IN THE UNITED STATES DISTRICT COURT
SOURTHERN DISTRICT OF FLORIDA
KENNETH REEL and EMILY REEL,
Individually and as the representatives of a
Class of similarly-situated persons,
Plaintiffs,
vs.
BILLY MCFARLAND, an individual;
JEFFREY ATKINS a/k/a JA RULE, an
individual; FYRE MEDIA, INC., a Delaware
corporation; FYRE FESTIVAL, LLC, a
Delaware limited liability company; 42WEST,
LLC, a Delaware limited liability company;
MATTE PROJECTS, LLC, a New York
limited liability company; DOES 1-50,
Defendants.
____________________________________/
Case No: 1:17-cv-21683-FAM
DEFENDANT MATTE PROJECTS, LLC’S MOTION TO DISMISS
THE CROSS CLAIM OF DEFENDANT JEFFREY ATKINS
AND SUPPORTING MEMORANDUM OF LAW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant MATTE PROJECTS,
LLC
1
moves to dismiss the “Second Cross-Claim” of Defendant Jeffrey Atkins, a/k/a Ja Rule
(the “Cross-Claim”). The Cross-Claim purports to state a claim for indemnification and/or
contribution, but falls woefully short of properly pleading such claims. Specific grounds for this
Motion are set forth more fully in the accompanying Memorandum of Law.
1
Matte Finish, LLC entered into a contract to provide creative services to Fyre Media in
connection with the Fyre Festival. The Complaint incorrectly names Matte Projects, LLC (an
entity related to Matte Finish, LLC) as a Defendant in this matter.
Case 1:17-cv-21683-FAM Document 53 Entered on FLSD Docket 09/29/2017 Page 1 of 11
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MEMORANDUM OF LAW
Introduction
Defendant/Cross-claimant Jeffrey Atkins – also known as Ja Rule – is a rapper, singer,
songwriter, and record producer who became involved with Defendant Billy McFarland as one
of the organizers and producers of the Fyre Festival. As demonstrated in an exhibit to the
Complaint, immediately after the Fyre Festival failed, Festival producers issued an apology that
described, among other things, the role played by Atkins (Ja Rule) in organizing the Festival:
Billy McFarland and Ja Rule started a partnership over a mutual interest in
technology, the ocean, and rap music. This unique combination of interests led
them to the idea that, through their combined passions, they could create a new
type of music festival and experience on a remote island.
They simply weren’t ready for what happened next, or how big this thing would
get. They started by making a website and launching a viral campaign. Ja helped
book talent, and they had hundreds of local Bahamians join in the effort.
Suddenly, they found themselves transforming a small island and trying to build a
festival. Thousands of people wanted to come. They were excited, but then the
roadblocks started popping up.
[Doc. 1-14, at 1-2.]
Now, however, Atkins’s perspective on the Fyre Festival and his role in the
Festival has changed dramatically. According to his Answer and Cross-Claims, Atkins is
the one person involved in the Fyre Festival who bears absolutely no responsibility for
what happened. Rather, in his view, everyone else is at fault and he should be
indemnified for any damages he is required to pay. As explained below, his Cross-Claim
against Defendant Matte Projects, LLC (“Matte”) for indemnity or contribution is utterly
devoid of any factual or legal basis and should be categorically rejected.
Background
According to the Complaint, Atkins is one of the organizers of, and had an economic
interest, in the Fyre Festival. [Doc. 1, ¶ 26.] In his Answer, Affirmative Defenses, and Cross-
Case 1:17-cv-21683-FAM Document 53 Entered on FLSD Docket 09/29/2017 Page 2 of 11
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Claim [Doc. 44], Atkins appears to admit as much. He alleges, “on information and belief,” that
Defendant Billy McFarland “purportedly gave an interest in [the Fyre Festival entities] to
defendant, Jeffrey Atkins, for his artistic knowledge and experience” and that McFarland used
Atkins’s “artistic vision and used his name, connections, and artistic abilities” in connection with
the Festival. [Doc. 44, Cross-Claim ¶ 1.]
