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Europlay Capital Advisors, LLC v. Joensen

United States District Court, C.D. California

July 10, 2017


          Present: The Honorable CHRISTINA A. SNYDER


         Proceedings: DEFENDANT'S MOTION TO DISMISS (Dkt. 11, Filed May 4, 2017)


         On December 14, 2016, plaintiff Europlay Capital Advisors, LLC ("ECA") filed this action in Los Angeles County Superior Court against defendant Maria Louise Joensen p.k.a Aura Dione alleging (1) breach of oral contract; (2) common count for money had and received; and (3) intentional misrepresentation - fraud. Dkt. 1, Ex. A. ("Compl."). On March 28, 2017, defendant removed the state court action to this Court on the basis of diversity jurisdiction. Dkt. 1.

         On May 4, 2017, defendant filed a notice of motion and motion to dismiss the complaint on forum non conveniens grounds. Dkt. 11 ("MTD"). In support of the motion to dismiss, defendant filed numerous declarations and exhibits. Dkts. 11-2 through 11-27. On June 5, 2017, plaintiff filed an opposition, dkt. 16 ("Opp'n"), as well as a request for judicial notice, dkt. 17. Defendant filed a reply on June 26, 2017, dkt. 18 ("Reply"), supported by a series of reply declarations and a request for judicial notice, dkts. 18-2 through 18-18.

         Having carefully considered the parties' arguments, the Court finds and concludes as follows.


         A. Plaintiffs Allegations

         Plaintiff ECA alleges the following facts. The defendant Maria Louise Joensen (p.k.a. Aura Dione) is a well-known European recording artist. Compl. ¶ 2. Joensen resided in Los Angeles County, California at the relevant times mentioned in the complaint. Id. In September 2012, Joensen and her Danish legal counsel asked Mark Dyne, Chairman of ECA, to assist and advise her in litigation against her former manager and agent, Khalid Schroeder. Id. ¶ 4. Schroeder had wrongfully asserted ownership over the intellectual property rights to Joensen's musical compositions, including the master recordings. Id. ¶ 5. However, Joensen lacked the resources necessary to fund litigation against Schroeder. Id.

         In or about October 2012, after numerous conversations with Joensen at the ECA offices in Sherman Oaks, California, Dyne orally agreed to retain the law firm of Skadden, Arps, Slate, Meagher & Flom to represent Joensen in connection with the proposed litigation against Schroeder. Id. ¶ 6. All invoices from Skadden were to be addressed to Joensen, care of ECA, and paid by ECA. Id. ECA alleges that Joensen agreed to repay ECA the total amount of money advanced on her behalf within twelve months of the conclusion of the litigation against Schroeder, regardless of the outcome. Id.

         On or about October 31, 2012, the Skadden firm, acting on Joensen's behalf, commenced a suit against Schroeder in California ("the Schroeder litigation").[1] Id. ¶ 7. As the Schroeder litigation progressed, ECA kept Joensen aware of mounting legal fees and costs both orally and in writing. Id. Joensen allegedly did not object to the fees and repeatedly assured Dyne that ECA would be paid in full for all fees and costs advanced on her behalf. Id.

         On or about December 30, 2015, a judgment was entered against Schroeder and his management company in the Schroeder litigation. Id. ¶ 8. The court awarded damages in favor of Joensen in the amount of $900, 000, plus $788, 000 in lost profits, and $1 in punitive damages. Id. The court awarded Joensen sole and exclusive ownership of the master rights to all of her musical compositions. Id. Joensen allegedly thanked Dyne for advancing the funds for the Schroeder litigation and reassured him that repayment would be made within twelve months of the conclusion of the litigation. Id. ¶ 9.

         Joensen never paid ECA for the money advanced on her behalf. Id. In January 2015, Joensen "fled" California and returned to Denmark to "avoid this and other litigation in which she was involved." Id. ¶ 10.

         In February and March of 2015, Dyne met with a different attorney that Joensen had retained. Brad Kane, to discuss the payment due to ECA. Id. ¶ 11. ECA provided bills for Kane to review, but Kane later resigned from representing Joensen. Id. In April 2015, Dyne met with Joensen at the ECA offices in Sherman Oaks, California, to again discuss the payment of legal fees. Id. ¶ 12.

         ECA allegedly paid Skadden in excess of $2, 000, 000 with the expectation that Joensen would repay ECA within twelve months of the conclusion of the Schroeder litigation. Id. ¶ 21. Joensen has not repaid any part of this sum of money, although ECA has demanded that she do so. Id. ¶ 22. ECA alleges that Joensen breached the oral agreement by refusing to repay ECA for funds advanced on her behalf. Id. ¶ 18.

         Joensen allegedly stated repeatedly that "she did not care what it cost to prosecute the [Schroeder] litigation; that the album masters she sought to recover were worth millions; that she would repay ECA . . . [and] that she was a women [sic] of her word and could be trusted to repay her obligation to ECA in full." Id. ¶ 25. ECA alleges that Joensen made the foregoing representations throughout the Schroeder litigation with the intent to induce ECA to continue to advance funds. Id. ¶ 26. ECA contends that Joensen secretly had no intention to repay ECA once she achieved a favorable result in the Schroeder litigation. Id. ¶ 28. Joensen allegedly knew that her statements to ECA were false and misleading, id ¶ 32, and "used and abused" ECA's goodwill to her advantage, id. ¶ 34.

