Revel XP, LLC v. Never Forget Brands, LLC, 2022 NCBC 39.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION FORSYTH COUNTY 22 CVS 384
REVEL XP, LLC,
Plaintiff, ORDER AND OPINION ON MOTION v. TO DISMISS FOR LACK OF PERSONAL JURISDICTION NEVER FORGET BRANDS, LLC d/b/a GAMEDAY VODKA,
Defendant.
1. THIS MATTER is before the Court on Defendant Never Forget Brands, LLC
d/b/a GameDay Vodka’s (“GameDay”) Motion to Dismiss for Lack of Personal
Jurisdiction (the “Motion”) filed on 1 April 2022. (ECF No. 7 [“Mot.”].)
2. Having considered the Motion, the related briefing, affidavits, exhibits, and
arguments of counsel at the hearing on the Motion, the Court hereby DENIES the
Motion for the reasons set forth herein.
Kilpatrick Townsend & Stockton LLP by Whitney R. Pakalka and Richard J. Keshian for Plaintiff Revel XP, LLC.
Wyatt Early Harris Wheeler LLP by Scott F. Wyatt and Donavan John Hylarides, and The Law Office of L.W. Cooper, Jr. by Nicholas P. Tierney, pro hac vice, for Defendant Never Forget Brands, LLC.
Robinson, Judge
I. INTRODUCTION
3. Plaintiff Revel XP, LLC, (“Revel”) contends that GameDay breached a
marketing agreement between the parties by ceasing to pay Revel for its marketing services. GameDay moves to dismiss Revel’s claims against it, pursuant to Rule 12(b)(2)
of the North Carolina Rules of Civil Procedure (“the Rule(s)”) on the grounds that
GameDay is not subject to personal jurisdiction in North Carolina.
4. The parties have each submitted briefing and evidence in the form of
affidavits and exhibits in support of and in opposition to GameDay’s Motion. The Court
held a hearing on 15 June 2022. Having considered all relevant matters, the Court
finds the following facts by a preponderance of the evidence and makes the following
conclusions of law.
II. FINDINGS OF FACT
5. Revel is a North Carolina Limited Liability Company with its principal place
of business in Winston-Salem North Carolina, which hosts, staffs and promotes events
for professional and collegiate sports fans. (Machosky Aff. ¶¶ 29–32, ECF No. 19.)
Revel contracts with collegiate and professional sports teams for the right to host and
staff special events, including tailgate parties, and Revel grants sponsorship rights to
vendors looking to promote their brands at these events. (Machosky Aff. ¶¶ 14–17, ECF
No. 19.)
6. Revel is owned in majority by Teall Sports & Entertainment, LLC, which in
turn is owned and managed by Teall Capital, based in Winston-Salem, with offices at
500 West Fifth Street (Suite 1200), Winston-Salem, North Carolina. (Machosky Aff. ¶¶
8–12.) 7. GameDay is a South Carolina Limited Liability Company with its principal
place of business in Charleston, South Carolina. (David Aff. ¶ 5, ECF No. 9.4.)
GameDay markets, distributes, and sells vodka and related products. (David Aff. ¶ 5.)
8. GameDay has licensure agreements and partnerships with collegiate and
professional sports teams in the states of South Carolina, Texas, Florida, Tennessee,
New York, Louisiana, Maryland, and Colorado. (See David Aff. ¶ 6.) GameDay does
not have any partnerships, licensure agreements, affiliations, or agreements with any
college or professional sports entities in North Carolina. (David Aff. ¶ 7.)
9. GameDay is not registered to do business in North Carolina, does not have a
license to sell liquor in North Carolina, and does not maintain any physical location or
own real property in North Carolina. (Nieves Aff. ¶¶ 31–34, ECF No. 9.5; David Aff. ¶
32.)
10. Revel’s Director of Business Development, Glenn Gronkowski (“Gronkowski”)
initiated contact with GameDay in February 2021 after seeing GameDay Vodka
billboards in Tampa, Florida while traveling there for the Super Bowl. (Machosky Aff.
