A federal judge from Western District of Pennsylvania has dismissed the breach of contract claim of a sports agent, who sued a French sports agency to recover fees that he alleged were owed to him.
Plaintiff Gary Ebert is an international basketball agent living in Louisiana who represented several professional basketball players.
In 2005, Ebert and individual defendant Pascal Levy, a French citizen living in France, entered into an oral agreement whereby Levy would assist Ebert in placing players on French basketball teams in exchange for a share of the agency fees. Following the players’ placement on teams, Levy allegedly failed to pay Ebert’s share of certain fees and failed to diligently collect others. Beginning in 2006, Ebert repeatedly demanded that Levy comply with his obligations. In 2012, Levy became an employee and partial owner of Fusion, a French sports management company founded by Hirant Manakyan, a French resident and citizen. Herman Manakyan, a Maryland resident and United States citizen, originally worked as a consultant for Fusion, but has since become a partial owner. Ebert sued Levy individually as well as Fusion.
Much of the court’s analysis centered on whether it had personal jurisdiction over the defendants.
“The work of identifying French teams to hire Ebert’s clients was to be performed in France by Levy,” wrote the court. “This fact weighs against this court’s exercise of personal jurisdiction. Because Ebert’s role was apparently limited to approving the players’ contracts, it is unclear how the 2005 Agreement would ‘cause business activity’ in Louisiana. Likewise, because the 2005 Agreement did not require Ebert to perform his obligations from within Louisiana, any contact deriving from his approval of the players’ contracts results ‘only from the fortuity of [his] residence.’ McFadin v. Gerber, 587 F.3d 753, 761 (5th Cir. 2009).
“Additionally, as the object of the 2005 Agreement was placing the players on French basketball teams and was to be accomplished through Levy’s contacts in France, the ‘hub’ of the parties’ activities under the agreement was France, not Louisiana. McFadin, 587 F.3d at 760-61 (quoting Miss. Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1011 (5th Cir. 1982)) Finally, because Ebert styles himself as an ‘International Basketball Agent,’ his business is, of necessity, not conducted solely in Louisiana.
“Levy remitted at least one payment under the 2005 Agreement to Ebert in Louisiana. While this one factor favors a finding of minimum contacts, see Polythane Sys., Inc. v. Marina Ventures Int’l, Ltd., 993 F.2d 1201, 1206 (5th Cir. 1993), in light of the other factors, the court cannot find on the basis of the material before it that Ebert has carried his burden to show through nonconclusory and supported allegations that Levy has minimum contacts with Louisiana.
In addition to breach of contract, Ebert also alleged a breach of fiduciary duty, detrimental reliance, conversion, and tort fraud.
“Although the Fifth Circuit separates the jurisdictional analysis of contract claims from that of tort claims, see, e.g., McFadin v. Gerber, 587 F.3d 753, 761-62 (5th Cir. 2009), this is not required where non-contract claims are ‘essentially a restatement of [a] breach of contract claim, First Metro. Church, 616 F. App’x at 149,” according to the court. “Here, the factual predicate for Ebert’s non-contract claims is Levy’s failure to pay monies allegedly due under the 2005 Agreement. Hence, these claims merely restate the breach of contract claim and so do not require separate analysis.
“Even if Ebert’s non-contract claims require their own analysis, his allegations do not establish Levy’s minimum contacts with Louisiana. Ebert conclusory alleges that Levy ‘breached his fiduciary duty owed to Plaintiff by making material misrepresentations and omissions, by failing to disclose material facts regarding the status of funds collected from the three contracts, and by placing Defendants’ interests ahead of the interests of the Plaintiff.’ Although personal jurisdiction exists when the ‘actual content of communications with a forum gives rise to [an] intentional tort,’ Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 213 (5th Cir. 1999), Ebert has specifically alleged neither what misrepresentations Levy made nor whether those misrepresentations occurred during a communication from Levy to Ebert while the latter was in Louisiana. In fact, it appears the ‘fraud’ that Ebert believes has been committed is Levy’s alleged failure to comply with the 2005 Agreement. As a result, the Court cannot find that Ebert has stated a prima facie case for Levy’s minimum contacts with Louisiana for the non-contract claims.”
The court concluded that because Ebert “has established minimum contacts on neither the contract claims, nor the non-contracts claims,” that it “need not analyze the remaining two prongs of the specific personal jurisdiction test. The Court concludes, based on the evidence before it, that Ebert has not established a prima facie case for specific personal jurisdiction over Levy.”
Gary Ebert v. Pascal Levy, et al.; W. D. La.; CIVIL NO.: 17-0925, 2018 U.S. Dist. LEXIS 26101; 2/15/18
Attorneys of Record: (for plaintiff) Gary Ebert, Pro se, Bossier City, LA. (for defendants) David Jonathan Hemken, LEAD ATTORNEY, David Logan Schroeder, Cook Yancey et al, Shreveport, LA.