Nevertheless, Atkins denies any liability for the claims raised in the Complaint. In fact,
he flatly denies each and every allegation in the Complaint concerning him. [Doc. 44, ¶¶ 1-184.]
Atkins likewise raises a variety of affirmative defenses and also asserts two Cross-Claims against
the other Defendants. [Doc. 44 at 28-30.]
In his Second Cross-Claim, Atkins continues to maintain that he has no liability to
Plaintiffs, but also contends that if he has any liability, Defendants Matte and 42West, LLC are
liable to him for indemnification and/or contribution. In totality, Atkins’s Cross-Claim against
Matte is merely three paragraphs long and alleges as follows:
4. Atkins repeats and realleges each and every response and
allegation contained in the paragraphs above as if set forth fully and at length
herein.
5. To the extent any damages were sustained by Plaintiffs and the
purported class as alleged in the Complaint (which damages are specifically
denied by Atkins), said damages were caused by the acts and/or omissions of
42West, LLC (“42West”), Matt Projects, LLC (“Matt”), (42West and Matt are
collectively referred to herein as the “PR Defendants”) and their agents,
employees and such other persons other than Atkins, without the affirmative acts
of Atkins contributing thereto.
6. Atkins has a claim for, inter alia, contribution and indemnification
against all the defendants in this action.
[Doc. 44 at 29-30.]
As explained below, these barebones allegations are insufficient to state a claim for relief
as against Matte. Accordingly, the Second Cross-Claim should be dismissed as to Matte.
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Argument
I. Where The Allegations In A Cross-Claim Are Deficient, The Cross-Claim Should Be
Dismissed.
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
“must accept the allegations of the complaint as true and must construe the facts alleged in the
light most favorable to the plaintiff.” Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir.
1994) (citation omitted). However, “conclusory allegations, unwarranted factual deductions or
legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines,
Inc., 326 F.3d 1183, 1185 (11th Cir. 2003) (citation omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation omitted). A claim for relief is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The plaintiff must allege facts sufficient to show “more than a
sheer possibility that a defendant has acted unlawfully.” Id. Where the plaintiff has not “nudged
[his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Rule 12(b)(6) and its standards for dismissal also apply to cross-claims, such as those
asserted by Atkins. See, e.g., Russ v. Berchtold Corp., Case No. 12-cv-24482-UU, 2013 WL
12092522, *1 (Aug. 12, 2013) (applying Rule 12(b)(6) standards to cross-claim). Because
Atkins has not plausibly alleged any facts to support his Cross-Claims, they should be dismissed.
II. Atkins Has Not Pleaded Any Facts To Support A Claim For Indemnification.
Florida recognizes distinct causes of action for indemnification: contractual
indemnification and common law indemnification. See, e.g., Winn-Dixie Stores, Inc. v. Big Lots
Case 1:17-cv-21683-FAM Document 53 Entered on FLSD Docket 09/29/2017 Page 4 of 11
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Stores, Inc., Case No. 9:11-cv-80601-DMM, 2016 WL 2918152, *7-*8 (May 8, 2016)
(dismissing both contractual and common law indemnification claims). Here, Matte never had
any contractual relationship with Atkins, and the Cross-Claim does not allege the existence of
such a relationship. As a result, Atkins appears to making a claim for common law
indemnification.
“Common law indemnity shifts the entire loss from one who is obligated to pay to
another party, who bears the costs of the initial party’s wrongdoing because of some vicarious,
derivative, or constructive liability.” Safeco Ins. Co. v. Victoria Management, LLC, No. 12-
20489-CIV, 2012 WL 1606101, *2 (S.D. Fla. May 8, 2012) (Moreno, J.) (citation omitted).
For a party to succeed on a claim of common law indemnity, the party must
satisfy a two-prong test. First, the party seeking indemnification must be without
fault, and its liability must be vicarious and solely for the wrong of another.
Second, indemnification can only come from a party who was at fault. . . .
Additionally, Florida courts have required a special relationship between the
parties for common law indemnification to exist.
