UNITED STATES DISTRICT COURT EASTERN

Transcription

2:15-cv-12535-SFC-APP Doc # 1 Filed 07/16/15 Pg 1 of 14
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ONLY AUTHENTICS, LLC, New Jersey
Limited Liability Company
Plaintiff
v.
Case No.
Hon.
BIRMINGHAM ESTATE & JEWELRY
BUYERS INC., a Michigan Corporation
ANTHONY K. AUBREY, a Michigan
resident; jointly and severally
VERIFIED COMPLAINT
Plaintiff ONLY AUTHENTICS, LLC (“PLAINTIFF”), for its Verified Complaint
against BIRMINGHAM ESTATE
& JEWELRY BUYERS INC., a Michigan
Corporation and ANTHONY K.
AUBREY, a Michigan resident (collectively
“DEFENDANTS”); jointly and severally states as follows:
Introduction
Plaintiff, a New Jersey LLC, sells luxury handbags to individuals
and companies throughout the United States. Defendants entered into an
agreement with Plaintiff to purchase five (5) handbags from Plaintiff for
$69,500.00. The parties agreed that Defendants would pay $20,000.00 as
a down payment, to Plaintiff and the balance on May 26, 2015 at a trade
show in Las Vegas. Defendants provided Plaintiff with the $20,000.00
down payment and Plaintiff sent the five handbags to Defendant.
Defendants, however, never paid the balance for the handbags. Rather, he
sold them to another dealer in Maryland at a price less than what
Defendants agreed to pay Plaintiff. Once the Maryland dealer was
notified by Plaintiff that it was not paid by Defendants, the Maryland
dealer shipped the purses back to Defendants. Plaintiff then demanded
Defendants to return the goods or pay the balance owed. Defendants
refused and based on information and belief, Defendants still hold the
goods at its store. Plaintiff is filing this action for statutory and common
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law conversion, fraud, breach of contract under the UCC, unjust
enrichment, and claim and delivery.
PARTIES, JURISDICTION, AND VENUE
1.
Plaintiff is a New Jersey limited liability company, with its principal place
of business in Hudson County, New Jersey.
2.
Birmingham Estate & Jewelry Buyers Inc. (“Birmingham”) is a Michigan
corporation with its principal place of business in Oakland County, Michigan.
3.
Upon information and belief, Anthony K. Aubrey resides in Rochester
Hills, Oakland County, Michigan (“Aubrey” and “Birmingham”, the “Defendants”).
4.
Jurisdiction is proper with the Court under 28 U.S.C. 1332 where the
matter in controversy exceeds the sum of $75,000.00 and there is diversity in citizenship
among parties.
5.
The venue in this action is proper within the Eastern District pursuant to
28 USC § 1391(b), in that (i) Defendants are located and/or reside in this District; (ii)
Defendants conducted business with the Plaintiff within this judicial district; and (iii) all
of the claims asserted by Plaintiff arose within this judicial district.
FACTUAL ALLEGATIONS
6.
Plaintiff incorporates and re-alleges the above paragraphs by reference.
7.
Plaintiff is a luxury handbag dealer, in the business of selling new and
vintage designer handbags, such as Hermès and Chanel, operating primarily out of North
Bergen, New Jersey.
8.
Plaintiff purchases vintage handbags from private individuals, obtains
certification of their authenticity from a third party, and resells the handbags to various
independent retail outlets and online.
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9.
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Defendants are in the business of selling jewelry, watches, and luxury
handbags operating a retail store in Birmingham, Michigan.
10.
Aubrey, upon information and belief, is the sole shareholder, director, and
officer of Birmingham.
11.
On or about May 12, 2015, via a series of text messages Defendants and
Plaintiff entered into an agreement under which Plaintiff agreed to sell Five (5) authentic,
new, unused, Hermès handbags, valued at Sixty Nine Thousand Five Hundred Dollars
($69,500.00) in the amount of Sixty One Thousand Five Hundred Dollars ($61,500.00),
hereinafter the “Total Purchase Price”. Exhibit 1, Contract signed by Defendant Aubrey
with Docusign®; Exhibit 2, Text Messages between parties.
12.
Four of the five handbags were authenticated and registered by an
independent Hermès Authentication service, with a specific serial number; the fifth
handbag was a special request made by a specific client of Defendants featured in a
photograph. The handbags Defendant ordered were as follows:
a. Hermès Birkin 35 cm, Kiwi, B129 (Exhibit 2)
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b. Hermès Birkin 30cm, Turquoise, 197 A (Exhibit 3)
c. Hermès Birkin, 35 cm, Orange, U26 (Exhibit 4)
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d. Hermès Birkin, 30 cm, Black, M136 (Exhibit 5)
e. Hermès Evelyn Iris (Exhibit 6)
13.
Under the terms of the Agreement, Birmingham was obligated to pay for
the handbags, first with a “down payment” of Twenty Thousand Dollars ($20,000.00),
which was paid on May 14, 2015, Exhibit 6.
14.
Defendants agreed to pay the balance of the Total Purchase Price in the
amount of ($41,500.00) on or before May 26, 2015. (See Exhibit 1).
15.