         B. Defendant's Showing on the Motion to Dismiss

         Joensen introduces the following information in support of her motion to dismiss under the doctrine of forum non conveniens.

         Joensen characterizes this action as part of a "scorched-earth litigation campaign" brought against her by an ex-fiance, Janus Friis, after the termination of their relationship. Dkt. 11-10, Joensen Decl. ¶ 24. Friis is a Danish entrepreneur and billionaire well-known for co-founding Skype. Id. ¶ 3. Dyne, the Chairman of ECA, was a "friend and business associate of Friis and had served on Skype's board of directors from its formation." Id. ¶ 11. Dyne "often assisted Friis with business and personal matters when requested." Id. Joensen alleges this action "is simply the most recent litigation assault by Friis in a raft of cases he or entities under his control or acting on his behalf have brought against her.[2] Id. ¶ 24. The present action is the third case brought against Joensen in California since mid-2015. Id. In total, there are currently six actions pending between Joensen and her representatives and Friis and his affiliated entities. Dkt. 11-8, Vejby Decl. ¶ 8.

         Here, Joensen claims that when Friis first learned of the music rights dispute with her former manager, Schroeder, Friis "assumed control" and hired a team of lawyers and consultants to represent Joensen at his expense. Joensen Decl. ¶ 5. Friis asked his Danish counsel. Actio Law Firm ("Actio"), to bring legal claims against Schroeder. Id. The principal attorneys at Actio, Balle and Christensen, informed Joensen that she was their client, but Friis would pay their fees. Id. Joensen avers that Friis "took great care to avoid disclosing the expenses" and told her that "he was happy to pick up expenses related to the attorneys' work." Id. ¶ 6.

         In the fall of 2012, Friis advised Joensen it might be necessary to engage counsel in the United States to commence an action against Schroeder in the United States. Id. ¶ 10. Friis and Dyne recommended Lance Etcheverry, a partner at Skadden, to represent Joensen in the California arm of their efforts against Schroeder. Id. ¶ 12. Joensen trusted Friis's and Dyne's judgement and agreed that Skadden should be retained to pursue the Schroeder litigation in California. Id. Joensen claims that she never executed a retainer agreement with Skadden, and Skadden has been unable to locate an engagement letter in response to her request for a copy. Id. ¶ 13.

         Joensen alleges that she never saw any of Skadden's invoices during the Schroeder litigation. Id. ¶ 19. Joensen claims that she never promised or represented to Dyne that she would pay Skadden's fees or reimburse ECA. Id. All of Skadden's invoices, except for the last one or two, were sent to ECA. Id. ¶ 20. After Joensen's relationship with Friis ended in December 2014, Skadden sent its final invoices to Joensen's Los Angeles-based lawyer, Brad Kane, "most likely at Dyne's instructions." Id. ¶ 20. Joensen had retained Kane to speak with Dyne about resolving Friis's demands. Id. ¶ 17.

         Starting in January 2015, Joensen alleges that Dyne began making "explicit threats of litigation and other punitive actions" on behalf of Friis if she did not agree to repay funds that Friis had spent in support of her music career and living expenses. Id. ¶ 16. In his declaration, Kane claims that he spoke with Dyne, and the two discussed Skadden's fees. Dkt. 11-6, Kane Decl. ¶ 4-5. According to Kane, Dyne never claimed or represented that Joensen had agreed to repay ECA for Skadden's fees. Id. ¶ 9. Kane states that Dyne told him Joensen must repay the fees "given the end of [her] relationship" with Friis. Id. ¶ 5.

         Joensen avers that Friis and entities acting on his behalf are intent to litigate in California, rather than Denmark, to subject her to "intrusive discovery to obtain evidence of alleged affairs, a topic with which [Friis] is obsessed, and to impose serious inconvenience and expense." Joensen Decl. ¶ 24.


         Defendant brings this motion to dismiss under the doctrine of forum non conveniens. MTD at 1. Generally, "[i]n dismissing an action on forum non conveniens grounds the court must examine: (1) whether an adequate alternative forum exists, and (2) whether the balance of private and public interest factors favors dismissal." Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir. 2001). "The forum non conveniens determination is committed to the sound discretion of the trial court." Piper Aircraft Co. v. Revno. 454 U.S. 235, 257 (1981). It is "an exceptional tool to be employed sparingly, " and not a "doctrine that compels plaintiffs to choose the optimal forum for their claim." Dole Food Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002) (quoting Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000)). "[T]he standard to be applied is whether . . . defendants have made a clear showing of facts which . . . establish such oppression and vexation of a defendant as to be out of proportion to plaintiffs convenience, which may be shown to be slight or nonexistent. . . ." Cheng v. Boeing Co.. 708 F.2d 1406, 1410 (9th Cir.1983). "Where the plaintiff is a United States citizen, the defendant must satisfy a heavy burden of proof." Lueck, 236 F.3d at 1143. Ordinarily "[t]he plaintiffs choice of forum will not be disturbed unless the 'private interest' and 'public interest' factors strongly favor trial in the foreign country." Id. at 1142-43.


         The Court will discuss each set of factors below in order to evaluate whether a dismissal for forum ...

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