The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
In this action, Plaintiff National Audubon Society, Inc. ("Audubon") alleges that Defendant Sonopia Corporation breached a three-year license agreement by failing to pay Audubon minimum outstanding guaranteed royalties and advertising/rental revenues it is obligated to pay under the agreement. (Cmplt. ¶¶ 16--19) Audubon's Complaint seeks $135,000 in damages, plus interest, attorneys' fees, and costs. Audubon has not yet served the Summons and Complaint on Sonopia.
Before this Court is Audubon's February 26, 2009 ex parte motion for an order of attachment, pursuant to CPLR § 6201 et seq., "against all deposits Sonopia has with Silicon Valley Bank, up to $150,000." (Notice of Motion) Audubon seeks an order directing the United States Marshals in this District and the Northern District of California to levy upon all sums Sonopia has on deposit at the Silicon Valley Bank, whether held here or in California.
For the reasons stated below, Audubon's application is DENIED.
Audubon alleges that on June 25, 2007, it entered into a three-year license agreement (the "Agreement") with Sonopia wherein Sonopia received a license to use Audubon's trademarks, membership list, and other intellectual property to market cellular telephone service subscriptions and supporting equipment to Audubon Society members. (Cmplt. ¶¶ 6--7; Pltf. Br. 1) Under the Agreement, Sonopia agreed to pay Audubon $25,000 annually -- or $75,000 over the three-year term -- for advertising space in Audubon Magazine and for use of Audubon's membership file. (Pinto Decl., Ex. 1, at Ex. D) Audubon further alleges that the Agreement required Sonopia to pay Audubon minimum guaranteed royalties of $25,000 annually, or a total of $75,000 during the Agreement's three-year term. (Cmplt. ¶ 8; Pltf. Br. 2) Of the $150,000 allegedly owed to Audubon under the Agreement, Sonopia has paid only the initial $15,000 annual royalty advance payment. (Cmplt. ¶ 9) Sonopia made this payment by drawing a check, dated August 24, 2007, on its account with Silicon Valley Bank, which is based in Santa Clara, California and which allegedly has an office in New York. (See Pinto Decl. ¶¶ 8--9; id., Ex. 2; DeLaurentis Decl. ¶ 21)
On April 10, 2008, mocoNews.net attributed the following statements to Sonopia's Chief Executive Officer, Juha Christensen:
Reports that Sonopia was shutting down spread like wildfire yesterday, but its founder Juha Christensen said today it's not true.
The company is still alive, but drastically scaling back its business and essentially hibernating until the U.S. M[obile ]V[irtual ]N[etwork ]O[perator] market turns around. Sonopia has eliminated all of its U.S. employees from its Menlo Park, Calif. headquarters. Even Christensen holds the unpaid position of Chairman. In their development offices in Ukraine, they have 30 people or half as many as before. (DeLaurentis Decl., Ex. 4)
Also in April 2008, a former employee of Sonopia told Sandra Pinto, Audubon's Director of Licensing, that Sonopia had ceased operations. (Pinto Decl. ¶ 10) Pinto then spoke with Christensen, who purportedly told Pinto that Sonopia had "'ceased operations,'" "was engaged in an 'orderly shutdown,'" was "'unable to fulfill its obligations,'" had no assets, and had been released from its liabilities. (Id. ¶¶ 11--14) Pinto claims that she immediately informed Christensen that Audubon "would not be releasing Sonopia from its obligations under the Agreement." (Id. ¶ 14)
On May 19, 2008, Audubon sent Sonopia a letter "exercis[ing] [Audubon's] right to terminate the Agreement" "[p]ursuant to Section 8(a)(iv) of the Agreement. . . ." (Id., Ex. 3) Citing Section 5(b) of the Agreement, the termination letter "demand[ed] immediate payment of all of Sonopia's payment obligations" -- which Audubon claimed amounted to $135,000 -- and "reserve[d] [Audubon's] right to claim interest on such amount." (Id.)
According to Audubon, Sonopia continues to operate in the Ukraine, and its website (www.sonopia.com) remains operational. (Pltf. Br. 2--3) Although this website lists an office at 1560 Broadway, Suite 315, New York, New York, Audubon's counsel's visit to this location in January 2009 revealed ...