Kesha Sebert Moves To Dismiss, 1/14/15

7/21/2019 Kesha Sebert Moves To Dismiss, 1/14/15

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Respectf ly submitte

GERAGO GER APC

By:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

LUKASZ GOTTWALD p/k/a DR. LUKE, et al. :

Plaintiffs,

Index No 653118/2014

Judge Shirley Kornreich

Motion Sequence No.

against-

KESHA ROSE SEBERT p/k/a KESHA,

et al.

Defendants.

X

Pursuant to CPLR 3211(a)(8), 327(a), and 3211(a)(4), Defendant Kesha Sebert moves to

dismiss the First Amended Complaint based on (1) improper service of process, (2) lack of

personal jurisdiction, (3) forum

non conveniens

and (4) another action pending between the parties

on substantially identical issues in Los Angeles, California.

Dated: January 14, 2015

ma Glandian

256 5th Avenue

New York, New York 10001

(213) 625-3900

[email protected]

Attorneys for Defendant Kesha Sebert

ILED: NEW YORK COUNTY CLERK 01/14/2015 11:58 PM INDEX NO. 653118/

YSCEF DOC. NO. 102 RECEIVED NYSCEF: 01/14/


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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

LUKASZ GOTTWALD p/k/a DR. LUKE,

et al. :

Plaintiffs,

Index No 653118/2014

Justice Shirley Kornreich

Motion Sequence No.

-against-

KESHA ROSE SEBERT p/k/a KESHA,

et al.

Defendants.

X

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT KESHA SEBERT S

MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT

Dated: January 14, 2015

Respectf y submitted,

GER

By:

Tina Glandian

256 5th Avenue


213) 625-3900

[email protected]



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T BLE OF CONTENTS

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT

ARGUMENT

I.

HE COURT SHOULD DISMISS THE COMPLAINT AGAINST KESHA FOR

IMPROPER SERVICE OF PROCESS

A.

The Attempted Out-of-State Service of Kesha Was Invalid Because CPLR 313

Does Not Apply to Her

B.

Plaintiffs' Attempted Service of Process Was Improper and Ineffective Because

Plaintiffs Failed to Exercise Due Diligence Before Resorting to Nail and Mail

Service and Because Kesha Did Not Receive a Copy of the Summons by Mail....8

II. THE FORUM SELECTION CLAUSES ARE INVALID AND UNENFORCEABLE

A.

The Forum Selection Clauses Are Inapplicable to the Tort Claims in the FAC

Because the Scope of the Clauses Does Not Encompass Such Claims

0

B.

Even Assuming the Agreements Are Applicable, They Are Unenforceable

Because Both Agreements Were Permeated With Fraud

1

C.

The KMI Agreement and Prescription Publishing Agreement Should Not Be

Enforced Because Doing So Would Violate the Thirteenth Amendment's

Prohibition Against Involuntary Servitude

2

D.

The Forum Selection Clauses Are Unreasonable and Unjust Because New York Is

an Inconvenient Forum

3

III. THE COURT SHOULD DISMISS THE COMPLAINT AGAINST KESHA FOR

LACK OF PERSONAL JURISDICTION

4

A.

The Court Cannot Exercise General Jurisdiction Over Kesha Under CPLR 301

5

B.

The Court Cannot Exercise Long-Arm Jurisdiction Over Kesha Under CPLR

302

6

1

There is no basis for jurisdiction under CPLR 302(a)(1)

6

2.


7

3.


8


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C.

xercise of Jurisdiction Over Kesha Would Violate Due Process

0

IV.

THE COURT SHOULD DISMISS THE COMPLAINT AGAINST KESHA ON THE

GROUND OF FORUM NON CONVENIENS

1

V.

THE COURT SHOULD DISMISS OR IN THE ALTERNATIVE STAY THIS

ACTION ON THE GROUND THAT THERE IS ANTOHER ACTION PENDING

3

CONCLUSION

5


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T BLE OF UTHORITIES

STATE CASES

3H E nters. v. Bennett,

276 A.D.2d 965 (3d Dep t 2000)

4

Austin Instrument, Inc. v. L oral Corp.,

29 N.Y.2d 124 (1971)

3

Banco Ambrosiano v. Artoc Bank Trust,

62 N.Y.2d 65 (1984)

5,21

Bernstein v. W ysoki,

77 A.D.3d 241 (2d Dep t 2010)

1

CDR Creances S.A.S. v. Cohen,

2009 WL 5225181

0

Deutsche Bank Sec., Inc. v. Montana Bd. of Invs.,

7 N.Y.3d 65 (2006)

6

Fantis Foods, Inc. v. Standard Imp orting,

63 A.D .2d 52 (1st Dep t 1978),

rev d on other grounds,

49 N.Y.2d 317 (1980)

0

Fischbarg v. Doucet,

9 N.Y.3d 375 (2007)

6

Frummer v. Hilton Hotels Int l, Inc.,

19 N.Y.2d 533 (1967)

6

Hearst Corp. v. Goldberger,

96 Civ. 3620 (PKL),

1997 W L 97097 (S.D.N.Y. Feb. 26, 1997)

7

Islamic Republic of Iran v. Pahlavi,

62 N.Y.2d 474 (1984)

1

Kreutter v. McFadden Oil Corp.,

71 N.Y.2d 460 (1988)

6

Licci v. Lebanese Can. Bank, SAL,

20 N.Y.3d 327 (2012)

6

Marie v. Altshuler,

30 A.D.3d 271 (1st Dep t 2006)

18-19


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Matter of Nilsa B.B. v. Clyde Blackwell H.

84 A.D.2d 295 (2d Dep t 1981)

5

McGowan v. Smith

52 N.Y.2d 268 (1981)

6

Mejia-Haffner v. Killington Ltd.

119 A.D.3d 912 (2d Dep t 2014)

6

Pichardo v Zayas

122 A.D.3d 699 (2d Dept 2014)

,15

Robinson v. Oceanic Steam Nay. Co.

112 N.Y. 315 (1889)

23

Sanchez v. Major

289 A.D.2d 320 (2d Dep t 2001) 14

Serraro v. Staropoli

94 A.D.3d 10 83 (2d Dep t 2012)

8-9

Silver v. Great Am . Ins. Co.

29 N.Y.2d 356 (1972)

23

Simonson v. Int l Bank,

14 N.Y.2d 281 (1964)

16

Skandinaviska Granit Aktiebolaget v. Weiss

226 A.D. 56 (2d Dep t 1929)

15

Turay v. Beam Bros. Trucking Inc.

61 A.D.3d 964 (2d Dep t 2009)

21

Wentzel v. Allen Mach.

