MICHAEL M. BAYLSON, Judge.
Plaintiff Phoenicia Sports & Entertainment, LLC ("Phoenicia") brings this action against Defendant New York Cosmos, LLC ("Cosmos") for breach of contract. Cosmos moves to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). In the alternative, Cosmos moves to transfer venue pursuant to 28 U.S.C. § 1404(a). For the following reasons, Cosmos's Motion will be DENIED.
The following facts are alleged in the Complaint, contained within documents attached to the Complaint, or the product of jurisdictional discovery ordered by the Court.
Phoenicia is a Pennsylvania corporation that provides marketing, management, and sponsorship services to members of the sports and entertainment industry. Compl. ¶¶ 1, 3. Its principal office is located in Bethlehem, Pennsylvania. Compl. ¶ 1. Christopher Lencheski, President of Phoenicia, lives in Center Valley, Pennsylvania, and conducts much of his work for Phoenicia either from his home or from the office in Bethlehem. Lencheski Aff. ¶ 3.
Cosmos is a Delaware corporation that owns and manages the New York Cosmos professional soccer club. Compl. ¶ 4; Removal Notice ¶ 5. Cosmos's only office is located in New York, New York. Compl. ¶ 2; Fraga Dep. 40:6-24. Cosmos does not have any employees in Pennsylvania. Fraga Dep. 40:25-41:4.
In January and February of 2011, Phoenicia entered into negotiations with Cosmos to provide it with various marketing and sponsorship opportunities. Compl. ¶ 6. Mr. Lencheski traveled to New York at least twice to meet with Cosmos and their executive director, Joseph Fraga, as part of these negotiations. Fraga Dep. 21:13-21:22; 41:5-43:16. On February 18, 2011, Phoenicia sent a contract proposal to Cosmos (the "February 18 Proposal") regarding a possible long-term relationship, but Cosmos never signed it or otherwise agreed to it. Compl. ¶¶ 6-7, Ex. 1. The negotiations culminated without resolution.
Phoenicia had a client, the Justice Entertainment Group ("JEG"), which provided sports and entertainment opportunities in Las Vegas. Compl. ¶ 8. In February and March of 2011, Phoenicia and Cosmos negotiated a new, narrower agreement in which Phoenicia would facilitate a contract between Cosmos and JEG in return for a specified commission. Compl. ¶ 9; Lencheski Aff. ¶ 3. These negotiations consisted mainly of at least twelve phone calls between Mr. Fraga, working in New York, and Mr. Lencheski, working in Pennsylvania. Lencheski Aff. ¶ 3; Fraga Dep. 21:23-22:20. Mr. Fraga knew that Mr. Lencheski was in Pennsylvania during these calls. Fraga Dep. 21:23-22:20.
As a result of these telephone negotiations, Fraga (on behalf of Cosmos) and Lencheski (on behalf of Phoenicia) entered into an oral agreement providing that Phoenicia would be paid a 20% commission of gross revenue for "putting Cosmos together" with JEG to produce soccer events in Las Vegas. Compl. ¶ 9. Phoenicia also offered to lower its commission to 10% if Cosmos agreed to the long-term February 18 Proposal within five business days of any contract entered into between Cosmos and JEG. Compl. ¶ 9.
On March 25, 2011, Phoenicia sent Cosmos an email that read, in part:
Compl. Ex. 2.
On March 30, 2011, Mr. Fraga, on behalf of Cosmos, responded by sending an email to Mr. Lencheski that stated, in relevant part, "The arrangement below has been reviewed and accepted by our management. I will also need [sic] review the term sheet with you once more before engaging your client in this endeavor." Compl. Ex. 2.
Following the March 30th email, Phoenicia orchestrated negotiations between Cosmos and JEG. Lencheski Aff. ¶ 5. During these negotiations, Cosmos operated from its office in New York, JEG operated in Nevada, and Phoenicia operated mainly from Pennsylvania. Lencheski Aff. ¶ 5. Phoenicia's role in the negotiations consisted of, among other things, forwarding contract proposals from JEG to Cosmos and initiating weekly telephone conferences. Fraga Dep. 26:17-32:5. During the negotiations, Mr. Fraga also sent emails to Mr. Lencheski, although he never physically entered Pennsylvania. Fraga Dep. 33:11-34:4. While Mr. Fraga did not know where Phoenicia employees were at the time of these telephone calls and emails, he knew that Phoenicia did much of its work out of its Bethlehem, Pennsylvania office. Fraga Dep. 26:17-32:5.
