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McGlasson v. BYB Extreme Fighting Series, LLC

United States District Court, C.D. Illinois

May 18, 2017

JOHN B. MCGLASSON, JR., Plaintiff,
v.
BYB EXTREME FIGHTING SERIES, LLC, a Florida limited liability company, MICHAEL VAZQUEZ, and DHAFIR “DADA 5000” HARRIS, Defendants.

          ORDER AND OPINION

          James E. Shadid Chief United States District Judge.

         This matter is now before the Court on Defendants' BYB Extreme Fighting Series, LLC and Michael Vazquez's Motion [9] to Dismiss, Plaintiff McGlasson's Motion [15] for Default Judgment and Entry of Default against Defendant Harris, and Defendant Harris' Motion [17] to Dismiss and Quash Service. For the reasons set forth below, Defendants' Motions [9] [17] are GRANTED and Plaintiff's Motion [15] is DENIED.

         Background

         On February 22, 2016, Plaintiff John B. McGlasson, Jr. (“McGlasson”) filed a complaint for damages and equitable relief against BYB Extreme Fighting Series, LLC (“BYB”), Michael Vazquez, (“Vazquez”), and Dhafir “DADA 5000” Harris (“Harris”) in the Circuit Court of the Tenth Judicial Circuit of Peoria County, Illinois. McGlasson v. BYB Extreme Fighting Series, LLC, et al., Case No. 2016-CH-63 (Feb. 22, 2016). On June 14 and June 20, 2016, respectively, BYB and Vazquez were served with the Summons and Complaint. According to a process server's affidavit of service, Defendant Harris was served by way of substitute service on June 18, 2016 by leaving a copy of the Summons and Complaint with Harris' son, Dhafir Harris Jr., at 10421 SW 179th Street in Miami, Florida. McGlasson is a citizen of Illinois; BYB is a Florida limited liability company with its principal place of business in Florida. BYB has one member, Lights Out Productions, LLC (“Lights Out”). Lights Out consists of two members, Vazquez and Jose M. Suris, who are both citizens of Florida. Defendant Harris is a citizen of Florida. On July 12, 2016, Defendants BYB and Vazquez removed this action to the United States District Court for the Central District of Illinois under 28 U.S.C. §§ 1441 and 1332(a).[1]

         (A) Plaintiff's Complaint and Amended Complaint

         Unless otherwise noted, the following facts are taken from Plaintiff's Amended Complaint. Doc. 8. Plaintiff McGlasson is in the business of music production and promotion and he creates television and film concepts. He is also the founder of OIE Creative, an independent record label, and MYTVNOW.com, an independent web-based television startup company. In late 2011, McGlasson created the television series concept known as “Fightship, ” which involves mixed martial arts (“MMA”) fighters in a tournament on board a ship sailing on international waters. Fightship was envisioned as a reality-based television series with global syndication, live pay-per-view events, and international mass-merchandising sales. In late 2012, McGlasson began working with Harris to secure a television production agreement for Fightship, featuring Harris as co-host and later as host of the series. In September 2013, McGlasson sent Harris copies of an agreement memorializing the alleged partnership between McGlasson, Harris, and Tineo, but Harris never signed the documents.

         McGlasson and Harris worked together through January 31, 2015, after which the relationship fell apart and Harris ceased communication with McGlasson. During a January 31, 2015 phone call, Harris informed McGlasson that he had secured Vazquez as an investor and partner in BYB. Harris informed McGlasson during this call that Defendant Vazquez “loves Fightship” and wanted McGlasson to “get to Miami in the next two weeks to meet [Vazquez] and make a deal” regarding Fightship, and that they were ready to schedule the first BYB/Fightship event. On April 15, 2015, McGlasson overheard a telephone conversation between Harris and McGlasson's former business partner, Charlene Tineo, during which Harris allegedly told Tineo that “I'm stealing John (McGlasson's) idea, I'm doing it. This is the United States of America and I can do what I want.” On April 25, 2015, BYB announced the Battleship I event, scheduled for June 5, 2015. It was billed as a mixed martial arts-style tournament fight on board a ship sailing off the Florida coast, which Plaintiff alleges is “a clear and blatant infringement upon the intellectual property created and owned by Plaintiff.”

