Latimore v Fuller
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Latimore v Fuller 2013 NY Slip Op 30680(U) April 2, 2013 Sup Ct, New York County Docket Number: 109456/11 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON41812013 [* 1] PIIESEN'I' : DONNA M. MILLS Justice . __ . - .. SONYA WIlI7'7'h'N L A TIMORE, -V- KIM E. FULLER, et al., . " - The following papers, numbcrcd 1 Notice of MotionlOrder to Show Cau Answering hlfidavits- Lxhibits Replying Affidavits ROS S-MOTION : Upoil the foregoing I)EC:IDT7D IN ACCOIWANC'E WITH ATTACFlBD MIiMORANJlUM DECISION. 4 (q13 Dated: Chcck one: ~. f;INA I, DISl'OSI'l'ION [* 2] Plaintiff, Index No. 109456/11 -against- KIM E. I'ULLER, MIA'I'TA liAJ SMITH, TTIE SMITH I IAJ GROIJP, BEN SILVERMAN and ELMA KIM, Defendants. ________________________________________------------------~~--- DONNA MILLS, J. : Defendant Elma Kiln (Kim) moves for an for sanctions. Plaintiff cross-moves for lcave to amend her complaiiit and for an order disqualifying Kim's couiiscl. 'l'his is an action alleging caiises of action in fraud, breach of contract, brcacli of fiduciary duty, conversion, unjust enrichment and tortious contractual interference. Plaintiff alleges that sometime in February 2004, shc spoke to defendant Kim E. Fuller (Fuller), who is a partner in a promotional company, McCrcady & Fuller, about an idea for a television program which iiivolved dieting, hoping that Fuller would be interested. Plaintiff allcgcs that she was able to contact Fuller through dekndant Miatta Haj Smith (Smith). On October 1 8, 2007, plaintif'f'cvmmenced an action for federal copyright idringement against NBC Universal, Inc. d/b/a Universal l'clcvision Distribution (NBC), McCready & Fuller, and Fuller, individually and as a partner of McCready & Fuller, in b'ederal District Court, Southerii District of New York (the Federal Action). Essentially, plaintiff alleged that the NBC program, Thc Biggest 4,oscr, was based on a treatment she had provided to Puller. At a pre-trial dcposition, plaintiff testified that she spoke to Fuller about thc trcatrnent, but claimed not to [* 3] know any subscqueiit actions made by him concerning the treatment. At his pre-trial dcposition, Fuller testified that he did not follow up with plaintif ¬, and did not give her a contract, or speak to her, until after thc commencement of the Fcdcral Action. After the depositions, NBC moved for dismissal through summary judgment. The Federal Ilistrict Court granted the motion, based upon the testimony of Fuller and Smith, who dcnied communicating with NHC prior to the suit s commencement. Plaintif ¬ asscrts that the testimony and sworn affidavits from these individuals that formed the basis of NBC s motion are fraudulent. Plaintiff claims that she is seeking an appeal in the Federal Circuit Court. Subsequently, Smith and defendant Smith Haj Group moved for dismissal in the present action, arguing that there was improper service of process, that thc claim for fraud is not actionable, that thc claims for conversion and unjust enrichment arc untimely, and that this case is precluded by collateral estoppel and res judicata. This court granted their motion, and dismissed the complaint as against these partics on the grounds that plaintiff failed to make out a claim for fraud and that the claims for conversion and uiijust enrichment were untimely. Now, deferidant Kim is moving for dismissal on similar grounds, lack of substance in thc fraud claim, and untimeliiiess in the conversion aiid unjust enrichment claims. In addition, Kim moves for dismissal on the groiuid of lack of personal jurisdiction. Kim contends that shc has no jurisdictional contacts with Ncw York. Shc alleges the following: she owns no real property here, has no bank accounts here, has no mailing address here, has no agent for service of process and was not served here. She does iiot regularly do business or engage in any persistcnt course of conduct here, or derive any reveniie for goods used or services consumcd here. 2 [* 4] Kim argues that she did not speak to plaintiff until the commenceincnt of the Fedcral Action and lacks any prior knowledge of plaintiff s treatment. She claims to have worked as an executive assistant for 3 Ball Productions (3 Ball) in 2004, but did not participate in any substantive discussions about The Biggest Loser program (3 Ball rendered some services on this series as of 2004, nonc of which were performed iii New York). Kim also mows for sanctions on the ground that plaintiffs counsel is bringing a lrivolous suit against her. She contends that there is absolutely no merit in the claims brought against her and, like defendant Smith, an order granting dismissal as to her is incvitable. Plaintiff opposes the motion to dismiss and for sanctions. She also cross-moves for lcave to m e n d her complaint and for an order disqualifying Kim s counsel. A stipulation was executed by the parties wherein ; second aineiided complaint was submitted to replace tlic first I amended complaint. Plaintiff argues that discovery on the issue of whether Kim is subject to Ncw York jurisdiction is waimited and at this stage, plaintiff may take a prima facie showing of jurisdiction solely by allegations. With respect to allegations, plaintiff contends that Kim is subjcct to jurisdiction pursuant to this state s long-arm statute. The complaint alleges that Kim travclcd to New York for several meetings to iicgotiate and possibly execute a contract with Fuller andlor Smith. The meetings allegedly constitute transacting business, i s . preliminary contract ncgotiations, and would give this court personal jurisdiction over Kim undcr CPLR 302 (a) (1 j. If plaintill s allegations are shown to be true, plaintiff contends that Kim s action would also constitute a commission of an act within this state, causing harm within this state, pursuant to CPLR 302 (a>(2). Plaintiff also argues that discovery could reveal whether Kim could be subject 3 [* 5] to jurisdiction bascd on her being an agent of 3 Ball. Plaintiff opposes sanctions