Id. (citation omitted). See also Dade Cty. Sch. Bd. v. Radio Station, WQBA, 731 So. 2d 638, 642
(Fla. 1999) (same).
Atkins has not pleaded any of the facts necessary to support a common law
indemnification claim against Matte. First, while Atkins alleges that he is without any fault, he
does not allege how his potential liability in this matter arises from a vicarious relationship with
Matte or how he could be held liable solely for wrongs allegedly committed by Matte. In reality,
no such relationship exists.
Second, indemnification must come only from the party or parties actually at fault, but
Atkins has not pleaded any facts to show that the parties from whom he seeks indemnification –
Matte and 42West – are in any way at fault. Indeed, his Cross-Claim does not identify a single
action or inaction by Matte or 42West that would demonstrate that either of those parties was at
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fault for the claims being asserted against Atkins. To the extent that his Cross-Claim
incorporates by reference his Answer to the Complaint, it does not allege any wrongful conduct
by Matte because the Answer repeatedly states that Atkins lacks information sufficient to form
any belief as to allegations about Matte’s conduct. In other words, Atkins alleges that he does
not know anything about Matte or its actions.
Third, and perhaps most importantly, Atkins has not alleged any facts showing that he
has a “special relationship” with Matte. Florida courts have not provided a precise definition of
the term “special relationship,” but they “commonly look to whether the third party defendant
breached a duty arising under a contract with the third party plaintiff or breached some kind of
other duty implied by the parties’ conduct.” Marlite, Inc. v. Robbins, No. 23641-Civ-
MORENO/TORRES, 2012 WL 12863140 (S.D. Fla. Feb. 27, 2012). See also Tsafatinos v.
Family Dollar Stores of Fla., Inc., 116 So. 3d 576, 581 (Fla. 2d DCA 2013) (a special
relationship is one that “makes the party seeking indemnification vicariously, constructively,
derivatively, or technically liable for the acts or omissions of the other party”).
Atkins’s Cross-Claim is devoid of any factual allegations that would establish any
relationship whatsoever between Atkins and Matte, let alone a special relationship. That failure
single-handedly defeats Atkins’ Cross-Claim for indemnification. See, e.g., Berlinger v. Wells
Fargo, N.A., No. 2:11-cv-459-FtM-29CM, 2015 WL 4459611, *3 (M.D. Fla. July 21, 2105)
(dismissing indemnification claim because plaintiff “failed to show the existence of any special
relationship between herself and Bruce or Wells Fargo”); Tsafatinos, 116 So. 3d at 581
(affirming dismissal of indemnification claim because plaintiff “failed to show the existence of
any special relationship”).
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A common law indemnity claim is properly dismissed even where the plaintiff “recite[s]”
the legal elements necessary to support such a claim, because the court “need not accept such
legal allegations as true.” Maguire v. Demos, No. 2:10-cv-783-FtM-3DNF, 2012 WL 859605,
*2 (M.D. Fla. Mar. 12, 2012). Here, however, Atkins has not even recited the legal elements of
an indemnity claim. Because his Cross-Claim is wholly unsupported by any relevant allegations,
the Cross-Claim must be dismissed.
III. Atkins Cannot Plead Any Facts To Support A Claim For Contribution.
Inasmuch as Atkins’s Cross-Claim is meant to be a claim for contribution, it fails as a
matter of law and fact. “Contribution is defined as a tortfeasor’s right to collect from others
responsible for the same tort after the tortfeasor has paid more than his or her proportionate
share.” Safety Ins. Co. v. GAB Robins N. Am., Inc., CASE NO: 8:08-cv-2402-T-26EAJ, 2009
WL 10671231, *4 (M.D. Fla. Jan. 29, 2008) (internal quotation omitted). Florida does not
recognize a claim for common law contribution; “[i]t is an exclusively statutory right.” Porto
Venezia Condo. Assoc., Inc. v. WB Fort Lauderdale, LLC, Case No. 11-60665-CIV-
DIMITROULEAS/SNOW, 2012 WL 12838283, *3 (S.D. Fla. May 29, 2012). See also Fla.