¶¶ 43, 46–48.) Gronkowski messaged Ray Horal (“Horal”), GameDay’s Chief Sales
Officer, via LinkedIn on 18 February 2021 and said that Revel’s services “might be a
great way for [GameDay] to be a part of our platform and drive additional sales at ‘game
days’ across America. Would love to discuss further if interested.” (Machosky Aff. Ex.
A., ECF No. 19.1.)
11. Horal followed-up on 19 February 2021 and provided an 85-page “Brand
Deck” to Gronkowski and explained that GameDay was “deep into the planning process of a rather disruptive 2021 GameDay Tailgate Tour that’ll run throughout FL, GA, SC,
TX, LA, CO, MD, & numerous other markets.” (Def.’s Ex. 3, ECF No. 9.3 [“Horal
Email”].)
12. From February 2021 through 3 March 2021, Revel employee AJ Machosky
(“Machosky”) engaged in exploratory discussions with GameDay employees Horal,
Charles Nieves (“Nieves”), and Giuliana Rossi (“Rossi”) regarding a potential
relationship between Revel and GameDay. (Machosky Aff. ¶¶ 53–56.)
13. All negotiations between Revel and GameDay took place remotely via phone
calls and videoconferences. (David Aff. ¶ 14.) None of the participants in these
conversations were physically located in North Carolina except as described in
paragraph 17 infra. (David Aff. ¶ 13.)
14. On 4 March 2021, Horal sent Machosky a 30-page presentation (the
“GameDay Pitch Deck”) created by GameDay, which discussed a potential marketing
partnership between Revel and GameDay. (Machosky Aff. ¶ 56, Machosky Aff. Ex. D,
ECF No. 19.4 [“GameDay Pitch Deck”].)
15. Page 10 of the GameDay Pitch Deck is titled “Distribution Roadmap” and
contains a list of U.S. markets in which GameDay intended to begin distributing its
vodka. (See GameDay Pitch Deck 10.) North Carolina is the first state GameDay listed
for the year 2022. (See GameDay Pitch Deck 10.)
16. Page 11 of the GameDay Pitch Deck, titled “Partnership Roadmap,” contains
a list of collegiate and professional sports organizations with which GameDay sought to
establish partnerships during each year from 2021–23. (See GameDay Pitch Deck 11.) Duke University, located in Durham, North Carolina, is listed as a partner for the year
2023. (See Pitch Deck 11.)
17. On 24 March 2021, Machosky participated in a videoconference with Horal
and Rossi and presented Revel’s proposal for a marketing agreement with GameDay
(the “24 March Zoom Call”). (Machosky Aff. ¶ 62.) Machosky, although a resident of
Michigan, was in Charlotte, North Carolina during the 24 March Zoom Call because he
was involved in one of Revel’s Topgolf Live events taking place at Charlotte’s Bank of
America Stadium. (Machosky Aff. ¶ 64–65.) During the 24 March Zoom Call, Machosky
presented a pitch deck prepared by Revel (the “Revel Pitch Deck”) to GameDay
representatives. (Machosky Aff. Ex. E, ECF No. 19.5 [“Revel Pitch Deck”].)
18. Page 3 of the Revel Pitch Deck contains a map of Revel’s existing collegiate
and professional sports partnerships, including four universities in North Carolina.
(Revel Pitch Deck 3.) During the presentation, Horal indicated to Machosky that
GameDay wished to expand into North Carolina. (Machosky Aff. ¶ 74.)
19. Following the 24 March Zoom Call, Revel and GameDay, with the assistance
of legal counsel, exchanged drafts of a proposed written marketing agreement.
(Machosky Aff. ¶ 76.)