277 A.D.2d 446 (2d Dep t 2014)

23

FEDERAL CASES

Asahi M etal Indus. Co. v. Superior Court

480 U.S. 102 (1992)

26

Bensusan Rest. Corp. v. King

126 F.3d 25 (2d Cir. 1997)

22

Bensusan Rest. Corp. v. King

937 F. Supp. 295 (S.D.N.Y. 1996)

22,

25,

26

-iv-


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Bon Jou r Group, Ltd. v. Elan-Polo, Inc.,

96 Civ. 6705 PKL), 1997 WL 401814 S.D.N.Y., July 16, 1997)

11

Burger King Corp . v. Rudzewicz,

471 U.S. 462 1985) 26

Capitol Records L.L.0 v. Seeqpod

09 Civ. 1584, 2010 WL 481228 S.D.N.Y. Feb. 01, 2010)

22

Carnival Cruise Lines v. Shute,

499 U.S. 585 1991)

15

Cherico, Cherico Assoc. v Midollo,

67 A.D.3d 622 2009)

30

Energy B rands Inc. v. Spiritual Brands, Inc.,

571 F. Supp. 2d 458 S.D.N.Y. 2008)

23

Flood v. Kuhn,

316 F. Supp. 271, 281 S.D.N.Y. 1970)

15,

16

Franco v. D iaz,

14-CV-1909 ILG RER, 2014 W L 4494470 E.D.N.Y. Sept. 12, 2014)

16, 17

Girl Scouts of U SA. v. Steir,

102 F. App x 217 (2d Cir. 2004)

25

Kiwanuka v. Bakilana,

844 F.Supp.2d 107 D.D.C. 2012)

16

M/S Bremen v. Zap ata Off-Shore Co.,

407 U.S. 1 1972)

15, 32

New Moon Shipping Co. v. MAN B W Diesel AG,

121 F.3d 24 2d Cir. 1997)

11

United States v. Dann,

652 F.3d 1160 9th Cir. 2011)

17

United States v. Shackney,

333 F.2d 475 2d Cir. 1964)

15

Virgin Enters. Ltd. v. Virgin E yes,

LAC , 08 Civ. 8564 LAP ), 2009 WL 3241529 S.D.N.Y. Sept. 30, 2009)

24

-v-


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STATUTES

7, 8, 18,

23, 24,

19,

22,

19

20

23

25

7

CPLR 301

,

CPLR 302 a) 1)

CPLR 302 a) 2)

CPLR 302 a) 3)

CPLR 308

CPLR 308 1)

8, 9

CPLR 308 2)

8, 9

CPLR 308 3)

8

CPLR 308 4)

5,

8, 9, 10

CPLR 313

7

CPLR 3211 a) 4)

1,

6,

7, 29

CPLR 3211 a) 8)

1, 18

CPLR 327 a)

1, 27

CPLR 327 b)

27

MISCELLANEOUS

CPLR 308 cmt. 5 McK inney)

9

H.R.Rep. No. 106-939, at 101 2000) Conf. Rep.)

16

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Defendant Kesha Sebert respectfully submits this memorandum of law in support of

Defendant's Motion to Dismiss the First Amended Complaint under New York Civil Practice

Law and Rules ( CPLR ) 3211(a)(8) for improper service of process and lack of personal

jurisdiction, CPLR 327(a) based on forum

non conveniens

and CPLR 3211(a)(4) because there

is another prior action pending between the parties on substantially identical issues regarding the

same subject matter in Los Angeles, California. In any event, the issues that need to be resolved

in this case depend on factual rulings in the pending litigation in Los Angeles, California

regarding the enforceability of any purported contractual claims by Gottwald and his entities.

PRELIMIN RY ST TEMENT

This action is a retaliatory action by Plaintiffs who are gaming the court system to harass

and control the Defendants as they have for the last decade. Plaintiffs have taken inconsistent

positions on the same issues before different courts. After having a number of these

inconsistencies exposed in the motion to dismiss the initial complaint, Plaintiffs have now

attempted to mask their gamesmanship by amending the complaint.

On October 14, 2014, world-renowned platinum-selling artist (and California resident)

Kesha Sebert (hereafter Kesha ) filed a lawsuit against her producer (also a California resident)

Lukasz Gottwald (hereafter Gottwald ) and several of his companies including Kasz Money,

Inc. (hereafter KMI ) and Prescription Songs, LLC (hereafter Prescription Songs ) in Los

Angeles Superior Court alleging various causes of action including sexual assault and battery,

harassment, violation of California's unfair business laws, and the intentional and negligent

infliction of emotional distress (hereafter the California action ).

See

Affidavit of Tina

Glandian (hereafter Glandian Aff. ), Exh. A.

Several hours after Kesha filed the California action, Gottwald and KMI, the company he

controls, filed a complaint in this Court against Kesha, her mother Pebe Sebert (hereafter


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Pebe ), and her managers Jack Rovner (hereafter Rovner ) and Vector Management LLC

(hereafter Vector ) alleging defamation (against Kesha and Pebe only), breach of contract

(against Kesha only), and tortious interference with contractual relations (against Pebe, Vector,

and Rovner only) (hereafter the New York action ).

ee

Complaint (hereafter Cmpl. ).

Recognizing that this Court lacks personal jurisdiction over Pebe, on October 28, 2014,

Plaintiffs filed a parallel suit against her in the United States District Court for the District of

Tennesseea state she actually has minimum contacts withalleging the same two causes of

action as those asserted against her in this action [defamation and tortious interference with

contractual relations] (hereafter the Tennessee action ).

Glandian Aff., Exh. C. On December

2, 2014, Pebe filed her answer to the complaint in the Tennessee action as well as counterclaims

against Gottwald and KMI for intentional infliction of emotional distress (against Gottwald),

negligent infliction of emotional distress (against Gottwald), intentional misrepresentation

(against Gottwald), negligent misrepresentation (against Gottwald), fraudulent inducement

(against Gottwald and KMI), unjust enrichment (against Gottwald and KMI), and false

imprisonment (against Gottwald). Glandian Aff., Exh. F. But despite Pebe's interest in pursuing

her legitimate counterclaims against Gottwald and KMI without delay in Tennesseewhere

ll

p rties h ve greed jurisdiction is properon

December 4, 2014, counsel for Plaintiffs emailed

Pebe's counsel, stating: In the interest of judicial efficiency, we believe that an application

Gottwald has hired a public relations firm which has made numerous disparaging remarks

about Kesha and Pebe timed with Gottwald's court filings. Media outlets reported that the

Tennessee action is a precautionary measure should Pebe Sebert claim previous lawsuit does

not apply to her due to jurisdiction. Glandian Aff., Exh. D. And Plaintiffs' counsel has

essentially admitted that her clients are merely forum-shopping. As one article reports, This

suit would go to court in Tennessee, where Sebert does business, and has been filed as a

precautionary measure in the event that she is able to have the New York suit dismissed by

claiming she does not live there. If Sebert does not make that claim, and the New York suit goes

forward, Gottwald's attorney would withdraw the new one. Glandian Aff., Exh. E.