As a result of Phoenicia's efforts, Cosmos and JEG agreed to a letter of intent on April 7, 2011. Compl. ¶ 11; Lencheski Aff. ¶¶ 5-6. The letter stipulated that Cosmos would receive $1,000,000 a year for three years in exchange for participating in various soccer events in Las Vegas. Compl. ¶ 11, Ex. 3. On May 11, 2011, Cosmos and JEG entered into a formal written agreement based on the letter of intent. Compl. ¶ 12. Pursuant to the oral agreement between Phoenicia and Cosmos, Cosmos had five days to agree to the February 18 Proposal to reduce Phoenicia's commission from 20% to 10%. They did not do so. Compl. ¶ 14.
An initial payment of $250,000.00 was paid to Cosmos by JEG pursuant to the terms of the May 11, 2011 contract. Compl. ¶ 15. Phoenicia invoiced Cosmos for 20% of the $250,000.00, or $50,000.00, on or about June 13, 2011. Compl. ¶ 15, Ex. 5. Phoenicia listed its Bethlehem, Pennsylvania address on the invoice. Compl. Ex. 5. Cosmos then paid Phoenicia the $50,000.00 balance by hand delivering a check to Mr. Lencheski while he was in New York City. Compl. ¶ 16; Lencheski Aff. ¶ 6.
On October 28, 2011, Cosmos unilaterally cancelled the May 11 contract with JEG days before the next payment of $750,000.00 was due. Compl. ¶ 17, Ex. 6. Phoenicia demanded payment from Cosmos for the remaining commission fees ($550,000.00)
Phoenicia brought suit against Cosmos in the Northampton County Court of Common Pleas for breach of contract. Compl. ¶ 25. Specifically, Phoenicia alleged that by cancelling the contract with JEG (which reduced the expected gross revenue), and by refusing to pay Phoenicia its earned commission, Cosmos has breached its contract with Phoenicia.
On February 14, 2012, Cosmos removed the case to this Court. (ECF No. 1). On March 13, 2012, Cosmos filed a Motion to Dismiss. (ECF No. 8). On March 16, 2012, Phoenicia filed a motion for discovery related to the issue of personal jurisdiction, which the Court granted on April 2, 2012. (ECF No. 13). As part of that discovery, the parties deposed Mr. Fraga. Phoenicia then filed a timely response to the Motion, and Cosmos timely replied. (ECF Nos. 18-19).
Cosmos first seeks dismissal for lack of personal jurisdiction under Rule 12(b)(2). Cosmos contends that it does not have the minimum contacts with Pennsylvania necessary for the exercise of specific jurisdiction. Additionally, Cosmos claims that it would be unduly burdened by having to litigate in Pennsylvania, rather than its home forum of New York. In the alternative, Cosmos moves to transfer the case to the Southern District of New York.
Cosmos also moves to dismiss the Complaint under Rule 12(b)(6). Cosmos argues that the New York Statute of Frauds bars Phoenicia's breach of contract claim because the alleged contract is an oral agreement which (1) could not be performed within one year; (2) is for commission in exchange for negotiating a business opportunity; and (3) is not sufficiently memorialized in writing.
Additionally, Cosmos claims that the alleged oral agreement is unenforceable because it is indefinite as to its material terms. Specifically, Cosmos contends that the failure to define "gross revenue" renders the fee ambiguous and that the existence of two compensation structures renders the alleged contract an unenforceable agreement to agree.
When deciding a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), the court is required to take all of plaintiff's factual allegations as true and to resolve all factual disputes in plaintiff's favor.
Under the notice pleading requirements of Federal Rule of Civil Procedure 8(a)(2), a complaint must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." To survive a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the complaint must plead sufficient factual allegations, that, taken as a whole, state a facially plausible claim to relief.
In analyzing the complaint, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief."
Generally, the district court may consider only the facts alleged in the complaint and its attachments on a motion to dismiss.
Federal Rule of Civil Procedure 4(k) authorizes a federal district court to assert personal jurisdiction over a non-resident defendant to the extent permitted by the law of the state where that court sits.
