trademark Office, opposing the registration of the "Moscow Cats Theater" trademark by Gelfman. Id. at ¶ 81. Both oppositions are currently pending before the Board. Id. Kuklachev has also applied for registration of his common law rights in the "Moscow Cats Theater" trademark, which registration is pending. Id. at ¶ 82.

DISCUSSION

I. Jurisdiction

This Court has federal question jurisdiction over this the plaintiffs' Lanham Act and Copyright Act claims, pursuant to 15 U.S.C. § 1121, 28 U.S.C. § 1338 and 28 U.S.C. § 1331, and supplemental jurisdiction over the state law and common law claims, pursuant to 28 U.S.C. § 1367.

II. Standing

This motion to dismiss was filed on behalf of defendants Gelfman Inc., Mark Gelfman, and Yanis Gelfman (for the purposes of this section only, "movants"). There is no indication that their counsel, James F. Woods, represents the other defendants in this action, and it appears from other submissions in this action that he does not. Movants assert that various claims listed in the complaint do not apply to defendant venues, and as such must be dismissed. Movants also make substantive arguments on behalf of venues sued by plaintiffs, particularly with regards to contributory trademark infringement. Additionally, movants protest the plaintiffs' use of the term "the defendants" to refer at times to movants and at other times to all defendants in this action, stating that these references make the claims ambiguous.

Movants do not have standing to move on behalf of other defendants to this action. See Ashcroft v. Dep't of Corr., 2007 U.S. Dist. LEXIS 49079 at * 24-26 (W.D.N.Y. July 6, 2007). This opinion will discuss only claims impacting the movants, and will only dispose of claims with respect to them.

III. Standards

12(b)(6) Standard

When considering a motion to dismiss under Rule 12(b)(6), a trial court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation omitted), although "mere conclusions of law or unwarranted deductions" need not be accepted. First Nationwide Bank v. Helt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994). Indeed, conclusory allegations "will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002). On a motion to dismiss, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).

To survive a 12(b)(6) motion to dismiss, the allegations in the complaint must meet the standard of "plausibility." See Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1970; 550 U.S. 544; 167 L.Ed. 2d 929 (2007). Although the complaint need not provide "detailed factual allegations," id. at 1964; see also ATSI Commc'ns v. Shaar Fund, Ltd., 493 F.3d 87, 98 n. 2 (2d Cir. 2007) (applying the standard of plausibility outside Twombly's antitrust context), it must "amplify a claim with some factual allegations... to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-158 (2d Cir. 2007) (emphasis in original) (holding that the plaintiff's complaint adequately alleged the personal involvement of the Attorney General because it was plausible that officials of the Department of Justice would be aware of policies concerning individuals arrested after 9/11). The complaint must provide "the grounds upon which [the plaintiff's] claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, 493 F.3d at 98 (quoting Bell Atlantic, 127 S.Ct. at 1965).

9(b) Standard

Rule 9(b) of the Federal Rules of Civil Procedure requires that the circumstances constituting fraud or mistake shall be stated with particularity. Fed. R. Civ. P. 9(b). However, "[m]alice, intent, knowledge, and other conditions of mind of a person's mind may be alleged generally." Id. The rule is "intended to ensure that each defendant is provided with reasonable detail concerning the nature of his particular involvement in the alleged fraud." The Equitable Life Assurance Society v. Alexander Grant & Co., 627 F.Supp. 1023, 1028 (S.D.N.Y.1985). Fraud allegations in a complaint therefore must: "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Although the scienter requirement need not be plead with particularity, "[i]n order to avoid abuse... plaintiffs are required to allege facts that give rise to a strong inference of fraudulent intent." Campaniello Imports, Ltd. v. Saporiti Italia S.P.A., 117 F.3d 655, 663 (2d Cir. 1997) (internal quotation marks and citations omitted). The requisite "strong inference" of fraud may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness. Shields, 25 F.3d at 1128.

In cases involving multiple defendants, Rule 9(b) requires that the pleading identify the nature of each defendant's participation in the alleged fraud. DiVittorio v. Equidyne Extractive Industries, 822 F.2d 1242, 1247 (2d Cir. 1987); Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir. 1986).