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should be made to the Court, requesting that all deadlines in the Tennessee action (including

under the Federal Rules, the Local Rules, and the Court's orders) be adjourned until 21 days

following a decision on Pebe Sebert's motion to dismiss the New York action. Glandian Aff.,

Exh. G. Prior to the filing of the California, New York, and Tennessee actions described above,

there was also an unrelated case pending against Gottwald and others in the United States

District Court for the Eastern District of Missouri which had been filed by various other parties

(hereafter the Missouri action ).

In light of the four pending actions involving Gottwald, it has become apparent that

Plaintiffs are engaging in forum shopping and that the instant lawsuit was filed to game this

litigation. For instance, Gottwald, who is represented by the same counsel in all matters, has

taken inconsistent positions in the four pending actions. In the original New York complaint,

Plaintiffs alleged that Pebe was a resident of California. Cmpl. at 8. However, in the

Tennessee action filed by Gottwald only two weeks later, Plaintiffs alleged that Pebe is a resident

of Tennessee. Glandian Aff., Exh. C at 6. After this inconsistency was raised in Pebe's Motion

to Dismiss Plaintiffs' Complaint in the New York action, Plaintiffs amended this allegation and

now allege in the FAC that Pebe is a Tennessee resident. FAC at l 13.

Similarly, in the original complaint filed in this Court, Plaintiffs alleged that Gottwald

was a resident of New York. Cmpl. at 5. However, in a Declaration Gottwald filed in support

of his motion to dismiss the Missouri action for lack of personal jurisdiction on September 30,

2014, two weeks before this action was filed, Gottwald declared under penalty of perjury that he

was a resident of California. Glandian Aff., Exh. H at 4. Then, on October 23, 2014, just nine

days

fter filing the complaint in which Gottwald alleged that he was a resident of New York, he

filed another declaration in support of his renewed motion to dismiss for lack of personal

jurisdiction in which he again declared under penalty of perjury that he was a resident of

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California. Glandian Aff., Exh. J at 4.

On November 10, 2014, plaintiffs in the Missouri action brought these inconsistent

filings to the attention of the district court in a motion for rule to show cause why Defendant

Lukasz Gottwald should not be held in contempt. Glandian Aff., Exh. K. On November 13,

2014, counsel for Gottwald filed a Declaration in the Missouri action in opposition to Plaintiffs'

Contempt Application and in support of Gottwald's Cross-Motion to Sanction Plaintiffs'

Counsel for Vexatious Litigation Conduct, in which he stated that the allegation about

Gottwald's New York residency in the New York action was inadvertently made. Glandian

Exhs. M & N at 3. He also declared under penalty of perjury that his firm [wags in the

process of preparing an Amended Complaint to be filed in the New York Action that will set

forth Gottwald's current state of residence (i.e., California). Glandian Aff., Exh. N at 5. On

November 21, 2014, the district court denied both Plaintiffs' contempt application as well as

Gottwald's motion for sanctions. Glandian Aff., Exh. 0.

On November 14, 2014, counsel for Gottwald informed counsel for Kesha in this matter

that Gottwald is, in fact, a California resident, that the allegation in the Complaint that he is a

New York resident was inadvertently made, and that the Amended Complaint would reflect

Gottwald's correct residence. Glandian Aff., Exh. P. However, when counsel for Kesha asked

that the Amended Complaint be filed immediately so as not to waste the Court's time with

successive motions, counsel refused. Glandian Aff., Exhs. Q & R. Despite knowledge that the

operative complaint contained a material misrepresentation and that counsel for Defendants

intended to file a motion to dismiss on jurisdictional grounds, counsel noted that it was Plaintiffs'

right to defer amending their complaint until after Defendants filed their responsive pleading.

Glandian Aff., Exh. R. Plaintiffs wanted to wait to amend their complaint until after they had

previewed Defendants' arguments.

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activities within the State.

Pichardo v. Zayas

122 A.D.3d 699, 703 (2d Dept 2014). And in any

event, Kesha does not have minimum contacts with the State of New York, and certainly not the

continuous or systematic contacts necessary for general jurisdiction.

Nor can Plaintiffs establish that specific personal jurisdiction exists over Kesha under

New York's long-arm statute since there is, in fact, no suggestion that Kesha has a presence of

any kind in New York other than a conclusory allegation that she does business in New York.

FAC at 12. As Plaintiffs well know, vague and conclusory allegations about a songwriter's

nationwide distribution of music is wholly insufficient to establish personal jurisdiction over a

defendant. In fact, Gottwald advanced this very same argument himself in his motion to dismiss

the Missouri action for lack of personal jurisdiction. Glandian Aff., Exh. I.

Even if the Court found it had personal jurisdiction over Kesha, it is in the interest of

substantial justice that the action against Kesha be heard in another forum, namely California,

which is where the parties reside and where the majority of witnesses, pertinent information, and

evidence is located. Therefore, dismissal of this action is also warranted on the ground of forum

non conveniens.

Since both this action and the California action arise out of the same subject matter, the

Court may also dismiss this action pursuant to CPLR 3211(a)(4), which gives the Court broad

discretion to dispose of an action when another action is pending between the same parties

regarding the same subject matter. In the event the Court determines that dismissal of this action

pursuant to CPLR 3211(a)(4) would be premature, the Court should stay this action pending the

outcome of the California action, which was filed first, and in which all parties have been served.

Glandian Aff., Exhs. A, V, W & X. Since the issues in this action will be determined by rulings

in the California action, a stay would prevent the waste of judicial resources and the risk of

inconsistent verdicts.

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ARGUMENT

I. THE COURT SHOULD DISMISS THE COMPLAINT AGAINST KESHA

FOR IMPROPER SERVICE OF PROCESS.

A. he Attempted Out of State Service of Kesha Was Invalid Because CPLR 313 Does

Not Apply to Her.

CPLR 308 provides that personal service on a natural person shall be made in one of the

following four ways: (1) personal delivery within New York; (2) substituted service by

delivering process within New York to a person of suitable age and discretion who is willing to

accept the papers . . .; (3) serving a designated agent within New York State; or (4):

where service under paragraphs one and two cannot be made with due

diligence

by affixing the summons to the door of either the actual place of

business, dwelling place or usual place of abode within the state of the person to

be served and by either mailing the summons to such person at his or her last

known residence or by mailing the summons by first class mail to the person to be

served at his or her actual place of business in an envelope bearing the legend

`personal and confidential' and not indicating on the outside thereof...such

affixing and mailing to be effected within twenty days of each other; proof of

such service shall be filed with the clerk of the court designated in the summons

within twenty days of either such affixing or mailing, whichever is effected later.

CPLR 308(1)-(4) (emphasis added). Although CPLR 308 addresses personal service within New

York, CPLR 313, which addresses service

outside the state, permits service using the same

methods allowed within New York so long as the person served is domiciled in New York or is

subject to jurisdiction under CPLR 301 or 302. CPLR 313.