20. On 20 May 2021, the parties finalized the terms of a written marketing
agreement (the “Agreement”), which was signed by Machosky on behalf of Revel and by
Zach David on behalf of GameDay. (Machosky Aff. ¶ 80; Marketing Agreement 1, 9
[“Agrmt.”].) The Agreement was executed by use of DocuSign, and none of the
signatories were located in North Carolina at the time of execution. (David Aff. ¶ 14.) 21. The Agreement, in its opening paragraph, identifies Revel as a North
Carolina limited liability company. (Agrmt. 1.)
22. The Agreement commenced on 20 May 2021 and is set to expire on 30 June
2025. (Agrmt. ¶ 2.)
23. The Agreement states that “[t]his Agreement shall be governed by and
interpreted in accordance with the laws of the State of Delaware, without application of
its conflicts of laws provisions.” (Agrmt. ¶ 25.)
24. The Agreement requires GameDay to make periodic payments to Revel.
GameDay is to “submit each payment by check, wire transfer, or Quickbooks invoice
payment. If [GameDay] pays by check, then [GameDay] should send the check, together
with an invoice identifying this Agreement, to the below remittance address, unless and
until [Revel] directs otherwise.” (Agrmt. ¶ 5.) The provided remittance address for
check payments is a Winston-Salem, North Carolina address which corresponds with
Revel’s principal place of business. (See Agrmt. ¶ 5.)
25. Under the Agreement, Revel is to develop and oversee tailgate parties at
sporting events featuring GameDay products. As a part of its performance under the
Agreement, “[Revel] is responsible for providing, transporting, maintaining, setting up,
taking down and replacing all equipment and physical assets used at Events and that
are used to provide Marketing Activities.” (Agrmt. ¶ 10(a).)
26. GameDay is to make scheduled payments to Revel. In addition, the
Agreement requires that GameDay and Revel enter into written Statements of Work
(“SOWs”), which set forth “the scope and value of the Marketing Activities to be provided by [Revel] to [GameDay].” (Agrmt. 10–12.) A form SOW is attached to the
Agreement as Exhibit B, and requires the title, date, location of the event, the
marketing activities to take place, the value of the marketing activities, and any
additional provisions related to the event. (Agrmt. 13.) Each SOW stated in the opening
paragraph that Revel is “a North Carolina limited liability company.” (Strickland Aff.
¶ 10, ECF No. 21.)
27. Pursuant to the Agreement, Revel assigned Kasey Strickland (“Strickland”),
a Revel employee, to be a dedicated staff member to effectuate GameDay’s events,
marketing and promotional activities. (David Aff. ¶ 21, Strickland Aff ¶ 7.)
28. Strickland was located in Alabama at all times relevant to the Agreement,
and along with Machosky, generated all SOWs. (David Aff. ¶ 23.)
29. Strickland was responsible for implementing activities and services described
in SOWs, including coordinating physical set-ups, third-party vendors, and catering
services at events under the Agreement. (Strickland Aff. ¶ 12.)
30. Exhibit D to the Agreement, titled “Revel XP Properties,” includes a list of
collegiate and professional sports entities with which Revel has an existing relationship.
These include the University of North Carolina, North Carolina State University, and
Wake Forest University, all located in North Carolina. (Agrmt. 15.)
31. No events or signed SOWs arising out of the Agreement expressly called for
hospitality services, activities or events to be performed or take place in North Carolina.
(David Aff. ¶ 18.) 32. No events for which SOWs were prepared and executed ever occurred in
North Carolina. (Nieves Aff. ¶ 23.)
33. Charles Nieves (“Nieves”), GameDay’s Vice President of Marketing and
primary point of contact with Revel regarding the Agreement, claims that he was never
informed that any North Carolina-made product or North Carolina vendor was to be
used in conjunction with the Agreement, Event, or SOW-related activity. (Nieves Aff ¶
25.)