12(e) Standard

Rule 12(e) allows for an order requiring a more definite statement when the pleading is so vague that the opposing party cannot reasonably be required to respond. Whether to grant a motion for a more definite statement is in the discretion of the court. 5A CHARLES A. WRIGHT& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1377 (2d ed. 1990); see also Vaden v. Lantz, 459 F.Supp.2d 149, 150 (D. Conn. 2006). For a more definite statement to be warranted, the complaint must be "so excessively vague and ambiguous as to be unintelligible and as to prejudice the defendant seriously in attempting to answer it." Kok v. First Unum Life Ins. Co., 154 F.Supp.2d 777, 781-82 (S.D.N.Y. 2001). The rule "is designed to remedy unintelligible pleadings, not to correct for lack of detail." Dunlop-McCullen v. Local 1-S RWDSU-AFL-CIO, 1994 U.S. Dist. LEXIS 12245 at *2 (S.D.N.Y. September 1, 1994). When a complaint satisfies Rule 8, then the Rule 12(e) motion should be denied. Vapac Music Publ'g, Inc. v. Tuff'N'Rumble Mgmt., 2000 U.S. Dist. LEXIS 10027, *6 (S.D.N.Y. July 19, 2000). Federal Rule of Civil Procedure 8 merely requires "a short and plain statement of the claim." The preferred course is to encourage the use of discovery to inform the defendant of the factual basis of the complaint. Greater New York Auto Dealers Ass'n v. Environmental Systems Testing, Inc., 211 F.R.D. 71, 77 (E.D.N.Y. 2002).

IV. A More Definite Statement is Not Required

Defendants argue that Count I of the complaint, stating various Lanham Act claims, including trademark infringement, false representation, and damage to business reputation, is ambiguous and an improper combination of different theories of liability "that makes answering and defending... virtually impossible." Woods Decl. at ¶ 29. Defendants also argue that plaintiffs' references to different marks throughout the pleadings, such as "Moscow Cats Theatre" and "Cats Theatre," is unclear and ambiguous. Id. at ¶ 31. Defendants also argue with respect to numerous claims that the claims as to co-defendants in this action are unclear, a claim that defendants lack standing to make.

Defendants have not come close to showing that the complaint is "so excessively vague and ambiguous as to be unintelligible." Kok, 154 F. Supp.2d at 782. The complaint clearly sets out distinct claims and the laws pursuant to which claims are made. The claims for trademark infringement, false representation, and damage to business reputation all arise under the same section of the Lanham Act and are governed by similar tests under caselaw. There is no inherent difficulty in defending against the first cause of action. Plaintiffs' reference to the highly similar terms "Moscow Cats Theatre" and "Cats Theatre" does not render plaintiffs' claims ambiguous. Defendant's motion to dismiss pursuance to Rule 12(e) is denied.

V. Arbitration*fn7

Defendants claim that this court lacks subject matter jurisdiction over plaintiffs' claims, due to the existence of an arbitration clause in the contract between Yuri Kuklachev and Gelfman, Inc. (the "Contract"), which states that "[a]ll claims arising from this Agreement shall be settled by an arbitrator." Contract at § 10(A). Defendants argue that the allegations underlying plaintiffs' complaint "touch matters" governed by the contract, thereby triggering the arbitration clause.

The Federal Arbitration Act ("FAA") provides that "an agreement in writing to submit to arbitration an existing controversy... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Where a contract contains an arbitration clause, there is a "presumption of arbitrability." AT&T Techs., Inc., v. Communications Workers of America, 475 U.S. 643 (1986); Ace Capital Re Overseas Ltd. v. Cent. United Life Ins. Co., 307 F.3d 24, 28 (2d Cir. 2002). In determining whether a contract contains an agreement to arbitrate, and whether that arbitration agreement applies to a given dispute, doubts must be resolved in favor of arbitrability. Id. at 650; Concourse Village, Inc. v. Local 32E, 822 F.2d 302, 304 (2d Cir. 1987). However, "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 252 F.3d 218, 224 (2d Cir. 2001) (quoting AT & T Techs., 475 U.S. at 648). A court asked to stay proceedings pending arbitration must make the following determinations: (1) whether the parties agreed to arbitrate; (2) the scope of the arbitration agreement; (3) whether Congress intended the federal statutory claims asserted by the plaintiff to be nonarbitrable; and (4) if not all of the claims in the case are arbitrable, whether the court should stay the balance of proceedings pending arbitration. See Genesco, Inc. v. T. Kakiuchi & Co., Ltd, 815 F.2d 840, 844 (2d Cir. 1987). The parties do not contend that Congress intended the federal claims at issue here to be non-arbitrable. I proceed to consider the remaining determinations.

A. Agreement to Arbitrate and Estoppel

There is no dispute that Yuri Kuklachev and Gelfman, Inc. agreed to arbitrate disputes arising from their contract. The parties differ as to whether other parties to this action are so bound. Plaintiffs assert that Dmitri Kuklachev, being not a party to the contract, cannot be bound by its arbitration clause. Plaintiffs further argue that Mark Gelfman and Yanis Gelfman were not parties to the contract, and therefore Yuri Kuklachev did not agree to arbitrate disputes with them.

