Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cammarata v. Kelly Capital LLC

United States District Court, D. New Jersey

April 26, 2017

FRANK S. CAMMARATA, as successor to MHP II Corporation, doing business as CAMMARATA ASSOCIATES, Plaintiff,
v.
KELLY CAPITAL LLC and MICHAEL R. KELLY, Defendants.

          THOMAS J. BURNS, III LINDSEY HOUSMAN BUDD LARNER On behalf of plaintiff

          JONATHAN DAVID HENRY SHAWN LUNNEY DENTONS U.S. LLP On behalf of defendants

          MEMORANDUM OPINION & ORDER

          NOEL L. HILLMAN, U.S.D.J.

         WHEREAS, on October 14, 2016, the Court dismissed the claims of plaintiff, Frank S. Cammarata, who does business as a sole proprietor under the name Cammarata Associates, against defendants, Kelly Capital LLC and Michael Kelly, for lack of personal jurisdiction (Docket No. 21); and

         WHEREAS, plaintiff had alleged that defendants failed to pay him a commission for his role in connecting defendants with a Virginia-based tobacco company that sold escrow release funds; and

         WHEREAS, when assessing defendants' motion to dismiss for lack of personal jurisdiction, the Court found that defendants did not deliberately engage in significant activities in New Jersey, or create a continuing obligation between them and plaintiff, or manifestly avail themselves of the privilege of conducting business in New Jersey, and, as a result, this Court could not exercise personal jurisdiction over defendants to resolve plaintiff's claims against them (Docket No. 21 at 23); and

         WHEREAS, the Court dismissed without prejudice plaintiff's complaint, and noted that plaintiff was not left without a forum in which to prosecute his claims against defendants - e.g., in California where defendants are citizens (Docket No. 21 at 19 n.9 and 23 n.11); and

         WHEREAS, defendants have filed the instant motion[1] for attorney's fees and costs, arguing that they are entitled to their fees and costs because they are the prevailing party in this case, as provided in their agreement:

8) ATTORNEY'S FEES: In any litigation, arbitration or other legal proceedings which may arise between the parties hereto, the prevailing party shall be entitled to recover its costs, including costs of arbitration, and reasonable attorney's fees in addition to any other relief to which such party may be entitled.

(Docket No. 24-1 at 2); and

         WHEREAS, plaintiff has opposed defendants' motion, arguing that in addition to defendants' motion being untimely, it is substantively unavailing because they cannot be deemed as the “prevailing party” when the Court dismissed plaintiff's complaint for lack of personal jurisdiction, rather than on its merits, and because plaintiff did not agree to the attorney's fees provision as it is being interpreted by defendants[2]; and

         WHEREAS, plaintiff further argues that defendants' motion is premature because on February 21, 2017, he refiled his complaint against defendants in the Southern District of California (Docket No. 28); and WHEREAS, defendants counter that their motion is timely, and that plaintiff cannot dispute the clear and unambiguous language of the attorney's fees provision that makes defendants the prevailing party; and

         WHEREAS, even accepting that defendants' motion was timely filed, [3] the Court must deny defendants' motion; and

         WHEREAS, if the Court were to substantively consider defendants' motion, the Court would need to construe the attorney's fees provision in the parties' agreement, which would necessitate a choice-of-law analysis because the agreement is silent as to which state's law should apply to it, and that undertaking would be in direct contravention of the Court's finding that it ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.