Here, Kesha is not domiciled in New York. FAC at 1 12; Affidavit of Kesha Rose

Sebert (hereafter Kesha Aff. ) at 1 6. And, as discussed, infr in Part III, Kesha is not subject to

jurisdiction under CPLR 301 or 302. Therefore, the attempted out-of-state service of Kesha

pursuant to CPLR 313 was invalid.

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B.

laintiffs' Attempted Service of Process Was Improper and Ineffective Because

Plaintiffs Failed to Exercise Due Diligence Before Resorting to Nail and Mail

Service and Because Kesha Did Not Receive a Copy of the Summons by Mail.

Even if Kesha was domiciled in New York or subject to jurisdiction under CPLR 301 or

302, Plaintiffs' purported service of her would still fail because it did not comply with New York

law governing service of process. Plaintiffs do not claim that Kesha was personally served under

CPLR 308(1), that she was served by substituted service under CPLR 308(2), or that she has a

designated agent who was served pursuant to CPLR 308(3). Rather, Plaintiffs are relying on

their attempted nail and mail service of Kesha.

According to their Affidavit of Service, Plaintiffs attempted to serve Kesha at her Venice,

California residence on October 15, 2014 at 4:50 p.m., on October 16, 2014 at 11:13 a.m., on

October 17, 2014 at 8:39 p.m., on October 18, 2014 at 5:52 a.m., and on October 19, 2014 at

7:32 a.m. Glandian Aff., Exh. B. The Affidavit of Service further provides that on October 20,

2014, a copy of the Summons, Complaint and Notice of Commencement of Action Subject to

Mandatory Electronic Filing was affixed to the front door of Kesha' s Venice, California

residence, and copies of the documents were mailed to the same California residence.

Id.

Plaintiffs' attempts to serve Kesha were improper and ineffective because Plaintiffs failed

to exercise the required due diligence before resorting to nail and mail service under CPLR

308(4). In order to properly rely on nail and mail service as authorized by CPLR 308(4),

Plaintiffs must first exercise due diligence in attempting to serve the defendant through other

means. This due diligence requirement is strictly construed.


94 A.D.3d

1083,1084 (2d Dep't 2012).

Here, Plaintiffs claim to have made repeated attempts to serve Kesha at her Venice,

California residence. However, the Affidavit of Service does not state that Plaintiffs made any

attempts to serve her at any other location or that Plaintiffs made any effort whatsoever to

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ascertain her whereabouts. As the Supplemental Practice Commentaries explain,

the due diligence component of CPLR 308(4) will not be satisfied in the case of

an affixing at a defendant's dwelling place, regardless of how many attempts are

made to serve a person of suitable age and discretion at that location, unless the

plaintiff also made genuine inquiry as to the defendant's whereabouts and place

of employment.

CPLR 308 cmt. 5 (McKinney).

In


94 A.D.3d 1083 (2d Dep't 2012), the process server attempted to

serve the defendant at the defendant's home on four different occasions. Id. at 1085. The court

stated that [fl or the purpose of satisfying the 'due diligence' requirement of CPLR 308(4), it

must be shown that the process server made genuine inquiries about the defendant's whereabouts

and place of employment. Id The plaintiff's failure to inquire about the defendant's work

schedule and place of business was deemed a failure to establish due diligence in attempting to

serve the defendant under CPLR 308(1) or (2); therefore, service was improper. Id.

Like in

Serraro

Plaintiffs have failed to exercise due diligence in attempting to serve

Kesha. Plaintiffs' process server attempted to serve Kesha six times on sequential days at her

residence in Venice, California but nowhere else. Glandian Aff., Exh. B. Because Plaintiffs

made no effort whatsoever to ascertain her whereabouts and only attempted to serve her at a

single location, their attempted service was improper and ineffective.Furthermore, Kesha never

received a copy of the summons by mail as required by CPLR 308(4). Kesha Aff.,at 7.

Because Plaintiffs failed to exercise due diligence before resorting to nail and mail

service and because Kesha did not receive a copy of the summons by mail, Plaintiffs' attempted

service of process was improper and ineffective.

II. THE FORUM SELECTION CLAUSES ARE INVALID AND UNENFORCEABLE.

Plaintiffs rely on forum selection clauses contained in the purported KMI Agreement

and Prescription Publishing Agreement as the sole basis for a New York court to assert

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personal jurisdiction over Kesha. ut these forum selection clauses are invalid and

unenforceable, and entirely irrelevant to this action. Additionally, as explained below, the forum

selection clauses are inapplicable to the tort claims in the FAC because the scope of the clauses

do not and obviously cannot encompass such claims.

A

he Forum Selection Clauses Are Inapplicable to the Tort Claims in the FAC

Because the Scope of the Clauses Does Not Encompass Such Claims

The scope of a forum selection clause is a contractual question that requires the courts to

interpret the clause and, where ambiguous, to consider the intent of the parties. New Moon

Shipping Co. v. MAN B W Diesel AG,

121 F.3d 24, 33 (2d Cir. 1997). Where a clause applies

more narrowly to litigation between the parties concerning the alleged breach of the agreement

or the meaning, effect, application and/or interpretation of its terms, courts have held found that

the clause does not encompass related tort claims. See Bon Jour Grp., Ltd. v. Elan-Polo, Inc., 96

Civ. 6705 (PKL), 1997 WL 401814 (S.D.N.Y., July 16, 1997) (holding that the scope of the

forum selection clause did not cover tort-based claims and therefore defendant was not required

to litigate non-contractual claims in New York).

Fantis Foods, Inc. v. Standard Importing, 63 A.D.2d 52, 58 (1st Dep't 1978),

rev'd on

other grounds, 49 N.Y.2d 317 (1980), provides the same reasoning. There, the court refused to

enforce a forum selection clause because the claims constitutes an undisputed act not arising out

of the contract.

Id

at 58; see also CDR Creances S.A.S. v. Cohen, 2009 WL 5225181 at *18

(refusing to enforce a forum selection clause where claims were based in tort, not contract).

Here, like in Bon Jour Group. and Fantis Foods, supra, the scope of the forum selection

clause is not broad enough to cover Plaintiffs' tort claims for defamation and tortious interference

of contractual relations. By its explicit terms, the forum selection clause in the KMI Agreement

is limited to controversies regarding THE VALIDITY, INTERPRETATION AND LEGAL

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EFFECT OF THIS AGREEMENT. Glandian Aff., Exh. Y at 17. Similarly, the forum selection

clause in the Prescription Publishing Agreement is limited to controversies regarding the

validity, interpretation and legal effect of this Agreement. Glandian Aff., Exh. Z at 20.

Furthermore, the defamation claim against Kesha does not depend on the existence of a

contractual relationship between the parties nor does resolution of that claim require

interpretation of the contracts at issue.

B. ven Assuming the Agreements Are Applicable They Are Unenforceable Because

Both Agreements Were Permeated With Fraud.