34. Beginning in July 2021, GameDay asked Strickland to procure a variety of
branded items with GameDay’s logos and designs to be used at events hosted or
sponsored by GameDay under the Agreement, including drink coolers, photo-op
backdrops, and carafes. (Strickland Aff. ¶ 27.) Strickland and other Revel employees
identified Symphonix Solutions of Charlotte, North Carolina (“Symphonix”) as a vendor
that could provide these items. (Strickland Aff. ¶ 27.) On 13 August 2021, Strickland,
through email, introduced Nieves to Symphonix employees. (Strickland Aff. ¶ 29.)
Nieves then communicated directly with Symphonix and discussed GameDay’s need for
photo backdrops which Symphonix could provide. (Strickland Aff. Ex. E, ECF No. 21.5.)
The Symphonix employees with whom Nieves communicated had email signatures
identifying that Symphonix is located in Charlotte, North Carolina. (See Strickland Aff.
Ex. E.) Following Nieves’s direct communication with Symphonix, on 28 September
2021, Nieves and Machosky executed SOW No. 39 authorizing the purchase of branded
drink coolers from Symphonix. (Strickland Aff. Ex. B, ECF No. 21.2 [“SOW No. 39.”].)
On 5 October 2021, Nieves and Machosky executed SOW No. 44 authorizing the purchase of carafes from Symphonix. (Strickland Aff. Ex. C, ECF No. 21.3.) GameDay
also asked that Revel obtain branded umbrellas, which Revel sourced from US
Umbrellas in Durham, North Carolina (“US Umbrellas”) and which the parties
memorialized in a SOW. (Strickland Aff. ¶ 32.)
35. On 5 August 2021, Nieves and Machosky executed SOW No. 19. (Strickland
Aff. Ex. A., ECF No. 21 [“SOW No. 19”].) SOW No. 19 reflects the design and purchase
by Revel of branded canvas tent tops for GameDay to use at events it intended to
sponsor under the Agreement. (Strickland Aff. ¶ 13.) One of the tent tops was co-
branded with GameDay and the University of South Carolina. (Strickland Aff. ¶ 15.)
Revel does not have a warehouse in South Carolina and requested that the University
of South Carolina tent top be delivered to Revel in Winston-Salem, North Carolina
instead. (Strickland Aff. ¶ 15.) Upon receipt of the tent top in Winston-Salem, Revel
shipped the tent top from Winston-Salem to a third-party tent company in South
Carolina for future use at events in that state. (Strickland Aff. ¶ 16.) The SOW
indicates on page one that the University of South Carolina tent top was to be shipped
to Winston-Salem, North Carolina. (SOW No. 19 at 1.)
36. On 6 October 2021, GameDay published a variety of images and written
material on its website and social media pages in honor of National Coaches’ Day,
writing that “we wanted to highlight some of the most impactful coaches from some
of our partners.” (Charbonneau Aff. Exs. A–C, ECF Nos. 22.1–22.3 (emphasis
added).) Duke University’s Mike Krzyzewski is the first coach listed and profiled on
GameDay’s webpage. (Charbonneau Aff. Ex. B.) 37. GameDay made four regular payments to Revel under the Agreement. (See
Hill Aff. Ex. B, ECF No. 20.2 [“Revel Invoices”].) Revel billed GameDay by submitting
invoices which directed GameDay to submit payment to Revel in Winston-Salem. (Hill
Aff. ¶ 33.) The first invoice was sent to GameDay on 1 July 2021 in the amount of
$500,000, the second invoice was sent to GameDay on 1 September 2021 in the amount
of $225,000, the third invoice was sent to GameDay on 1 October 2021 in the amount of
$225,000, and the fourth invoice was sent to GameDay on 1 November 2021 in the
amount of $225,000. (Revel Invoices 1–4.) GameDay paid each of these invoices,
totaling $1,175,000, in 2021 by remitting a series of Automated Clearing House
payments to Revel’s BB&T bank accounts. (Hill Aff. ¶ 32.)
38. GameDay refused to pay further invoices beginning with the 1 December
2021 invoice in the amount of $225,000. (Hill Aff. ¶ 33.)
