COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP, Al J. Daniel, Jr., Esq., New York, New York, Attorney for Plaintiff DAVID BONSEY.
KORNSTEIN WEISZ WEXLER & POLLARD, LLP, Daniel J. Kornstein, Esq., New York, New York, Attorney for Defendant MARY LOUISE KATES.
ROBERT W. SWEET, District Judge.
Defendant David Bonsey ("Bonsey") moves the Court to dismiss Plaintiff Mary Louise Kates's ("Kates") First Amended Complaint (the "Complaint") for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2) and for failure to state a claim under Fed.R.Civ.P. 12(b) (6), and to dismiss or transfer for improper venue under Fed.R.Civ.P. 12(b)(3) and 28 U.S.C. § 1104(a). Plaintiff, in turn, cross-moves for leave to amend the Complaint.
For the foregoing reasons, Defendants' motion to dismiss is granted and Plaintiff's leave to amend is denied.
I. PRIOR PROCEEDINGS
The original complaint was filed on April 24, 2013, and the First Amended Complaint, filed two days later, was served on Plaintiff in California on May 1, 2013.
Defendant served interrogatories and document requests on Plaintiff's counsel on June 24, 2013, and Defendant served answers to the interrogatories and produced 58 pages of documents responsive to Defendant's requests on July 24, 2013. (See Declaration of David Bonsey, "Bonsey Decl."; ¶¶ 13-14.)
Plaintiff was a citizen and resident of Massachusetts when this action was filed on April 24, 2013, but moved to Manhattan shortly thereafter and has been a resident and citizen of New York since June 1, 2013. (Compl. ¶ 7.); (see Bonsey Decl. ¶ 5.) Plaintiff is a trained violinmaker and musician, and an expert in the field of fine and antique string instruments, including making regular appearances as an appraiser on the Antiques Road Show television series. (Compl. ¶ 7.) Defendant is domiciled in California, where she has lived since moving from Maryland in April of 2013. (Compl. ¶ 9.) Defendant is a former interior designer and widower of Stephen Kates, a well-known cellist and professor at the Peabody Conservatory of Music of Johns Hopkins University in Baltimore, Maryland. (Compl. ¶ 9.)
The dispute arises over an alleged agreement over a rare cello (the "cello"). In August 2005, Plaintiff placed the cello on loan to the Department of Musical Instruments in the Metropolitan Museum of Art in New York City. Plaintiff told Defendant that she was still interested in selling the cello and provided him with photographs and provenance documents which would be of interest to potential purchasers. (Compl. ¶¶ 19-20.) During this time, Defendant found several potential purchasers and, with Plaintiff's express permission, arranged for several potential musical artists and other potential purchasers to examine the instrument at the Metropolitan Museum and in one case at the law offices of Plaintiff's attorney in Manhattan. (Compl. ¶¶ 20; 25.)
In August 2010, Plaintiff alleges that he and Defendant "orally agreed" on the telephone that he would be her exclusive agent for the showing and sale of the cello "until mutually agreed otherwise." (Compl. ¶ 21.) According to Plaintiff, the parties also orally agreed that Plaintiff, in return for his services, would receive a 10% commission of the sales price. The Complaint alleges that the parties intended to, but never did, reduce the oral agreement to writing. Toward that end, in August 2010, Plaintiff sent a written Exclusivity Agreement to Defendant for the purpose of "memoraliz[ing] the terms" of their alleged oral agreement. (Compl. ¶ 22.) Defendant did not sign the written agreement, but said that she sent it to her attorney, who later claimed it was lost. (Compl. ¶¶ 21-22.) Despite this, Plaintiff believed he was and continued to act as Defendant's exclusive agent under the alleged oral agreement. In fact, in September of 2010, Plaintiff recruited the Pei-Calhoun foundation as a potential buyer. Plaintiff's attorney drafted an option agreement between Pei-Calhoun and Defendant, which included Plaintiff's representation that "the only agent or broker that Seller [Defendant] has used in connection with the sale contemplated by this agreement is David Bonsey and [Defendant] agrees that Seller will be solely responsible for payment of any commission payable to him." (Compl. ¶ 3(b).) Defendant's attorney, Mr. Varet, sent copies of this draft to both parties. Ultimately, the foundation withdrew from the deal due to an illness of one of its principals, but Plaintiff still arranged for Defendant to be reimbursed for the $5, 000 in legal and accounting expenses connected with the transaction. (Compl. ¶ 26.)
On April 26, 2011, Plaintiff was contacted by another potential buyer who was agreeable to the asking price, but wanted to examine the cello because he'd hear a rumor that the cello had a crack on its back. Plaintiff informed Defendant and Mr. Varet of this potential buyer's request, and Mr. Varet responded that Defendant "did not want to show" the cello at that time. (Compl. ¶¶ 28-31.) However, Defendant personally sent an email to Plaintiff on April 29, 2011 directing him to "[p]lease dispel any false and nasty rumors regarding any cracks whatsoever. The cello was in perfect condition when put on loan with the Met and was verified as such." ( Id. ) Defendant also directed Plaintiff arranged to arrange for the potential buyer to examine the cello at the Museum in New York City on or about May 2, 2011. (Compl. ¶ 31.) Biddulph, the potential buyer, continued to pursue the cello through Plaintiff, requesting documents regarding the cello and asking for contact information for Mr. Varet on May 25, 2011, which was provided the next day. Biddulph confirmed receipt of the documents in early June 2011. (Compl. ¶ 25.)
A few weeks later, still in June of 2011, Biddulph told Plaintiff that the cello had been sold, and asked if Plaintiff had been well treated in connection with the sale of the cello. (Compl. ¶ 34.) As a result of Biddulph's statement, Plaintiff believes that Defendant sold her cello to one of Biddulph's clients in May or June of 2011. (Compl. ¶ 36.) Plaintiff thus alleges that the buyer was "introduced to Defendant through Plaintiff's dealings" and owes Plaintiff commission on the sale. ( Id. ) In August 2011, Plaintiff asked Mr. Varet to confirm whether Defendant had sold the cello; Mr. Varet did not confirm or deny the sale, but asked Plaintiff to cease any further dealings with third parties regarding the cello. ...