A contractual forum selection clause is unenforceable where its application would be

unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or

it is shown that a trial in the selected forum would be so gravely difficult that the challenging

party would, for all practical purposes, be deprived of its day in court. Bernstein v. Wysoki

77

A.D.3d 241, 248-49 (2d Dep't 2010) (citations omitted).

As alleged in the FAC, in or around 2005, Gottwald pursued Kesha, who was an

unknown and unsigned musical artist living in Nashville, Tennessee, after he heard her demo

tape. FAC at 91 23. Gottwald is a Grammy-nominated songwriter and producer of smash hit

musical recordings by artists including Katy Perry, Britney Spears, and Kelly Clarkson, among

others, FAC atilt 22, [he] has written the most Number One songs of any songwriter ever, id.

and [h]e was named by Billboard as one of the top ten producers of the decade in 2009 and the

Producer and Songwriter of the Year for 2010, and was the 2010 ASCAP Songwriter of the

Year.

Id By showering her with promises of fame and fortune, Gottwald eventually convinced

eighteen year-old Kesha to drop out of high school, leave her life behind, move to Los Angeles,

and enter into the KMI Agreement in order to pursue what Gottwald represented would be a

glamorous music career under his auspices. Glandian Aff., Exh. A at 1 17;

see also

FAC at 123.


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But as alleged in the California action, [u]pon arriving in Los Angeles, [Kesha] soon realized

that Dr. Luke was not the mentor he represented himself to be and the opportunities were not

what he had promised they would be. Glandian Aff., Exh. A at 18. From the outset of their

working relationship, Gottwald engaged in despicable conduct towards Kesha which included

physical, sexual, and emotional abuse.

Then, several years later, at a time when Kesha had become deeply frustrated by her

stalled career, as Plaintiffs allege, the Prescription Publishing Agreement was executed. FAC at

29. Not only was Kesha being abused and threatened by Gottwald at this time, but she also

lacked the ability to meaningfully negotiate this agreement because [n]o record company would

or could sign her to a deal because she was already signed to KMI. FAC at 29.

See Carnival

Cruise Lines v. Shute 499 U.S. 585, 593 (1991) (noting that the inability of one party to

negotiate a contract's terms is relevant to finding a forum selection clause unenforceable via

bargaining power disparity);

M/S Bremen v. Zapata Off-Shore Co.

407 U.S. 1, 12-14 (1972)

(suggesting that a forum selection clause affected by the overweening bargaining power of one

party is unenforceable).

Because both the KMI Agreement and the Prescription Publishing Agreement were

induced by Gottwald's misrepresentations and permeated with fraud, the forum selection clauses

contained therein are unenforceable.

C.

he KMI Agreement and Prescription Publishing Agreement Should Not Be

Enforced Because Doing So Would Violate the Thirteenth Amendment s Prohibition

Against Involuntary Servitude.

A court may refuse to enforce labor contracts which are tainted from the outset by force

or fraud. Such contracts impose involuntary servitude in violation of the Thirteenth Amendment

in perhaps its most fundamental sense; they mandate the performance of service not agreed upon

by voluntary contractual consent. Involuntary servitude has been defined as 'action by the

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master causing the servant to have, or to believe he has, no way to avoid continued service or

confinement . . .'

Flood v. Kuhn

316 F. Supp. 271, 281 (S.D.N.Y. 1970) (citing United States

v. Shackney 333 F.2d 475, 486 (2d Cir. 1964)). Courts may void such contracts in their entirety

under the doctrines of duress, misrepresentation, or unconscionability.

See e.g. Austin

Instrument Inc. v. Loral Corp. 29 N.Y.2d 124, 130 (1971) ( A contract is voidable on the

ground of duress when it is established that the party making the claim was forced to agree to it

by means of a wrongful threat. ). A showing of compulsion is a prerequisite to proof of

involuntary servitude. Flood

316 F. Supp. at 281.

Here, the Court should refuse to enforce the KMI Agreement and Prescription Publishing

Agreement, and the forum selection clauses they contain, because Kesha's performance under

those contracts was a product of compulsion and coercion by Gottwald. Thus, they mandated the

performance of services by Kesha not agreed upon by voluntary contractual consent.

Furthermore, as alleged in the California action, from the beginning of their working

relationship, Gottwald raped Kesha, he physically and emotionally abused her, and he made

threats of continued physical and emotional harm if she were to try to leave or disobey him, or if

she reported the misconduct to anyone.

See Glandian Aff., Exh. A. In one instance, Gottwald's

verbal and physical assault on Kesha was so terrifying that Kesha was forced to flee from his

house to seek refuge. Id

at 35. In another instance, as alleged by Pebe in the Tennessee action,

Gottwald imprisoned Pebe and Kesha in his recording studio and verbally and physically abused

them for hours. Glandian Aff., Exh. T at i 38.

D

he Forum Selection Clauses Are Unreasonable and Unjust Because New York Is

an Inconvenient Forum

Enforcement of the forum selection clauses in this case would be unreasonable and

unjust. As explained above, New York is a seriously inconvenient forum for the present

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litigation because the events at issue have no nexus whatsoever with this State and similar issues

are currently being litigated in California. The primary witnesses and evidence for the California

action, Tennessee action, and this case are all located in California. And finally, Plaintiffs have

bundled their breach of contract claims in order to inconvenience this litigation.

Despite the irrelevancy of the KMI Agreement and Prescription Publishing Agreement

forum selection clauses, a forum selection clause is unenforceable where its application would be

unreasonable and unjust, particularly where the chosen forum is seriously inconvenient for the

trial of the action.

3H Enters. v. Bennett

276 A.D.2d 965, 966 (3d Dep't 2000) (quoting

M/S

Bremen v. Zapata OffShore Co. 407 U.S. 1, 16 (1972)) (internal quotation marks omitted).

Here, New York is an inconvenient forum for the present action, and the forum selection

clause is therefore unreasonable and unenforceable.

The pending action in California, filed prior to the present case, involves similar parties

and issues, and will facilitate jurisdiction there. Even the KMI Agreement itself, which falsely

purports to be entered into in New York, was signed and executed in California. Kesha Aff. , at 1

12. Gottwald's attempt to enforce the forum selection clause unreasonably burdens the Courts of

New York with a case that should beand presently isbeing litigated in California. Because

this action has no nexus with New York, and the Court would not otherwise have jurisdiction

over Kesha, enforcement of the forum selection clauses would be unreasonable and unjust.

III THE COURT SHOULD DISMISS THE COMPLAINT AGAINST KESHA

FOR LACK OF PERSONAL JURISDICTION

Plaintiffs bear the burden of demonstrating the existence of personal jurisdiction.

Sanchez v. Major

289 A.D.2d 320, 321 (2d Dep't 2001). CPLR 3211(a) provides that a motion

to dismiss a cause of action may be asserted on the ground that the court has not jurisdiction of

the person of the defendant. CPLR 3211(a)(8).

