Civil Action No: 98-3508 SECTION: "D"(2)
November 1, 2000
Before the court is the "Motion to Dismiss Third Party Demand Pursuant to Federal Rule of Civil Procedure 12(b)(2)" filed by Third-Party Defendant, Lennox Holdings, Ltd. (Lennox). Third-Party Plaintiff, Vee Jay Limited Partnership (Vee Jay), filed an "Opposition to Motion to Dismiss with Incorporated Memoranda and Request for Similar Order Regarding Discovery as Was Previously Issued by This Honorable Court". The motion, set for hearing on Wednesday, November 1, 2000, is before the court on briefs, without oral argument.
Having reviewed the memoranda of counsel and the applicable law, the court finds that the motion should be denied. When this matter was consolidated under lead case " Gulf Coast Music, L.L.C. v. Ace Records Ltd., et al, No. 98-0946", Lennox filed a similar Motion to Dismiss Gulf Coast's claims for lack of personal jurisdiction and, upon reconsideration, this court found that at the pre-trial stages of that proceeding, Plaintiff Gulf Coast had made a prima facie showing of personal jurisdiction over Defendant Lennox. ( See Record in 98-0946 CC, Doc. No. 78, Minute Entry, p. 4 (also attached to Vee Jay's Opp. as Exhibit 4)).
In making this determination, the court was directed to the following documents contained in the record: (1) a memo of understanding between Jean Luc Young on behalf of Charly Holdings Inc., Marshall Sehorn on behalf of Red Dog Express Inc. and Packard Phillips on behalf of Excell Inc.; (2) a listing of royalty payments paid by Charly Holdings (or its successor in title, Lennox) to Excell Inc., purportedly a Louisiana corporation (through its attorney Packard Phillips); and (3) a transcript of the hearing of Defendant Lennox's Motion for TRO and Preliminary Injunction, wherein Lennox's attorney argued that Lennox (and Charly Acquisitions) had an executory contract with Gulf Coast or Excell and the debtors in bankruptcy (Marshall Sehorn, White Dog Records, Inc. and Red Dog Express, Inc.) and that performance was made via royalty payments to Gulf Coast's attorney. ( Id. at 2-3).
Similarly, now the court finds that Vee Jay (relying in part on the above documentation) has made a prima fade showing of personal jurisdiction over Third-Party Defendant Lennox, which is a sufficient showing on a motion to dismiss for lack of personal jurisdiction without a full-blown evidentiary hearing or discovery. Bullion v. Gillespie, 895 F.2d 213, 216-17 (5th Cir. 1990); Linzer v. EMI Blackwood Music, Inc., 904 F. Supp. 207, 211 (S.D.N Y 1995).
The court also finds that Vee Jay should be afforded the opportunity to conduct discovery to prove this personal jurisdiction by a preponderance of the evidence, which it must do at Trial (presently set on May 1, 2001) or in response to a Motion for Summary Judgment. In its opposition, Vee Jay suggests that "as per [its] Exhibit 2, disputed masters emanating from Lennox's predecessor in title, Charly, have recently been purchased by a Louisiana resident from his Louisiana residence." (Opp. at 6 and Exhibit B). Further, Vee Jay attached to its Opposition, a March 22, 2000, decision from a British Court which extensively discusses the Charly group of companies and Jean Luc Young's role (Exhibit 5), and Affidavits of Jean Luc Young previously submitted in the
Counsel for Lennox and counsel for Vee Jay had previously agreed to the taking of Lennox's Rule 30(b)(6) deposition in London on October 19-20, 2000. However, at the eleventh hour, Lennox refused to participate in this deposition. Vee Jay filed an Emergency Motion to Compel Deposition and for Rule 37 Sanctions, which the Magistrate Judge granted in part by requiring Lennox to pay Vee Jay costs and fees in connection with the deposition and the motion. (Doc. No. 12).
The Magistarte Judge also wrote that: "If the presiding district judge determines that the deposition is necessary in connection with the pending motion to dismiss for lack of personal jurisdiction . . . the Court will consider another motion to compel third-party defendant's appearance at a later date." ( Id.).
Thus, the court encourages the parties to amicably work together in accomplishing the taking of Lennox's 30(b)(6) deposition. If this can not be done, Vee Jay should set the necessary motion to compel before the Magistrate Judge.
IT IS ORDERED that Lennox's "Motion to Dismiss Third Party Demand Pursuant to Federal Rule of Civil Procedure 12(b)(2)" be and is hereby DENIED.
See footnote 1, supra.