There are two types of personal jurisdiction: general jurisdiction and specific jurisdiction.
In analyzing specific jurisdiction in the context of a breach of contract claim, district courts consider "whether the defendant's contacts with the forum were instrumental in either the formation of the contract or its breach."
Jurisdiction may be asserted even when a party does not physically enter the forum state.
In this case, the Court finds that Cosmos purposefully directed its activities at the forum state of Pennsylvania. Cosmos participated in numerous negotiations by telephone and email with Phoenicia, which was operating from Pennsylvania. These negotiations led to the oral agreement at issue.
Cosmos maintained contacts in Pennsylvania during the performance of the oral agreement as well—that is, Cosmos participated in weekly telephone conferences with Phoenicia employees located in Pennsylvania in the period leading up to the May 11, 2011 contract between Cosmos and JEG. Indeed, Mr. Fraga (located in New York) sent emails to Mr. Lencheski (located in Pennsylvania) as part of the ongoing negotiations with JEG and Phoenicia. The combination of the oral agreement and the May 11, 2011 contract obligated Cosmos to pay Phoenicia "20% commission on gross revenue" over three years
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Cosmos' argument that phone calls and letters alone cannot create minimum contacts is unavailing, as the Supreme Court and the Third Circuit have directly contradicted this contention.
Cosmos also contends that it did not have knowledge that Phoenicia was a Pennsylvania company or that Phoenicia was operating principally from Pennsylvania. The factual record produced during jurisdictional discovery contradicts this assertion. Mr. Fraga, the executive director of Cosmos at the time of these events, knew that Phoenicia had an office in Bethlehem, Pennsylvania, and that Mr. Lencheski lived near this office. Fraga Dep. 10:9-11:5. Mr. Fraga also knew that Mr. Lencheski was in Pennsylvania while they negotiated the oral agreement over the telephone. Fraga Dep. 21:23-22:20. Although Mr. Fraga did not know where Phoenicia employees were located during the weekly telephone conferences between Cosmos, JEG, and Phoenicia, Mr. Fraga knew that Phoenicia did much of its work out of its Bethlehem office. Fraga Dep. 26:17-32:5. Finally, Phoenicia listed its Bethlehem address on the initial commission invoice, providing Cosmos notice that Phoenicia was operating out of Pennsylvania. Compl. Ex. 5. Cosmos subsequently paid Phoenicia its commission, proving that Cosmos saw the invoice and the address listed within. Compl. ¶ 16. The record therefore indicates that Cosmos, through its agent Mr. Fraga, knew that Phoenicia was operating principally out of its Bethlehem, Pennsylvania office.
The litigation must also arise out of or relate to at least one of the defendant's contacts with the forum State.
Here, Phoenicia's claim is for breach of contract, and Cosmos's contacts with Pennsylvania include the negotiations leading to the oral agreement at issue. A "meaningful link" clearly exists between Cosmos's contact with Pennsylvania and Phoenicia's claim. As such, the claim "arises out of" Cosmos's contacts with the forum, i.e. Pennsylvania.
Finally, the Court considers whether the exercise of jurisdiction would "otherwise comport with `traditional notions of fair play and substantial justice.'"
The Supreme Court has identified several factors to consider when deciding whether jurisdiction comports with fair play and substantial justice: "the burden on the defendant, the forum State's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, [and] the interstate judicial system's interest in obtaining the most efficient resolution of controversies."
Cosmos has not presented a compelling case that the Court exercising jurisdiction would be unreasonable. Although Cosmos claims that it would be burdened by defending the action in Pennsylvania, it does not explain in any detail how it would be burdened.
Additionally, Cosmos claims that New York would be the most efficient forum because both Cosmos and Phoenicia have offices in that State. Def.'s Br. 9 (citing
Finally, Cosmos suggests that "Pennsylvania does not have a significant interest in furthering its social policies, while New York has a considerable interest in enforcing its Statute of Frauds." Def.'s Br. 10. Cosmos has overlooked Pennsylvania's interest in protecting the contractual rights of its residents and their business ventures. Additionally, New York's interest in enforcing its Statute of Frauds "may be accommodated through application of [Pennsylvania's] choice-of-law rules."