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Here, absent a valid and enforceable forum selection clause, Plaintiffs cannot establish

that personal jurisdiction exists over Kesha. As explained below, Kesha's contacts with the State

of New York satisfy neither the test for general jurisdiction under CPLR 301 nor the test for

long-arm jurisdiction under CPLR 302.

A

he Court Cannot Exercise General Jurisdiction Over Kesha Under CPLR 301

CPLR 301, which became effective along with 302 in 1963, provides that [a] court may

exercise such jurisdiction over persons, property, or status as might have been exercised

heretofore. CPLR 301. CPLR 301 does not grant to the courts of New York all jurisdiction

over persons which they might exercise in a manner consistent with due process.

Matter of

Nilsa B.B. v. Clyde Blackwell H.,

84 A.D.2d 295, 301 (2d Dep't 1981),

superseded by statute on

other grounds,

N.Y. Senate Bill NO. S 8710 (1982). Rather, CPLR 301 preserves all

previously existing jurisdictional bases.

Banco Ambrosiano v. Artoc Bank Trust,

62 N.Y.2d

65, 71 (1984).

As New York courts have previously noted, the bases for jurisdiction recognized by our

common law before the date of the enactment of the CPLR [were] physical presence within the

State, domicile or consent.

Matter of Nilsa,

84 A.D.2d at 303 (citations omitted). With respect

to the last-mentioned basis . . . the mere transaction of business in a State by a natural person

`does not imply consent to be bound by the process of [the] courts' of that State.

Id

(quoting

Skandinaviska Granit Aktiebolaget v. Weiss,

226 A.D. 56, 59 (2d Dep't 1929)).

On November 12, 2014, in

Pichardo v. Zayas,

122 A.D.3d 699, 703 (2d Dep't 2014), the

Appellate Division of the Second Judicial Department held that unlike corporations, the court

cannot exercise general jurisdiction over an individual pursuant to CPLR 301 based upon an

individual's cumulative activities within the State. Because Kesha is neither a domiciliary of the

State nor was she served with process in the State, the Court cannot exercise general jurisdiction

13


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over her pursuant to CPLR 301, even if Plaintiffs had alleged cumulative individual business

activities within the State (which Plaintiffs have not done).

B.

he Court Cannot Exercise Long-Arm Jurisdiction Over Kesha Under CPLR 302.

1.

here is no basis for jurisdiction under CPLR 302 a) 1).

Nor does the Court have long-arm jurisdiction over Kesha pursuant to CPLR 302. CPLR

302(a)(1) authorizes the court to exercise jurisdiction over nondomiciliaries for tort and contract

claims arising from a defendant's transaction of business in this State.

Kreutter v. McFadden

Oil Corp., 71 N.Y.2d 460, 467 (1988); see Mejia-Haffner v. Killington, Ltd., 119 A.D.3d 912,

913-14 (2d Dep't 2014). In order to determine whether personal jurisdiction exists under CPLR

302(a)(1), a court must determine (1) whether the defendant transacted business in New York

and, if so, (2) whether the cause of action asserted arose from that transaction. See Licci v.

Lebanese Can. Bank, SAL,

20 N.Y.3d 327, 334 (2012);

Fischbarg v. Doucet, 9 N.Y.3d 375, 380

(2007); Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71 (2006).

The Court of Appeals has interpreted the second prong of the jurisdictional inquiry to

require that, in light of all the circumstances, there must be an articulable nexus,

McGowan v.

Smith, 52 N.Y.2d 268, 272 (1981), or substantial relationship,

Kreutter,

71 N.Y.2d at 467,

between a defendant's in-state activity and the claim asserted, see Licci,

20 N.Y.3d at 339.

Although causation is not required, the Court of Appeals has stated that at a minimum [there

must be] a relatedness between the transaction and the legal claim such that the latter is not

completely unmoored from the former.

Id [W]here at least one element arises from the New

York contacts, the relationship between the business transaction and the claim asserted supports

2

Indeed, nothing in the FAC comes even close to demonstrating that Kesha was

engaged in such a continuous and systematic course of 'doing business' [in New York] as to

warrant a finding of [her] 'presence' in this jurisdiction.

Frummer v. Hilton Hotels Int l, Inc.,

19 N.Y.2d 533, 536 (1967) (quoting Simonson v. Int l Bank, 14 N.Y.2d 281, 285 (1964)).

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specific jurisdiction under the statute. Id.

at 341. Conversely, a court may not exercise personal

jurisdiction [w]here this necessary relatedness is lacking because the claim is 'too attenuated'

from the transaction, or 'merely coincidental' with it.

Id

at 340 (citations omitted).

Here, the allegations that give rise to Plaintiffs' causes of action do not appear to

have any relationship with New York and do not warrant a New York court's exercise of

personal jurisdiction over Kesha pursuant to CPLR 302(a)(1). After failing to allege that Kesha

had any contacts with New York in their initial complaint, Plaintiffs now solely allege that Kesha

is doing business in New York. FAC at 1 12. Plaintiffs do not allege their causes of action

against Kesha relate to this business in New York. In fact, Plaintiffs allege no facts and no

nexus between their defamation and breach of contract claims to Kesha's alleged business in

New York.

Nor do Plaintiffs' causes of action allege any conduct arising out of Kesha's business

in New York. Plaintiffs' original Complaint alleged Kesha was engaged in the business of

creating music for distribution nationwide and in New York. Cmpl., at 1 7. These fatally vague

allegations are insufficient to confer personal jurisdiction and are not consistent with traditional

personal jurisdiction case law nor acceptable to the Court as a matter of policy. Hearst Corp. v.

Goldberger

96 Civ. 3620 (PKL), 1997 WL 97097, at *1 (S.D.N.Y. Feb. 26, 1997). Also, as

explained above, Gottwald's counsel in the Missouri action argued that the mere nationwide

distribution of music does not support the exercise of personal jurisdiction over a defendant.

2.


This Court does not have personal jurisdiction over Kesha under CPLR 302(a)(2). That

statute states that a court may exercise personal jurisdiction over a non-domiciliary when that

party commits a tortious act within the state and the cause of action arises from that tortious

act. CPLR 302(a)(2); Hearst Corp. v. Goldberger

96 Civ. 3620 (PKL), 1997 WL 97097, at *13

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(S.D.N.Y. Feb. 26, 1997) (citations omitted)). In order to commit a tort within the state of New

York under CPLR 302(a)(2), the defendant or its agent must be

physically present within the

state when the tort occurs.

See Bensusan Rest. Corp. v. King 126 F.3d 25, 28-29 (2d Cir. 1997).

For long-arm purposes, the situs of the injury . . . is where the event giving rise to the injury

occurred, not where the resultant damages occurred.

Marie v. Altshuler

30 A.D.3d 271, 272

(1st Dep't 2006).

