Minnie Rose LLC v. Yu

169 F. Supp. 3d 504, 2016 U.S. Dist. LEXIS 32081, 2016 WL 1049020
CourtDistrict Court, S.D. New York
DecidedMarch 11, 2016
Docket15 Civ. 1923 (ER)
StatusPublished
Cited by60 cases

This text of 169 F. Supp. 3d 504 (Minnie Rose LLC v. Yu) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Minnie Rose LLC v. Yu, 169 F. Supp. 3d 504, 2016 U.S. Dist. LEXIS 32081, 2016 WL 1049020 (S.D.N.Y. 2016).

Opinion

OPINION AND ORDER

Ramos, District Judge.

Minnie Rose LLC (“Plaintiff’ or “Minnie Rose”), a New York clothing retailer and fashion brand, brings suit against Anna Yu (“Yu”), her closely held corporation Elva Green Clothing Company Ltd. (“Elva Green”), and John Does 1-10 for fraudulent misrepresentation and unjust enrichment. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a). Before the Court is Yu’s and Elva Green’s (collectively, “Defendants”) motion to dismiss the Complaint pursuant to Rule 12(b)(2) or, in the alternative, 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants’ motion is DENIED.

I. Background1

A. The Dispute

Plaintiff is a New York corporation that designs, manufactures, and sells women’s contemporary clothing. Compl. ¶ 1. In 2009, Plaintiff engaged Elva Green’s services, through its corporate officer, Yu, to become Plaintiffs primary sourcing agent. Id. ¶¶ 1-2, 12. In that capacity, Defendants were responsible for selecting factories to manufacture Plaintiffs clothing, supervising production, negotiating prices, and coordinating Plaintiffs payment of the factories’ invoices. Id. ¶¶ 2, 13. In exchange for its services, Plaintiff agreed to pay Defendants a commission equal to 10% of the FOB cost of each item produced and shipped to Plaintiff. Id. ¶ 13. The agreement between the parties was never reduced to writing. Defs.’ Mem. at 20; Pl.’s Opp’n at 5. According to Plaintiff, Defen[509]*509dant Elva Green is a single purpose entity that derived its entire revenue from Plaintiff. Declaration of Lisa Shaller-Goldberg (“Shaller-GoldbergDecl”) ¶3.

Plaintiff began using only factories recommended by Defendants, all of which were located in China, to produce its clothing. Compl. ¶¶ 1-2, 12. Over the course of the six year relationship, Defendants caused monthly shipments to be made to Plaintiff and billed their services accordingly. “Shaller-Goldberg Decl.” ¶ 3.

Plaintiff alleges that in the Summer of 2014, it learned Defendants had been defrauding Plaintiff throughout the entirety of their business relationship. Compl. ¶ 3. Specifically, Plaintiff alleges that Defendants altered the factory invoices to inflate “each and every sum listed,” caused Plaintiff to pay the higher amount, and pocketed the difference. Id. ¶¶ 3, 15, 16, 20. As a consequence of inflating the cost of each item, Defendants also artificially inflated the commission they charged Plaintiff. Id. ¶ 23. With regards to one factory, the Ton-glu Gaili Garment Co. LTD Factory (the “Tonglu Factory”), Plaintiff alleges that Defendants also altered the payment instructions on the invoices to direct Plaintiff to make payments to a bank account controlled by Defendants rather than an account controlled by the Tonglu Factory. Id. ¶ 19.

Plaintiff also alleges that Defendants fraudulently represented that they were required to pay out-of-pocket up-front payments to the Shanghai Dongfang Wool Knitting Co., Ltd Factory (the “Shanghai Factory”) for various supplies, for which Defendants then demanded reimbursement. Id. ¶¶ 21-22. However, according to Plaintiff, Defendants never made any such up-front payments and instead kept the purported reimbursement payments. Id. ¶ 22.

Plaintiff learned of the alleged fraud when it received an “actual invoice” from one of the Chinese factories. Shaller-Goldberg Decl. ¶ 10.2 Shortly thereafter, Plaintiff terminated its relationship with Defendants and filed this action. Id. Over the course of the relationship, Plaintiff claims to have paid Defendants $1,400,000 in “legitimate commissions,” and to have suffered damages in the minimum amount of $2,200,000 as a result of the fraud. Id. ¶ 8; Compl. ¶ 33, 38, 43.

B. Defendants’ New York Contacts

Yu is a resident of Hong Kong. Elva Green, Yu’s closely held corporation, is organized under the laws of Hong Kong and has its principal place of business in Hong Kong. See Compl. ¶ 2; Declaration of Anna Yu (“Yu Decl.”) ¶1.

Yu asserts that neither she nor Elva Green has ever had an office in New York, nor has it ever had a bank account, property, employees, or agents in New York. Yu Decl. ¶ 2. Defendants claim that while they had a business relationship with Plaintiff, all supply sources were located in Hong Kong, all communications with these sources occurred in Hong Kong, and all invoices were prepared in China or Hong Kong. Id. ¶¶ 3-4. Yu also states that Plaintiff, not Defendants, pursued the relationship and that Plaintiff visited Defendants in China and Hong Kong many times. Id. ¶¶ 6-7.

Plaintiff’s President, however, contends that Defendants maintained various contacts with New York. See Shaller-Goldberg [510]*510Decl. It is undisputed that Defendants regularly sent shipments of clothing and invoices to Plaintiff in New York, Id. ¶¶ 6-7; Compl. ¶¶ 12-23, and regularly called and emailed with Plaintiff in New York. Id. Plaintiff also contends that all payments to Defendants were from a New York bank account. Id. ¶ 9.

It is also undisputed that Yu, on behalf of Elva Green, met with Plaintiff in New York. Id. ¶ 4. According to Plaintiff, Yu came to New York to discuss business on at least three occasions and the parties negotiated the terms of their relationship on Yu’s first visit to New York. Id. ¶ 4-5. Yu, however, contends that her visits to New York were for personal, not business purposes, and that she only visited Plaintiff as a courtesy. Yu Decl. ¶ 4-5. According to Yu, the only business discussed during her visits to New York was how to establish a payment schedule on amounts due to Elva Green and the factories. Id. ¶ 5. Yu contends that no contract was signed, no orders were placed, and no other business was discussed while she was in New York. Id.

II. Legal Standard

C. Rule 12(b)(2) Motion to Dismiss:

Lack of Personal Jurisdiction

“A plaintiff opposing a motion to dismiss under Rule 12(b)(2) for lack of personal jurisdiction has the burden of establishing that the court has jurisdiction over the defendant.” BHC Interim Funding, LP v. Bracewell & Patterson, LLP, 02 Civ. 4695 (LTS) (HBP), 2003 WL 21467544, at *1 (S.D.N.Y. June 25, 2003) (citing Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999)). To meet this burden, the plaintiff must plead facts sufficient for a prima facie showing of jurisdiction. Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir.2001). The court construes all of the plaintiffs allegations as true and resolves all doubts in its favor. Casville Invs., Ltd. v. Kates, 12 Civ. 6968 (RA), 2013 WL 3465816, at *3 (S.D.N.Y. July 8, 2013) (citing Porina v. Marward Shipping Co., 521 F.3d 122, 126 (2d Cir.2008); Martinez v. Bloomberg LP, 883 F.Supp.2d 511, 513 (S.D.N.Y.2012)).

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Bluebook (online)
169 F. Supp. 3d 504, 2016 U.S. Dist. LEXIS 32081, 2016 WL 1049020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minnie-rose-llc-v-yu-nysd-2016.