"[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Louis Dreyfus Negoce, 252 F.3d at 224. However, a non-signatory may be estopped from resisting arbitration if he has "derived other benefits under the agreement containing the arbitration clause." Smith/Enron Cogeneration Ltd. P'ship v. Smith Cogeneration Int'l, Inc., 198 F.3d 88, 98 (2d Cir. 1999); see also American Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349 (2d Cir. 1999). Furthermore, "the signatory to an arbitration agreement is estopped from avoiding arbitration with a non-signatory when the issues the non-signatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed." Contec Corp v. Remote Solution, Co., 398 F.3d 205, 209 (2d Cir. 2005) (internal quotation marks and citation omitted). Additionally, "the acts of employees of a party to an arbitration agreement are arbitrable as long as the challenged acts fall within the scope of the [contract]." Mosca v. Doctors Assocs., 852 F. Supp. 152, 155 (E.D.N.Y. 1993).

There is no indication that Dmitri performed in any of the shows pursuant to the contract. It appears that the plan was for Dmitri to perform in the 2007 tour that did not take place. Affidavit of Dmitri Kuklachev dated October 21, 2008, at ¶ 14 ("Dmitri Aff."). Defendants state that Dmitri Kuklachev is required to arbitrate as an employee of Yuri Kuklachev. However, the record is unclear as to the existence of such an employment relationship. In any case, the case cited refers to the "acts of employees;" the acts of Dmitri Kuklachev are not at issue in this case. Mosca, 852 F. Supp. at 155. Defendants suggest that Dmitri Kuklachev is a party to the contract as one of the "members" of Yuri Kuklachev's troupe, but the contract does not indicate that 'members' are contracting parties. See Contract § 1. Defendants' only plausible ground for estoppel*fn8 is their argument that Dmitri Kuklachev benefitted under the agreement when he gained publicity and exposure in 2005, at which time he made media appearances to promote his father's show. Dmitri Kuklachev states in his affidavit that he appeared on national television and was interviewed by journalists from leading American media publications, including the Boston Globe and the New York times. Dmitri Aff. at ¶ 14. Defendants do not state specifically that Gelfman, Inc. arranged these appearances, but they do state that Dmitri Kuklachev gained benefits "through the publicity efforts" of Gelfman, Inc., made pursuant to the contract's publicity clause. It is unlikely that Dmitri Kuklachev would have arranged his own media appearances. Accordingly, I conclude that Gelfman, Inc.'s actions conferred a benefit on Dmitri Kuklachev. Furthermore, to the extent that the Moscow Cats Theatre gained favorable reviews during the 2005 and 2006 tours, Dmitri Kuklachev benefitted as a person with an economic stake in the theater. See Dmitri Aff. at ¶ 17 (describing the Moscow Cats Theatre as "my theater"). To the extent that claims must be arbitrated, Dmitri Kuklachev is estopped from resisting arbitration and continuing in litigation.

Regarding Mark and Yanis Gelfman, it is clear that the claims made by plaintiffs against Mark and Yanis Gelfman overlap substantially with claims made against Gelfman, Inc. The person who carried out the obligations of Gelfman, Inc. pursuant to the contract was Mark Gelfman, and Yanis Gelfman was his employee. Plaintiffs have made no distinction between Gelfman, Inc. and Mark Gelfman in their complaint. If any of plaintiffs' claims against Gelfman, Inc. must be arbitrated pursuant to the contract, those claims as they pertain to Mark and Yanis Gelfman are intertwined with the contract between Yuri Kuklachev and Gelfman, Inc. See Contec Corp, 398 F.3d at 209. Yuri Kuklachev is estopped from avoiding arbitration with Mark Gelfman and Yanis Gelfman.

B. Scope of the arbitration clause*fn9

1. The Arbitration Clause is Broad

If it is determined that parties agreed to arbitrate, a court must then determine the scope of the arbitration agreement. Oldroyd v. Elmira Sav. Bank, 134 F.3d 72, 76 (2d Cir. 1998). An arbitration clause may be broad or narrow. The phrase "arising under" is the only phrase recognized by the Court of Appeals to be a narrow arbitration clause. Louis Dreyfus Negoce, 252 F.3d at 225. "[T]he phrase 'arising from,' as opposed to 'arising under,' in an arbitration clause suggests a broad scope." ACE Capital Re Overseas Ltd. v. Cent. United Life Ins. Co., 307 F.3d 24, 32 (2d Cir. 2002) (citing Louis Dreyfus Negoce, 252 F.3d at 226-227). ...


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