on the ground that this action is meritorious and that there is sufficient proof to indicate Kim s possible liability. The cross motion involves plaintiffs rcqucst for leave to serve an amcndcd complaint which would revise the claim of fraud aiid withdraw the claims of conversion and unjust ciirichmciit against Kim. Plaintiff has alleged that the dismissal of certain defendants in plaintiffs Federal Action was duc, partirtlly, to misstatements made by Rim. Kim has moved for dismissal of the fraud claim against her in this complaint because the claim was not properly pleadcd. Plaintiff argucs that new information relating to a Rabacour Diallo, who is allegedly serving time for copyright infringement, contradicts Kim s prior statements concerning her involvement with Fuller. Plaintiff avcrs that amendment would not prcjudice Kim, and that the alleged fraud is properly pleaded. I The cross motion also seeks to disqualify Kim s counsel from rcpresentiiig her on the ground that a reprcscntativc of that law firin is expected to testify about an affidavit he or shc drafted rclatiiig to the Federal Action, which will be challcngcd by plaintiff. in this action. Plaintiff argucs that said representative prepared a false affidavit in the Federal Action which resulted in the federal court s dismissal of ccrtain defendants. Plaintiff statcs that she is currently appealing the Federal Action with respect to the dismissal. In opposition to the cross motion, Kim statcs that the second amended complaint remains invalid in its failure to connect her to any actionable fraud claim. According to her, the additional information alleged in this coinplaint does not substantiate any acts on her part that woitld amount to fraud. Moreover, she asserts that none of the additioiia allegations are dircctly 4 [* 6] related to the issue of the Biggest Loser series. Kim statcs that the basis for her jurisdiction as alleged by plaintiff, the negotiations allegedly occurring in Ncw York, is not shown to have any relationship with the scrics. The court will first dcterrnine whcther Kim is subject to this court s jurisdiction. Plaintiff contends that Kiln is subject to long-arm jurisdiction, pursuant to CPLR 302 (a) (1). This section provides that specific jurisdiction cxists where a plaintiffs cause of action arises from a defendant s transaction of business within this state or a dcfcndant s contacts anywhere to provide goods or scrvices in thc state. Essential to the rnaintenancc of a suit against a nondomiciliary under CPLR 302 (subd [a], par 1) is thc existencc of some articulable nexus bctween the business transacted [in New York] and thc cause of action sued upon. McGowan v Smilh, 52 NY2d 268,272 (1981). In the first complaint, plaintifloriginally allegcd that Kiln attendcd a single meeting in New York in May 2004, related to a discussion about the tclevision series. The second amendcd complaint alleges that Kim s telephone records revealed that Kiin was in New York in May 2004; that she spoke to a Roubacour Diallo, who, upon inlormation and belief, has been incllsceratcd in prison for copyright infringement; and that she spoke to three entertainment entities, William Morris Company, Fox Loeber Agcncy and Winstar T.V. and Video, which is owned by Wellspring Media. Plaintiff avers that these calls were business-oriented. Plaintiff states that these contacts with Ncw York are sufficient to subject Kim to long-arm jurisdiction, or to allow further jurisdictional discovery. Kim contends that the calls made in New York are insufficient to provide a ncccssary nexus for j urisdictioiial purposes. She states that these calls were not business-oriented, but 5 [* 7] , , personal, and even so, there is no coniicction between the calls and plaintifl s specific claim against her. She argues that plaintiff-s jurisdictional allegations are too spcculative to be acceptable, and that they do not merit the granting of jurisdictional discovery. The court agrees with Kim that thc new allegations in the proposed complaint are as inadequate as those in the carlier complaint. The calls allegedly made in New York are simply not specific with respect to whether they involved plaintiffs proposal for a tclevision program, the basis of her action. The speculative nature of these allegations do not allow for the granting of jurisdictional discovery. Furtlicrmore, therc arc no valid allegations that Kim committed a tort in New York [or purposes of CPLR 302 (a) (2). The court shall grant Kim s motion [or dismissal on jurisdictional grounds. The cowl will deny sanctions since the action has not been disrnisscd on the merits. The court shall deny plaintiff leave to aincnd her complaint with respect to clainis brought against Kim. Plaintiffs motion for an ordcr disqualifying Kim s counsel is now moot. Accordingly, it is ORDERED that defcndant Elrna Kim s motion to dismiss the complaint is granted and the complaint is severed and dismissed as against her with costs and disbursements to said defciidant as taxed by the Clerk of the Court; and it is further ORDERED that the Clerk is directed to enterjudgment accordingly in favor of said defendant; and it is further ORDERED that defendant EIiiia Kim s motion for sanctions is dcnied; and it is furthcr ORIIERGD that plaintiff Sonya Whitten Latiniorc s motion for lcavc to replead the complaint is denied with respect to those claims brought against defendant Kim and is otherwise 6 [* 8] granted, and the amended complaint in the form annexed to the moving papers shall be deemcd served upon scrvicc by movant of a copy of this order with notice of entry; and it is furthcr ORDEKED that the remaining defcndants in this action shall servc an answer to the amended complaint or otherwise respond thereto within 20 days of said service; and it is further ORDERED that plaintill s motion for the disqualification olKim s counsel is dcnied as moot; and it is further ORDERED that the remainder of this action shall continue. t3 ENTER: J.S.C. > I 7
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