39. In addition, GameDay has not paid Revel for more than $100,000 of services
provided by third parties that Revel coordinated at GameDay’s request. (Hill Aff. ¶ 43.)
40. On 31 December 2021, GameDay sent a letter, addressed to Revel, by e-mail
to Machosky and in paper-copy to Revel’s Winston-Salem office. In the letter, GameDay
alleged that Revel was in breach of the Agreement and that GameDay intended to
terminate the Agreement. (Machosky Aff. ¶¶ 89–91; Machosky Aff. Ex. G.) This lawsuit
followed. III. PROCEDURAL HISTORY
41. On 21 January 2022, Revel filed its Complaint. (ECF No. 3.) On 28 February
2022, this matter was designated to the North Carolina Business Court and assigned
to the undersigned. (See Designation Or., ECF No. 1, Assignment Or., ECF No 2.)
42. On 1 April 2022, GameDay filed the Motion.
43. The Motion has been fully briefed and the Court held a hearing on the Motion
on 15 June 2022 at which all parties were represented by counsel. (See Not. of Hearing,
ECF No. 25.)
44. The Motion is ripe for determination.
IV. ANALYSIS AND CONCLUSIONS OF LAW1
45. “When a defendant challenges the court's jurisdiction under Rule 12(b)(2), the
burden falls on the plaintiff to establish that grounds for asserting [personal]
jurisdiction exist.” AYM Techs., LLC v. Rodgers, 2018 NCBC LEXIS 14, at *6 (N.C.
Super. Ct. Feb. 9, 2018); see also Filmar Racing, Inc. v. Stewart, 141 N.C. App. 668, 671
(2001) (“The burden is on the plaintiff to prove by a preponderance of the evidence that
grounds exist for the exercise of personal jurisdiction over a defendant.”)
46. “In a case where, as here, ‘both parties submit competing affidavits . . . and
the trial court holds a hearing on personal jurisdiction, the trial court should consider
the matter as if an evidentiary hearing had occurred.’ ” Quidore v. Alliance Plastics,
LLC, 2020 NCBC LEXIS 63 at *4 (N.C. Super. Ct. May 19, 2020) (quoting AYM Techs.,
1 Any findings of fact that are more appropriately deemed conclusions of law are incorporated
by reference into the Court’s analysis and conclusions of law. See Sheffer v. Rardin, 208 N.C. App. 620, 624 (2010) (providing that the appellate court will treat findings of fact that are “more properly designated” as conclusions of law as such for the purposes of an appeal). 2018 NCBC LEXIS 14, at *6–7). “In such circumstances, the trial court must ‘act as a
fact-finder, and decide the question of personal jurisdiction by a preponderance of the
evidence[.]’ ” Parker v. Town of Erwin, 243 N.C. App. 84, 97 (2015) (quoting Deer Corp.
v. Carter, 177 N.C. App. 314, 322 (2006)).
47. Notwithstanding the fact that this Court is to find facts from the evidence
presented, there is little dispute between the parties about the relevant facts, as
discussed in paragraphs 5–40 supra. Rather, the dispute between the parties centers
on the legal effect of those facts.
48. In North Carolina, determining whether personal jurisdiction exists is a
“two-step analysis.” Beem USA LLLP v. Grax Consulting, LLC, 373 N.C. 297, 302
(2020). “First, jurisdiction over the defendant must be authorized by N.C.G.S. § 1-
75.4 — North Carolina’s long-arm statute. Second, if the long-arm statute permits
consideration of the action, exercise of jurisdiction must not violate the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitution.” Id.