Patient’s Compensation Fund v. St. Paul Fire & Marine Ins. Co., 559 So. 2d 195, 197 (Fla.
1990) (same).
Section 768.31, Florida Statutes, sets forth the rules for contribution among tortfeasors.
Critically, “there is no right of contribution for intentional torts or for breaches of trust or other
fiduciary obligation.” Bel-Bel Intern. Corp. v. Barnett Bank of S. Fla., N.A., 158 B.R. 252, 256
(S.D. Fla. 1993) (emphasis added). See also Freeman v. Dean Witter Reynolds, Inc., 865 So. 2d
543, 551 (Fla. 2d DCA 2003) (intentional tortfeasors cannot recover in contribution); §
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768.31(2)(c) (There is no right of contribution in favor of any tortfeasor who has intentionally
(willfully or wantonly) caused or contributed to the injury or wrongful death.”).
Because there is no right of contribution for intentional torts, Atkins cannot, as a matter
of law, seek contribution from Matte in relation to any counts of the Complaint alleging an
intentional tort. Matte is a Defendant in Counts II, IV, VI, VIII, and IX of Complaint. Counts II
(fraudulent misrepresentation), VI (fraud in the inducement), VIII (violation of the Florida
Deceptive and Unfair Trade Practices Act), and IX (violation of North Carolinas’ unfair trade
practices statute) are all intentional tort claims. Thus, by statute, Atkins is barred from seeking
contribution in connection with any of those Counts.
2
The only remaining Count naming Matte as a Defendant is Count IV (negligent
misrepresentation). But a contribution cross-claim based upon negligent misrepresentation also
fails. Under Florida law, the right of contribution applies only “when two or more persons
become jointly or severally liable in tort for the same injury.” § 768.31, Fla. Stat. In 2006,
however, the Florida Legislature amended Chapter 768, Florida Statutes, to eliminate joint and
several liability for most torts, including negligence actions. See § 768.81(3) (“In a negligence
action, the court shall enter judgment against each party liable on the basis of such party’s
2
Atkins’s claim for contribution likewise fails because, to state a claim for contribution,
Atkins “must allege common liability to the injured party.” Mayor’s Jewelers v. Meyrowitz, No.
12–80055–CIV, 2012 WL 2344609, *9 (S.D. Fla. June 20, 2012) (internal quotation omitted).
“Common liability is defined as the joint causing of damage or injury.” Id. (internal quotation
omitted). Here, Atkins does not plead that he and Matte have common liability because he does
not allege that he jointly caused any injury. To the contrary, he pleads that any damages suffered
by Plaintiffs “were caused by the acts and/or omissions of” Matte and 42 West, “and their agents,
employees and such other persons other than Atkins, without the affirmative acts of Atkins
contributing thereto.” [Doc. 44, Cross-Claim ¶ 5 (emphasis added).] Atkins’s failure to plead
common liability is an additional reason for dismissing his contribution claim. Id.
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9
percentage of fault and not on the basis of the doctrine of joint and several liability.”).
3
The
elimination of joint and several liability in negligence actions has rendered claims for
contribution in Florida “obsolete.” Porto Venezia Condo. Assoc., 2012 WL 12838283, at *3;
Zazula v. Kimpton Hotels and Rests., LLC, No. 10-21381-CIV, 2011 WL 1657872, *2 (S.D. Fla.
May 2, 2011) (same); T & S Enterprises Handicap Accessibility, Inc. v. Wink Indus., 11 So. 3d
411 (Fla. 2d DCA 2009) (same). As a result, such claims are routinely dismissed. See Porto
Venezia Condo. Assoc., 2012 WL 12838283, at *3 (dismissing negligence-based contribution
claim); Zazula, 2011 WL 1657872, at *2 (same). See also Mendez-Garcia v. Galaxie Corp., No.
8:10-cv-788-T-24EAJ, 2011 WL 5358658, *5 (M.D. Fla. Nov. 3, 2011) (granting summary
judgment on contribution claim).