         In the interim, Tineo began negotiating a production partnership with Ultimate Fighting Championship (“UFC”) fighter Frank Shamrock, which would involve a production agreement with Viacom/Spike Network or a television network of similar or greater stature to air Fightship on television as early as 2016. During a March 6, 2015 phone call between Shamrock, Tineo, and McGlasson, Shamrock said that in exchange for his percentage of ownership in Fightship as part of the overall agreement, that he had access to funding from boxers such as Oscar Delahoya and Floyd Mayweather Jr., and that “[t]he president of Spike Network asked me directly to bring him combat-sports related content.” On March 12, 2015, Tineo, Shamrock, his attorneys Montaneri and Musacchio, and McGlasson agreed upon partnership terms regarding the long-term production and marketing of the Fightship television series, which was to include the Fightship television series, live pay-per-view events, live events on land, and an extensive merchandise line. Plaintiff does not state whether the meeting was in person, where it occurred, or where the contract was formed.

         McGlasson made his new partners aware of the possible theft of Plaintiff's Fightship venture by Defendants' Battleship spinoff. All partners agreed that the Battleship I event could not be allowed to happen due to possible harm to Fightship's brand at a critical time during negotiations with investors, networks and production companies. All partners agreed that before legal action was taken, Shamrock should attempt to speak with Vazquez to work out an agreement where all parties would all partner together to produce Fightship. This was proposed by Shamrock to Vazquez during a phone call on May 17, 2015. Vazquez refused the offer on the phone call and in a later email. McGlasson also reached out to Vazquez via email on May 11, 2015, explaining that he had created the Fightship concept and had previously worked with Harris to secure a production agreement for Fightship. However, on May 11, 2015, Vazquez emailed Shamrock stating that he was going “full steam ahead” with their planned Battleship event at sea.

         McGlasson served Defendants with a cease and desist order on May 11, 2015 and May 12, 2015 regarding the June 5, 2015 Battleship event.[2] Defendants continued to promote the event post-service. As the June 5, 2015 event drew near, Shamrock informed Tineo and McGlasson that many people in the MMA world were watching Defendants' event as a “trial run” for Fightship, and that if there was a tragic event which created “liability issues” or “image problems” for the brand, networks would be reluctant to produce Fightship. Defendants' event took place as scheduled. Soon after Defendants' event, Shamrock informed McGlasson and Tineo that their “brand has been damaged, people know about the legal battle involving Fightship and nobody will touch Fightship until this is cleared up.” Shamrock saw no choice but to dissolve the partnership and move on from the project.

         Freelance writer Jeb Lund attended the June 5, 2015 Battleship event and wrote an article which was published in the August, 2015 issue of Rolling Stone Magazine entitled “BLOOD BOAT.” Within this article, Harris describes in detail how he was inspired to found BYB and to hold fights at sea. Harris claims credit for the idea in the article and never mentions Plaintiff or the Fightship concept. Plaintiff alleges that “[t]he damage to Plaintiff's intellectual property through the direct actions of Defendants is terminal” and “Plaintiff's chances of securing a production contract for his Fightship concept are destroyed through the direct actions of Defendants.”

         McGlasson's Amended Complaint asserts claims for tortious interference with a prospective business relationship, implied contract and unjust enrichment, misappropriation of trade secrets, and for temporary and permanent injunctive relief.

         (B) BYB and Vazquez's Motion to Dismiss for Lack of Personal Jurisdiction

         On August 23, 2016, Defendants BYB and Vazquez filed a Motion to Dismiss (Doc. 9) and Memorandum in support (Doc. 10) alleging that this Court lacks personal jurisdiction over them. Therein, Defendants identify six contacts alleged by Plaintiff:

(i) “one or more Defendants individually or in combination of efforts or results, placed a phone call into Illinois;” (ii) “one or more Defendants individually or in combination of efforts or results . . . sent numerous emails to Plaintiff about the subject matter of this case;” (iii) Plaintiff mailed numerous documents from Illinois to Florida that “Defendants never discouraged him from sending;” (iv) Plaintiff sent a “Cease and Desist” letter to Defendants from Illinois; and (v) Rolling Stone Magazine published an article about Defendants' Battleship I event. (Am. Cmpl. at p. 2.)

Doc. 10, at 3-4. Defendants assert that the above contacts alleged by Plaintiff are insufficient to confer personal jurisdiction over them because BYB and Vazquez never communicated with McGlasson; rather, the contacts are between McGlasson and Harris or McGlasson and an unaffiliated non-party (Shamrock). Additionally, Defendants assert that McGlasson's claim that he mailed numerous documents to Defendants is insufficient to confer ...


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