49. “[B]ecause North Carolina's long-arm statute has been interpreted to allow
the exercise of personal jurisdiction to the fullest extent allowed under the due
process clause, the two-step analysis collapses into one inquiry.” Worley v. Moore,
2017 NCBC LEXIS 15, at *19 (N.C. Super. Ct. Feb. 28, 2017).
50. For a court to exercise personal jurisdiction, “there must be sufficient
minimum contacts between the nonresident defendant and our state such that the
maintenance of the suit does not offend traditional notions of fair play and substantial
justice.” Skinner v. Preferred Credit, 361 N.C. 114, 122 (2006) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (internal quotation marks omitted). As our
Supreme Court explained in Beem:
Personal jurisdiction cannot exist based upon a defendant’s “random, fortuitous, or attenuated” contacts with the forum state, Walden v. Fiore, 571 U.S. 277, 286 (2014) (quoting Burger King, 471 U.S. at 475), but rather must be the result of “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,” Skinner, 361 N.C. at 133 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). As such, a defendant's contacts with the forum state must be such that a defendant "should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); see also Skinner, 361 N.C. at 133 (“A crucial factor is whether the defendant had reason to expect that he might be subjected to litigation in the forum state.”).
373 N.C. at 303 (cleaned up).
51. There are two types of personal jurisdiction: general (or “all-purpose”)
jurisdiction and specific (or “case-based”) jurisdiction. See Beem, 373 N.C. at 303
(citing Daimler AG v. Bauman, 571 U.S. 117, 126-27 (2014)). General jurisdiction
applies where the defendant’s “affiliations with the State are so ‘continuous and
systematic’ as to render them essentially at home in the forum State.” Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting Int'l Shoe,
326 U.S. at 317). Specific jurisdiction focuses on “the relationship among the
defendant, this State, and the cause of action.” Tom Togs, Inc. v. Ben Elias Industries
Corp., 318 N.C. 361, 366 (1986). “There must be some act by which the defendant
purposefully avails himself of the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its laws.” A.R. Haire, Inc. v. St.
Denis, 176 N.C. App. 255, 260, (2006) (citing Dillon v. Numismatic Funding Corp., 291 N.C. 674, 679 (1977)). “In determining minimum contacts, the court looks at
several factors, including: (1) the quantity of the contacts; (2) the nature and quality
of the contacts; (3) the source and connection of the cause of action with those
contacts; (4) the interest of the forum state; and (5) the convenience to the
parties.” Id. (citation omitted). “These factors are not to be applied mechanically;
rather, the court must weigh the factors and determine what is fair and reasonable
to both parties. No single factor controls; rather, all factors must be weighed in light
of fundamental fairness and the circumstances of the case.” Id. (cleaned up).
52. GameDay contends that it is not subject to either general or specific
jurisdiction in this Court. Revel concedes that GameDay is not subject to general
jurisdiction in this Court, arguing instead that GameDay is subject to specific
jurisdiction pursuant to GameDay’s alleged breach of the Agreement. Therefore, the
Court analyzes the facts and law only as they relate to specific jurisdiction.
53. The Supreme Court of the United States has long held that the Due Process
Clause does not preclude a state court from entering a judgment binding on a
contracting party when “the suit was based on a contract which had substantial
connection with that [s]tate.” McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957).
54. There is no mechanical test for determining jurisdiction between
contracting parties. Toshiba Global Commerce Sols., Inc. v. Smart & Final Stores
LLC, 2022-NCSC-81 ¶ 10. The inquiry does not turn on “the place of contracting or
of performance,” nor can “an individual’s contract with an out-of-state party
alone . . . automatically establish sufficient minimum contacts in the other party’s home forum[.]” Burger King Corp v. Rudzewicz, 471 U.S. 462, 478 (1985) (emphasis
in original). Instead, courts are to consider the parties’ “prior negotiations and
contemplated future consequences, along with the terms of the contract and the
parties’ actual course of dealing.” Toshiba Global Commerce Sols., Inc, 2022-NCSC-
81 ¶ 10 (quoting Burger King, 471 U.S. at 479).
