United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER, District Judge.
case arises from the alleged breach of contracts to book a
venue in Anderson, Indiana for a live concert entitled
“I love the 90s: The Party continues.” Plaintiff
Letom Management, Inc. (“Letom”) alleges that
defendants Hoosier Park, LLC (“Hoosier Park”),
Centaur Gaming, LLC (“Centaur Gaming”), and
Hoosier Racing and Casino, LLC (“Hoosier Racing and
Casino”) breached their express or constructive
contractual obligations by (a) “cancel[ing] the
contract, ” (b) failing to pay Letom a guaranteed
amount, and (c) refusing to arbitrate. Dkt. 18
(“Pl's Opp.”) at ¶ 8.
now is a motion to dismiss by Hoosier Park, the only
defendant whom Letom has served. Hoosier Park argues that
personal jurisdiction over it is lacking, requiring dismissal
under Federal Rule of Civil Procedure 12(b)(2). On the
merits, Hoosier Park disputes that the agreements between
itself and Universal Attractions Agency
(“UAA”)-the entity whose interests Letom seeks to
vindicate in this lawsuit-were enforceable. On its present motion
to dismiss, Hoosier Park argues that, even if the agreements
were enforceable, they do not support exercise of personal
jurisdiction, because (1) it is an out of state entity and
(2) the contracts at issue were initiated by a non-New York
plaintiff and involved services to be performed entirely
outside this state. Hoosier Park argues that neither the
jurisdictional requirements of New York Civil Practice Law
and Rule § 301 or § 302, nor those of federal due
process, are met.
reasons that follow, the Court agrees, and grants Hoosier
Park's motion to dismiss the claims against it under Rule
is a New York-based corporation with its principal place of
business in New York, Dkt. 1 (“Compl.”)
¶¶ 8-11. Letom and UAA, on whose behalf Letom
brings this lawsuit, Dkt. 14 (“Def's Brief”)
at 1, have a common CEO, Jeff Allen, Allen Decl. ¶ 1.
Park is an Indiana limited liability company with its
principal place of business in Indiana. Compl. ¶ 12;
Head Decl. ¶ 6. Letom has alleged that Hoosier Park does
business as Hoosier Park Racing, LLP and Hoosier Park Racing,
alleges that the other defendants to this suit, Centaur
Gaming and Hoosier Racing and Casino, are also
“domestic corporation(s)” with “principal
office(s)” in Indiana. Compl. ¶ 12. However,
despite the fact that the Complaint was filed on May 19,
2017, more than five months ago, Centaur Gaming and Hoosier
Racing and Casino do not appear to have been served. They are
not parties to the instant motion.
September 9, 2016, a UAA representative, Adam Zagor, emailed
Adam Head, the Entertainment Director for Hoosier Park,
seeking to book one of Hoosier Park's venues in Indiana.
Head Decl. ¶¶ 9-10; Dkt. 15-1 (“Head Decl.
Ex. A”). Zagor, Head, and another UAA representative,
Ross Brandes, agreed to meet in early October 2016 in
Nashville, Tennessee during the International Entertainment
Buyers Association Conference to discuss the details of the
transaction. Head Decl. Ex. A.
Tennessee, Head met with an unspecified “UAA
representative, ” who pitched the idea of Hoosier
Park's hosting a concert entitled “I Love the
90's: The Party Continues.” Head Decl. ¶ 11.
On November 10, 2016, Head sent UAA an offer sheet.
Id. at ¶ 12. After the initial offer, UAA and
Hoosier continued negotiating the contracts' terms via
phone and email. Id. at ¶ 13. On January 11,
2017, after additional back and forth, a second term sheet
was sent from Hoosier to UAA. Id.
March 1, 2017, Brandes emailed Head, alerting him that a
potentially similar concert, entitled “I Love the 90s[,
] . . . would be playing at The Lawn @ White River State
Park” on July 16, 2017. Dkt 18-1 (“Allen Decl.
Ex. A”) at 9. Head said that this was not a problem.
same day, Head received two contracts from UAA dated February
27, 2017. Head Decl. ¶ 14; Pl's Opp. ¶ 2. Head
made alterations to the contracts, signed them, and sent them
back. Of note here, Head changed from New York to Indiana the
(1) choice of law provisions, (2) locations in which the
contracts were to be entered, and (3) locations for
arbitration. See Head Decl. Exs. 4 & 5. Payments
for each were to be due in two parts, with the first round
due on July 12, 2017 and the second due just after the
concert. Id. UAA appears to have signed neither
contract. Id. For the limited purposes of this
motion, crediting plaintiffs' claim of a binding
agreement, the Court assumes that the contracts were fully
April 28, 2017, Head emailed Jeff Epstein, a UAA employee, to
alert him that Adam Kallick, a Hoosier Park employee who had
moved to Hoosier's corporate office, would be calling him
to discuss the August 12, 2017 show. Allen Decl. Ex. A at 4.
4, 2017, Epstein reminded Head about the White River concert,
and suggested that if Hoosier Park wished to cancel the
concert at its venue because of low ticket sales and
marketing issues, it should alert UAA by the following day.
Id. at 8. Epstein explained that “once
production [was] booked and paid for, [UAA would] not be in
any position to offer a reduction or accept a
5, 2017, Head emailed Epstein “accept[ing] [UAA's]
offer to cancel and/or negotiate a price reduction, and by
[its] email withdr[ew] the offer it made on March 8,
2017.” Id. at 5. Head further noted that he
had not, as of that day, received a written acceptance of his
offer. Id. Head's email explained Hoosier
Park's change of course, noting, inter alia,
that the concert scheduled for The Lawn had been relocated to
a closer and larger venue; that he had not been previously
known of that relocation; and that it would necessitate
higher marketing expenditures. Id. at 5-6.
Head's email set out terms on which Hoosier Park would
nevertheless agree to host the concert. Id. at 6.
series of back and forth emails ensued in which Head and
Allen discussed a reduced payment to UAA and whether the
concert would go forward. Id. at 10-11, 17-19,
25-26, 29-30, 38-39. On May 9, 2017, Allen emailed Head
alleging that Hoosier had breached their contract, that he
was cancelling the concert date, and that he would sue.
Id. at 49. No payments at any point were made by
Hoosier Park to UAA.
Park has not transacted other business with UAA or Letom.
Head Decl. ¶ 17.
19, 2017, Letom filed its complaint claiming breach of
contract. Dkt. 1 (“Compl.”).
24, 2017, Hoosier Park filed a motion to dismiss for lack of
personal matter jurisdiction, Dkt. 13, and a supporting
memorandum, Dkt. 14 (collectively, “MTD”). On
August 7, 2017, Letom filed a memorandum in opposition On
August 14, ...