CPLR 302(a)(2) contains an express exception to extending jurisdiction in tortious

conduct cases where the tort in question is defamation. See

CPLR 302(a)(2) (providing for

personal jurisdiction over a non-domiciliary who commits a tortious act within the state,

except

as to a cause of action for defamation of character arising from the act )

(emphasis added).

Thus, Plaintiffs are explicitly barred from establishing personal jurisdiction through CPLR

302(a)(2) for the defamation claim against Kesha.

As for the breach of contract claim, Plaintiffs have not alleged a single act or fact that

was committed by Kesha while she was physically present in New York which gave rise to the

alleged injury. The absence of such an allegation is sufficient to defeat jurisdiction under CPLR

302(a)(2).

See Capitol Records L.L.0 v. Seeqpod

09 Civ. 1584, 2010 WL 481228 at *5

(S.D.N.Y. Feb. 01, 2010) (jurisdiction under CPLR 302(a)(2) is proper only when the defendant

was physically present in the state when the act was committed).

3.


Nor can Plaintiff establish that there is personal jurisdiction over Kesha under CPLR

302(a)(3). CPLR 302(a)(3) provides that the court may exercise jurisdiction where a defendant

commits a tortious act without the state causing injury to person or property within the state,

provided that he or she regularly does or solicits business, or engages in [a] persistent course of

conduct, or derives substantial revenue from goods ... or services rendered, in the state or


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expects or should reasonably expect the act to have consequences in the state and derives

substantial revenue from interstate or international commerce. CPLR 302(a)(3). The situs of

the injury, for long-arm purposes under CPLR 302(a)(3), is where the event giving rise to the

injury occurred.

Marie

30 A.D.3d at 272-73. Furthermore, an out-of-state act must be the

proximate cause of the injury in New York,

i.e.

the act must be so close to the injury that

reasonable people would regard it as a cause of the injury.

Energy Brands Inc. v. Spiritual

Brands Inc. 571 F. Supp. 2d 458, 467 (S.D.N.Y. 2008) (citations omitted).

Like CPLR 302(a)(2), CPLR 302(a)(3) also specifically excludes use of this rule to

establish personal jurisdiction for a defamation claim.

See

CPLR 302(a)(3) (providing for

personal jurisdiction over a non-domiciliary who commits a tortious act without the state

causing injury to person or property within the state,

except as to a cause of action for

defamation of character arising from the act ). Thus, Plaintiffs are barred from establishing

personal jurisdiction through CPLR 302(a)(3) for the defamation claim against Kesha.

As for the breach of contract claims, Plaintiffs have failed to allege any facts to show that

the alleged breach of contract by Kesha of either the KMI Agreement or the Prescription

Publishing Agreement caused injury to Plaintiffs within New York. The FAC acknowledges that

Gottwald is a California resident and that Prescription Songs is a California limited liability

company. FAC at IN 9 & 11. And, although the FAC alleges that KMI is incorporated in New

York, Defendants are informed and believe that KMI has its principal place of business in Los

Angeles, California. Glandian Aff., Exh. A at

J [

8-11. Thus, it would appear that any injury to

Plaintiffs occurred in California, not New York. This deficiency alone defeats jurisdiction under

CPLR 302(a)(3). See Virgin Enters. Ltd. v. Virgin Eyes

LAC, 08 Civ. 8564 (LAP), 2009 WL

3241529 at *5 (S.D.N.Y. Sept. 30, 2009) (because each element of CPLR 302(a)(3) is

essential, the absence of one is dispositive) (citations omitted).

V


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Plaintiffs have also failed to allege sufficient facts demonstrating that Kesha regularly

does or solicits business in New York, or that she engages in a persistent course of conduct or

derives substantial revenue from goods or services rendered in New York. Aside from the

general conclusory allegation that Kesha is a singer-songwriter doing business in New York,

FAC at 12

there are no allegations in the FAC that Kesha purposefully directed any

transactions in New York.

Finally, Plaintiffs have failed to allege any facts to show that Kesha both expected or

should reasonably have expected her alleged breach of contract to have consequences in New

Yorkespecially since Plaintiffs are all based in California. Therefore, Plaintiffs have failed to

establish that the Court has personal jurisdiction over Kesha under CPLR 302(a)(3).

C xercise of Jurisdiction Over Kesha Would Violate Due Process

Even if the alleged conduct satisfied New York's statutory jurisdiction requirements, the

exercise of jurisdiction here would run afoul of the Due Process Clause of the Fourteenth

Amendment, which requires 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.

Burger King Corp. v. Rudzewicz

471 U.S. 462, 475 (1985) (citation

omitted).

Courts have held that placing a product into the stream of commerce, may be felt

nationwideor even worldwidebut, without more, it is not an act purposefully directed toward

the forum state.

Bensusan Rest. Corp. 937 F.Supp. at 301 (citing

Asahi Metal Indus. Co. v.

3

In the original complaint filed in this matter on October 14, 2014, Plaintiffs argued that

the Court could exercise personal jurisdiction over Defendants based on their nationwide

distribution of music. See

Cmpl. at 'J[ 7-8. But presumably because in her Motion to Dismiss

the Complaint, Pebe noted that this was yet another inconsistent position taken by Plaintiffs,

see

Defendant Pebe Sebert's Motion to Dismiss Plaintiffs' Complaint (hereafter MTD ) at 2-3.

Plaintiffs have now removed that assertion as a basis of personal jurisdiction over Kesha.

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Superior Court, 480 U.S. 102, 112 (1992)). In Bensusan, the court held that absent any presence

in New York, the defendant could not be subject to jurisdiction consistent with due process based

merely on a website that can be accessed worldwide.

Id.

Here, as explained above, there is no direct connection between Kesha, her alleged

breach of either the KMI Agreement and the Prescription Publishing Agreement, and New York.

IV THE COURT SHOULD DISMISS THE COMPLAINT AGAINST KESHA

ON THE GROUND OF FORUM NON CONVENIENS.

CPLR 327(a) permits a court to stay or dismiss an action if in the interest of substantial

justice the action should be heard in another forum under the doctrine of forum

non

conveniens.

CPLR 327(a).

This is true even if the court were to be persuaded that personal

jurisdiction exists.

See id. ( The domicile or residence in this state of any party to the action

shall not preclude the court from staying or dismissing the action. ). It is the defendant's burden

to demonstrate relevant private or public interest factors which militate against accepting the

litigation.

Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479 (1984).

In assessing the inconvenience of the forum, the court must weigh [] the residency of the

parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses,

the availability of an alternative forum, the situs of the underlying actionable events, the location

of evidence, and the burden that retention of the case will impose upon the New York courts.

Turay v. Beam Bros. Trucking, Inc.,

61 A.D.3d 964, 966 (2d Dep't 2009). No one factor is

dispositive.

Id.