55. Weighing all of the evidence, the Court concludes that the parties’ actual
course of dealing and contemplated future consequences demonstrate that the
Agreement has a substantial connection with North Carolina and therefore the
exercise of jurisdiction over GameDay comports with due process. 2
A. Prior Negotiations
56. Revel’s pre-contract dealings with GameDay did not make clear that
GameDay knew it was availing itself of the privilege of doing business in North
Carolina. All of Revel’s primary points of contact were located outside of North
Carolina. Gronkowski, who first solicited GameDay, was located in Texas. Machosky
and Strickland, with whom GameDay generated SOWs, were located in Michigan and
Alabama, respectively. GameDay hosts events nationwide and has employees located
nationwide, and the negotiations took place almost entirely outside of North Carolina.
57. However, these facts alone do not determine whether the Agreement has a
substantial connection with North Carolina. As both Burger King and Toshiba
2 The Court of Appeals has recently issued several opinions discussing the type of intentional contact necessary to support a finding of minimum contacts comporting with due process. See Troublefield v. AutoMoney, Inc., 2022-NCCOA-497; Wall v. AutoMoney, Inc., 2022- NCCOA-498; Hundley v. AutoMoney, Inc., 2022-NCCOA-489; Leake v. AutoMoney, Inc., 2022- NCCOA-490. demonstrate, the fact that pre-contract negotiations occur outside the forum state is
not alone determinative of jurisdiction. In Toshiba, the fact that negotiations took
place remotely between employees located in California and Texas did not preclude a
finding that the contract had a substantial connection with North Carolina. Toshiba
Global Commerce Sols., Inc. v. Smart & Final Stores LLC, 2020 NCBC LEXIS 151,
at *3–4, 13 (N.C. Super. Ct. Dec. 23, 2020). And in Burger King, the Supreme Court
of the United States likewise held that there was sufficient evidence that the
defendant knew he was affiliating with an entity from the forum state even though
the defendant’s dealings were principally with representatives outside the forum
state. See Burger King, 471 U.S. at 480, 487.
58. Further, while initial discussions between the parties may not have focused
on North Carolina as a jurisdiction with significant relationships to the parties’
undertaking, by the time the parties began negotiating a written agreement, it
became clear that the agreement had significant ties to North Carolina. (See
paragraphs 59–60 infra.)
B. Contemplated Future Consequences
59. The record makes clear that GameDay intended to begin doing business in
North Carolina during the term of the Agreement. As GameDay’s “Partnership
Roadmap” and “Distribution Roadmap” clearly show, GameDay hoped to establish a
presence in North Carolina during the span of the Agreement and form a partnership
with Duke University by 2023. (GameDay Pitch Deck 10–11.) GameDay published
on its website and circulated on social media posts featuring Coach Mike Krzyzewski (“Coach K”), Duke University’s nationally known men’s basketball coach. GameDay,
perhaps jumping the gun, errantly categorized Duke University in its publications as
one of its “partners.” (Charbonneau Aff. Exs. A–C.) GameDay knew that Revel had
established relationships with universities in North Carolina and expressly told Revel
that GameDay intended to enter this state. (Machosky Aff. ¶ 74.)
C. Terms of the Agreement
60. The Agreement put GameDay on notice that Revel was headquartered in
North Carolina and that GameDay was expected to regularly send payments into
North Carolina. The opening paragraph of the Agreement states plainly that Revel
is a North Carolina limited liability company, (Agrmt. 1), and paragraph five
contains Revel’s Winston-Salem, North Carolina billing address to which GameDay
was directed to submit payments by check. (Agrmt. ¶ 5). Each form SOW
generated under the Agreement also identifies Revel as a North Carolina limited
liability company. (See Agrmt. Ex. B.) The Agreement is silent as to the place of
performance of the duties under the contract, leaving those to be determined by
each successive SOW. However, the Agreement’s 4-year term, spanning from May
2021 to June 2025 indicates that the parties would, as GameDay represented to
Revel in pre-contract discussions, inevitably expand into North Carolina during the
lifetime of the Agreement. (See GameDay Pitch Deck 10–11.)
