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ART Assure Ltd., LLC v. Artmentum GMBH

United States District Court, S.D. New York

November 4, 2014

ART ASSURE LTD., LLC, Plaintiff,
v.
ARTMENTUM GMBH, et al., Defendants.

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge.

Plaintiff Art Assure Ltd., LLC ("Art Assure") brings this action against Defendants Artmentum GmbH ("Artmentum"), International Corporate Art Consulting ("ICAC"), DZ PRIVATBANK (Schweiz) AG ("DZ Privatbank"), and five individual Defendants, alleging breach of contract and fraud in connection with an unconsummated sale of artwork. Defendants move to dismiss the Complaint for lack of personal jurisdiction. As Plaintiff has failed to make a prima facie showing to establish personal jurisdiction over Defendants, the Motion to Dismiss is granted.

I. BACKGROUND

A. PROCEDURAL HISTORY

On January 31, 2014, Plaintiff filed the Complaint in this action in New York state court. On April 30, 2014, Defendant DZ Privatbank received the Summons and Complaint. On May 27, 2014, DZ Privatbank timely removed the action to federal court. 28 U.S.C. § 1446(b).

B. RELEVANT FACTS

The following facts are taken from the Complaint and its supporting materials, construed in the light most favorable to the plaintiff. See S. New Eng. Tel. Co. v. Global NAPs Inc. , 624 F.3d 123, 138 (2d Cir. 2010).

Plaintiff Art Assure is a limited liability company, incorporated in Delaware, and maintains its principal place of business in New York. Art Assure finances the sale and purchase of valuable artwork. Defendant Artmentum is a corporation, incorporated in Switzerland, and maintains its principal place of business in Switzerland; Artmentum sells valuable artwork. Defendant Michael Schulz is the CEO of Artmentum, and Defendants Kevin Wynn and Klaus Maciejewski are Artmentum employees. Defendant Thomas Burkhalter is the "attorney and primary representative of Artmentum, " and Defendant Hans-Bert Moll is an Artmentum agent. Defendant ICAC is an adviser to Artmentum; Defendant Eliane Pidoux is ICAC's principal. Defendant DZ Privatbank is a bank retained by Artmentum. The Complaint alleges that all Defendants maintain places of businesses in Switzerland, and Defendants' Notice of Removal avers that Defendants are citizens and domiciliaries of various countries in Europe.

In May 2013, the parties began negotiations concerning Art Assure's prospective purchase of a collection of nineteenth- and twentieth-century artwork then owned by a Japanese bank. On June 29, 2013, Art Assure and Artmentum executed a Memorandum of Understanding ("MOU") to govern the terms of the sale. The MOU provided, inter alia, that:

• Art Assure would send to DZ Privatbank's Zurich office a letter formally expressing its interest in the sale and confirming that it had the financial capability to consummate the transaction.
• Art Assure, in cooperation with Artmentum, would conduct due diligence to confirm the "condition, title, provenance, authenticity and historical data o[f] all the art pieces" in Japan.
• After Art Assure deposited the full purchase price with DZ Privatbank's Zurich office, the collection would be transported to Switzerland.
• The closing of the transaction would take place in Switzerland.
• The MOU would be "governed by, and interpreted in accordance with, the substantive ...

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