For all of these reasons, Atkins’s claim for contribution fails as a matter of law and must
be dismissed.
Conclusion
WHEREFORE, Defendant Matte respectfully requests that the Court grant this Motion
and dismiss the Cross-Claim asserted by Atkins against Matte.
Respectfully submitted,
THOMAS & LOCICERO PL
/s/ James J. McGuire
Carol Jean LoCicero
Florida Bar No. 603030
James J. McGuire
Florida Bar No. 0187798
601 S. Boulevard
3
Thus, in this matter, if Matte had any liability to Plaintiffs for negligent misrepresentation
(which Matte denies), the judgment entered by the Court would necessarily parse out Matte’s
percentage of fault as well as the percentage of fault of all other Defendants. Because there is no
circumstance under which a judgment would be entered against Atkins requiring him to pay
some portion of the damages actually attributable to Matte, a claim for contribution by Atkins
against Matte is wholly unnecessary.
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Tampa, FL 33606
Telephone: (813) 984-3060
Facsimile: (813) 984-3070
clocicero@tlolawfirm.com
jmcguire@tlolawfirm.com
Dana J. McElroy
Florida Bar No. 0845906
915 Middle River Drive, Ste. 309
Fort Lauderdale, FL 33304
Telephone: (954) 703-3417
Facsimile: (954) 400-5415
dmcelroy@tlolawfirm.com
Attorneys for Matte Projects, LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document is
being electronically filed and will be furnished via CM/ECF and via Electronic Mail on this day,
September 29, 2017, upon on all counsel of record and parties identified on the attached Service
List below in the manner specified, either via transmission of Notices of Electronic Filing
generated by CM/ECF or in some other authorized manner for those counsel or parties who are
not authorized to receive electronic Notices of Electronic Filing.
By: /s/ Dana J. McElroy
Attorney
Case 1:17-cv-21683-FAM Document 53 Entered on FLSD Docket 09/29/2017 Page 10 of 11
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SERVICE LIST
Via Electronic Mail
Jeffrey A. Backman
Rachel E. Walker
Greenspoon Marder, P.A.
200 E. Broward Blvd. Suite 1800
Fort Lauderdale, FL 33301
Telephone: (954) 491-1120
Jeffrey.Backman@gmlaw.com
Rachel.Walker@gmlaw.com
Counsel for Plaintiffs Kenneth Reel and Emily
Reel
Via Electronic Mail
Chad. E. Levy
The Law Offices of Levy & Levy, P.A.
1000 Sawgrass Corporate Parkway, Ste. 588
Sunrise, FL 33323
Telephone: (954) 763-5722
Facsimile: (954) 763-5723
Chad@levylevylaw.com
assistant@levylevylaw.com
Counsel for Plaintiffs Kenneth Reel and Emily
Reel
Via Electronic Mail
Michael E. Zapin, Esq.
Law Offices of Michael E. Zapin
20283 State Road 7, Suite 400
Boca Raton, FL 33498
Tel. 561.367.1444
michaelezapin@gmail.com
Attorney for Defendant Jeffrey Atkins
Via Electronic Mail
S. Jonathan Vine
Cole Scott & Kissane
222 Lakeview Avenue, Suite 120
Esperante Building
West Palm Beach, FL 33401
Telephone: (561) 383-9200
Facsimile: (561) 683-8977
Jonathan.Vine@csklegal.com
Elizabeth Chantel Greene
Cole Scott & Kissane
4301 West Boy Scout Boulevard
Suite 400
Tampa, FL 33607
Telephone: (813) 864-9301
Elizabeth.Greene@csklegal.com
Counsel for Defendant 42 West, LLC
Defendants Served Via U.S. Mail
Billy McFarland
345 W. 14
th
Street, 2A
New York, NY 10014-5228
Fyre Media, Inc.
c/o Corporation Trust Center
1209 N. Orange St.
Wilmington, Delaware 19801
Fyre Festival, LLC
c/o Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
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