United States District Court, C.D. California
Present: The Honorable CHRISTINA A. SNYDER
CIVIL MINUTES - GENERAL
DEFENDANT'S MOTION TO DISMISS (Dkt. 11, Filed May 4,
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.
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
carefully considered the parties' arguments, the Court
finds and concludes as follows.
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.
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.
about October 31, 2012, the Skadden firm, acting on
Joensen's behalf, commenced a suit against Schroeder in
California ("the Schroeder
litigation"). 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.
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.
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.
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.
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.
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.
Defendant's Showing on the Motion to Dismiss
introduces the following information in support of her motion
to dismiss under the doctrine of forum non
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. 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.
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.
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.
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.
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.
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.
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.
Court will discuss each set of factors below in order to
evaluate whether a dismissal for forum ...