Also of importance, inter alia, is the extent to which the defendant will face

particular difficulties in litigating the claim in this State. See Banco Ambrosiano v. Artoc Bank

Trust,

62 N.Y.2d 65, 73 (1984). As explained below, the private and public interest factors

4

CPLR 327(b) prevents dismissal on the ground of inconvenient forum where the action

arises out of a contract which has a forum selection clause that specifies that the law of New

York will govern the dispute.

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weigh heavily against litigating this matter in the State of New York.

The FAC alleges that both Gottwald and Kesha are California residents. See

FAC IN at 9

12. Prescription Songs is also a California limited liability company. FAC at 91 11. And,

although the FAC alleges that Plaintiff KMI is a New York corporation, FAC at 91 10,

Defendants are informed and believe that KMI has its principal place of business in Los Angeles,

California. Glandian Aff., Exh. A at 91 8. Moreover, Gottwald, who is the owner of KMI and

Prescription Songs, FAC at 911, has argued that California is a convenient forum for him. In his

Motion to Dismiss the Missouri action, Gottwald asked the Court to transfer the case to the

Central District of California, as an alternative to transferring the case to the Southern District of

New York, noting that such a transfer would be appropriate. Glandian Aff., Exh. I at 2.

Litigating this matter in the State of New York would also create a serious financial

hardship for at least two of the parties Kesha and Pebe), neither of whom live in New York. In

her sworn affidavit, Kesha attests to the fact that litigating this matter in New York would

specifically create a significant burden for her. Kesha Aff., at 9117. And litigating this matter in

New York would undoubtedly create a significant burden for non-parties as well, as the majority

of witnesses and evidence is located in California.

The third factorthe availability of an alternative forumalso weighs in favor of

dismissing this action for forum

non conveniens.

As noted above, there is a California action

pending between Kesha and all three plaintiffs in this action [Gottwald, KMI, and Prescription

Songs], which action was filed prior to the New York action. Glandian Aff., Exh. A at 711 3-4.

The California court has jurisdiction over the defendants in that case, as Gottwald is admittedly a

California resident, Prescription Songs is a California limited liability company, and KMI has its

principal place of business in Los Angeles, California. FAC at IN 9-11; Glandian Aff., Exh. A at

IN 7-11. The allegations in the California action all arise specifically from acts that took place in

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Los Angeles after Gottwald induced Kesha to move there to pursue what he represented would

be a glamorous music career under his auspices. Glandian Aff., Exh. A at 17. The allegations

detail many events of abuse which took place in California including a meeting at Gottwald's

Malibu house when he attacked Kesha as well as an incident where he gave Kesha a date rape

drug and she woke up naked in his hotel room, sore and sick with no memory of how she got

there. Glandian Aff., Exh. A at IN 21-23 & 35.

Since the instant action against Kesha alleging defamation and breach of contract derives

directly from Kesha' s allegations in the California action, the witnesses and evidence in this

action are primarily the same witnesses and evidence that will be needed in the underlying

California action. Since the majority of those witnesses and evidence is located in California,

that is the proper forum for this action. New York courts have long held that they should not be

vexed with litigations between non-resident parties over causes of action which arose outside of

our territorial limits, Robinson v. Oceanic Steam Nay. Co.,

112 N.Y. 315, 323-24 (1889), and

that they should not be compelled to retain jurisdiction over any case which does not have a

substantial nexus to New York. See Silver v. Great Am. Ins. Co.,

29 N.Y.2d 356, 361

(1972);

Wentzel v. Allen Mach., 277 A.D.2d 446, 447 (2d Dep't 2014).

V. THE COURT SHOULD DISMISS OR IN THE ALTERNATIVE STAY THIS

ACTION ON THE GROUND THAT THERE IS ANTOHER ACTION PENDING.

Pursuant to CPLR 3211(a)(4), a court has broad discretion as to the disposition of an

action when another action is pending between the same parties for the same cause of action in a

court of any state. CPLR 3211 (a)(4). The critical element is that both suits arise out of the

same subject matter or series of alleged wrongs.

Cherico, Cherico Assoc. v Midollo,

67

A.D.3d 622, 622 (2009) (internal quotation marks omitted).

Here, Plaintiffs filed the instant retaliatory action just hours after Kesha filed a complaint

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against them in California solely to forum shop. Both suits involve the longstanding professional

and personal relationship between the parties. In the California action, Kesha alleges that

Gottwald sexually, physically, verbally, and emotionally abused her throughout their ten-year

working relationship, ultimately pushing her to an eating disorder, entering rehabilitation, and to

a point where she nearly lost her life. Glandian Aff., Exh. A at ft 22-23, 39-40. Kesha further

alleges that Plaintiffs KMI and Prescription Songs, among Gottwald's other corporate entities,

took no action to protect her against Gottwald and instead engaged in efforts to cover up his

misconduct while continuing a business relationship despite knowledge of his despicable

conduct. Glandian Aff., Exh. A at 43. Kesha has asked the California court to void the

Gottwald Recording Agreement (which is the same as the KMI Agreement in this case)

and to

allow her to freely contract with other recording companies without interference or harassment

from Gottwald, KMI, or Prescription Songs. Glandian Aff., Exh. A at Prayer l 3.

Gottwald's claims against Kesha in the New York action arise out of the same conduct

that occurred in California and that is alleged in the California action. For example, Gottwald's

defamation claim against Kesha is based on the allegation of Kesha raising disgusting, fictitious

allegations with the intent of smearing Gottwald . . . FAC at 3. Since Gottwald would need

to prove the falsity of these statements in order to succeed on his defamation claim against

Kesha, the instant action involves the very same issues that are the subject of the California

action, namely whether Gottwald, in fact, abused Kesha both physically and mentally.

The same is true about Plaintiffs' claims against Kesha for breach of contract. In order to

prove a breach of contract, Plaintiffs would need to prove that the KMI Agreement and the

5

Indeed, in the original complaint, Plaintiffs referred to the KMI Agreement as the

Gottwald Recording Agreement, recognizing that this case should be litigated in California.

ee

Cmpl. at 17.

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G RMS Fd

Z RAGOS, APC

By:

Tina Glan

256 5th Avenue


(213) 625-3900

[email protected]

Prescription Publishing Agreement are valid and enforceable and that Kesha s alleged failure to

honor her obligations under the agreements were not justified under the circumstances.

In the event the Court determines that dismissal of this action would be premature, the

Court should stay this action pending the outcome of the California action, which was filed first.

This will avoid the waste of judicial resources and prevent the risk of inconsistent verdicts from

being rendered in different states.

CONCLUSION

For the foregoing reasons, Defendant Kesha Sebert respectfully requests that her motion

to dismiss the First Amended Complaint for improper service of process, lack of personal

jurisdiction,

forum non conveniens

and another action pending be granted in its entirety.

Dated: New York, New York

January 14, 2015

Respect

y

y4ubmitted,


Documents

Kesha Sebert Moves To Dismiss, 1/14/15