61. The agreement has a Delaware choice-of-law provision. (Agrmt. ¶ 25.)
This factor does not favor the exercise of jurisdiction, but neither does it weigh
strongly against jurisdiction given that neither party is organized under Delaware law or based in Delaware. See Tejal Vyas, LLC v. Carriage Park LP, 166 N.C. App.
34, 41 (2004) (“[C]hoice of law clauses are not determinative of personal jurisdiction
. . . .”).
D. The Parties’ Actual Course of Dealing
62. Revel obtained, at GameDay’s request, certain branded goods for GameDay
from North Carolina vendors. Revel argues that the knowing approval by GameDay
of such purchases by Revel demonstrates purposeful availment from GameDay.
GameDay responds that it did not specifically request, nor did it know, that goods
would be procured from North Carolina vendors, and therefore GameDay’s requests
for goods under the Agreement do not constitute purposeful availment of North
Carolina.
63. Our Supreme Court has recognized that, “regular contractual performance
of a contractual obligation . . . is relevant [to a determination of personal jurisdiction]
even if the location of the performance is not dictated by the contract.” Toshiba Glob.
Com. Sols., Inc. v. Smart & Final Stores LLC, 2022-NCSC-81 ¶ 22.
64. Revel had a contractual obligation under the parties’ agreement to provide
and transport all equipment and physical assets used for events and marketing
activities. (Agrmt. ¶ 10(a).) Pursuant to this obligation, Revel was repeatedly asked by
GameDay to procure tailgating equipment: branded coolers, tents, umbrellas, photo
backdrops, and more; many of these products were procured from North Carolina
vendors. (Strickland Aff. ¶ 27.) While GameDay apparently did not initially know that
the products were sourced from North Carolina vendors, GameDay was put on notice that Revel was using North Carolina suppliers to fulfill GameDay’s requests in August
2021. On 13 August 2021, Strickland put Nieves in direct contact with Symphonix, a
company based in Charlotte, North Carolina. (Strickland Aff. ¶ 29.) Nieves explained
that GameDay needed photo backdrops and requested a quote from Symphonix.
(Strickland Aff. Ex. E.) In so doing, GameDay endorsed the prospect of continuing to
source products from a North Carolina vendor under the Agreement. The record
contains no evidence tending to show that GameDay objected to the use of Symphonix
or other North Carolina vendors. Instead, following Nieves’s conversation with
Symphonix, GameDay repeatedly approved and paid Revel for multiple orders of
branded goods sourced from Symphonix. (Strickland Aff. ¶ 30.)
65. It is undisputed that the Agreement and SOWs were not drafted or signed
in North Carolina and that the SOWs never requested marketing activities to be
performed in North Carolina. (Parlor Aff. ¶¶ 15, 20–21, ECF No. 9.6.) However,
GameDay knowingly contracted with a North Carolina company for a period of four
years, during which time GameDay intended to enter North Carolina and make use
of Revel’s existing connections there. From 1 July 2021 to 1 November 2021,
GameDay also sent regular, periodic payments totaling over one million dollars to
Revel in North Carolina. Knowing that Revel used North Carolina vendors,
GameDay continued to request and pay for branded goods from North Carolina
vendors, voiced no objection to Revel’s use of such vendors, and directly
communicated with one of those vendors — Symphonix. 66. Although this is a close case, the parties’ contemplated future consequences
and actual course of dealing support a determination that the Agreement has a
substantial connection with the State of North Carolina and therefore, the exercise
of jurisdiction over GameDay comports with due process. As such, the Court
concludes that it has personal jurisdiction over GameDay.
IV. CONCLUSION
67. For the foregoing reasons, the Court hereby DENIES the Motion.
SO ORDERED, this the 25th day of July, 2022.
/s/ Michael L. Robinson Michael L. Robinson Special Superior Court Judge for Complex Business Cases