In sum, Cosmos's contacts with Pennsylvania were instrumental in the formation of the oral agreement at issue in this case, and Cosmos could have "reasonably anticipate[d] being haled into court there."
Cosmos also contends that the Complaint should be dismissed because (1) the oral agreement is barred by the New York Statute of Frauds and (2) the oral agreement is unenforceable because it is indefinite as to its material terms.
The applicable provisions of the New York Statute of Frauds ("Statute of Frauds") provide:
N.Y. Gen. Oblig. Law § 5-701 (McKinney 2012). Here, the contract between Cosmos and Phoenicia was a contract to "pay compensation for services rendered in negotiating . . . a business opportunity. . . ."
While New York courts not resolved the scope of what is covered by the term "business opportunity," when "the intermediary's activity is so evidently that of providing `know-how' or `know-who', in bringing about between principals an enterprise of some complexity . . . the statute is entitled to be read both in accordance with its plain meaning [and] its evident purpose .. . ."
In this case, the Complaint alleges that Phoenicia both introduced the parties to the transaction and facilitated the negotiation of an agreement between them. In return, Phoenicia was promised compensation in the form of 20% of Cosmos's gross revenues as a result of the transaction. Because Phoenicia provided both the "know-who" and the "know-how" — the introduction of JEG and Cosmos and the facilitation of an agreement — the term "business opportunity" should be accorded its plain meaning. The relationship between Cosmos and JEG constituted a business opportunity: JEG would pay Cosmos to participate in various soccer events in the Las Vegas area.
Phoenicia argues that only finders fee contracts are covered by subsection (a)(10) of the Statute of Frauds, and that since Phoenicia participated in negotiations the oral agreement does not constitute a finders fee. This contention is refuted by both the plain language of the statute and binding precedent.
The Statute of Frauds thus applies to the oral agreement, as it was a contract to facilitate negotiations for a business opportunity in return for compensation.
Because the oral agreement is a contract for negotiating a business opportunity, it is barred by the Statute of Frauds unless a signed written memorandum memorializes its existence. N.Y. Gen. Oblig. Law § 5-701(a). The memorandum "must contain the whole agreement, and all its material terms and conditions, not indeed in detail and with absolute precision, but substantially, and so that one reading the memorandum could understand from that what the agreement really was."
The March 25th and March 30th emails satisfy the written memorandum requirement of the Statute of Frauds.
Cosmos responded with the March 30th email, which stated, "The arrangement below has been reviewed and accepted by our management." Compl. Ex 2. This clearly shows that Cosmos manifested assent to the oral agreement.
Nevertheless, Cosmos argues that a key aspect of the oral agreement — the fee owed Phoenicia — is not described with sufficient clarity in the email exchange for it to satisfy the Statute of Frauds. First, Cosmos claims that the presence of two possible fee structures within the March 25th email creates uncertainty as to the commission Cosmos is obligated to pay Phoenicia.
Cosmos also asserts that because the March 25th email fails to define "gross revenue," it lacks an essential term of the oral agreement. This argument also fails because the parties' actions support an ordinary reading of "gross revenue".
The email exchange of March 25th and March 30th thus satisfies the written memorandum requirement of the Statute of Frauds because it identifies the parties and describes the material terms of the agreement: Cosmos would pay Phoenicia 20% commission on gross revenue in exchange for "joining" JEG and Cosmos together in a contract. As such, enforcement of the oral agreement is not barred by the Statute of Frauds.
Under both New York and Pennsylvania law, the alleged oral agreement is sufficiently definite with respect to its material terms, and is thus enforceable. New York courts have "not applied the definiteness doctrine rigidly. . . . Thus, where it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain."
The oral agreement is sufficiently definite under New York law for analogous reasons to those already articulated with respect to the written memorandum requirement above.
Similarly, the contract is sufficient under Pennsylvania law because Pennsylvania also allows surrounding circumstances to be used to explain ambiguous terms.
Again, the phrase "gross revenue" is not ambiguous because the parties' billing and subsequent payment following JEG's initial payment to Cosmos support giving "gross revenue" its ordinary meaning.
The material terms of the oral agreement are sufficiently unambiguous; as such, it is an enforceable agreement under both New York and Pennsylvania law.
For the reasons set forth above, Cosmos's Motion to Dismiss is DENIED. An appropriate Order follows.
Compl. Ex. 2.