On or about May 19, 2015, Plaintiff shipped and delivered the handbags
described in detail in Exhibit 1 through 6, and valued at $69,500.00, to Defendants
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pursuant to the Agreement, for which Defendants agreed to pay. Exhibit 9, Fed Ex
Shipping labels and receipts.
16.
Defendant Aubrey acknowledged receipt of the packages via text message.
Exhibit 10.
17.
The handbags listed on Exhibit 1 and described in Exhibits 2-6, are
hereinafter collectively referred to as “Handbags”.
18.
Defendants failed to make the second payment in the amount of
$41,500.00 on May 26, 2015.
19.
Plaintiff has made both oral and written demands upon Birmingham and
Aubrey for payment of the Handbags. Exhibit 11.
20.
Despite Plaintiff’s demands, Birmingham and Aubrey have refused to pay
for the outstanding balance due. Exhibit 13.
21.
Upon information and belief, and in violation of Plaintiff’s rights in the
Handbags, by shipping some or all the Handbags to Smyth Jewelers in Baltimore,
Maryland. Attached as Exhibit 12, is a text message exchange with representatives from
Smyth Jewelers, stating that the bags were shipped back to Defendant Aubrey.
22.
Defendants are in possession, control, and/or custody of some or all of the
Handbags and have converted them for their own use and for a purpose for their own
benefit, interest and personal gain.
23.
Despite written demand from Plaintiff, Defendants refuse to either pay the
outstanding balance or return the Handbags under possession, custody, or control to the
Plaintiff, the rightful owner or pay for them as demanded. Exhibit 11.
24.
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Each Handbag is an independent piece of property.
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25.
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Plaintiff files this complaint seeking treble damages in the amount of
$124,500.00 under MCL 600.2919a(1)(a), in addition to costs, attorney fees and interest
incurred in pursuit of the claim as allowed under the statute. In the alternative, Plaintiff
seeks the right of return of the Handbags located in the State of Michigan and under the
Court’s jurisdiction.
COUNT I
VIOLATION OF MCL 600.2919a - STATUTORY CONVERSION
26.
27.
The Defendants concealed, embezzled or converted Plaintiff’s property to
their own use in violation of MCLA 600.2919a(1)(a).
28.
Defendants Birmingham and Aubrey converted the Plaintiff’s property for
their own use, with knowledge that property was Plaintiff’s property, when they failed to
make payment as due, and held out the handbags for sale and personal profit, in violation
of MCLA 600.2919.
29.
Upon information and belief, Defendants converted the property for their
use when they attempted to sell the Handbags in store, and sold and shipped the property
out of state to Smyth Jewelers in Baltimore, Maryland.
30.
As a result, Plaintiff has been damaged in an amount in excess
$124,500.00, in addition to attorney fees, costs and interest. Plaintiff is entitled to treble
damages under MCLA 600.2919.
COUNT II – COMMON LAW CONVERSION
31.
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32.
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The Defendants wrongfully exerted dominion over Plaintiff’s property in
denial of Plaintiff’s rights therein when Defendants failed to make payment as due
pursuant to the Contract.
33.
Defendants retained such property without Plaintiff’s consent and the
Defendants have an obligation to return the property because they were not entitled to
them without paying for them.
34.
Defendants have not returned the property, nor made payment for the
property.
35.
As a result, Plaintiff has been damaged in an amount in excess of the
$124,500.00.
COUNT III – BREACH OF CONTRACT
UNDER MICHIGAN COMMERCIAL CODE, MCL 440.1101 et seq.
36.
37.
Plaintiff is a merchant that deals in the sale of luxury handbags and goods.
38.
Defendant is a merchant that deals in the sale of jewelry, antiques, and
other luxury goods such as handbags.
39.
The Michigan Commercial Code applies here where the issue is the sale of
goods, Handbags, and the price is over $1000, or more.
40.
Under the Michigan Commercial Code, “[a] contract for sale of goods
may be made in any manner sufficient to show agreement, including conduct by both
parties which recognizes the existence of such a contract.” MCL 440.2204.
41.
Contracts for the sale of goods where the price is $1,000 or greater are
enforceable where there is a “writing sufficient to indicate that a contract for sale has
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been made between the parties and signed by the party against whom enforcement is
sought.” MCL 440.2201(1).
42.
Each time Defendants initiated a purchase order for handbags from
Plaintiffs, an offer was made. The terms of the offer would be negotiated verbally, or in
writing via text messages.
43.
On May 14, 2015, the Plaintiff and Defendant entered into a contract for
the sale of the handbags, Exhibit 1; the contract was electronically signed by the
Defendant Anthony Aubrey by Docusign®.
44.
In the event the contract were not found enforceable, a contract was
nevertheless formed “[w]ith respect to goods for which payment has been made and
accepted or that have been received and accepted under” MCL 440.2606. MCL 440.2201
(3)(c).
45.
Through the course of conduct between the parties, Defendants made an
order or other offer to buy goods, the Handbags, for prompt or current shipment by the
seller Plaintiff. Exhibit 2.
46.
Defendants invited acceptance either by a prompt promise to ship or by
the prompt shipment of conforming or nonconforming goods.” MCL 440.2206(1)(b).
47.
The Plaintiff shipped the goods to Defendants immediately, Exhibit 9.
48.
Defendants acknowledged receipt of the Handbags, and did not object or
refuse shipment therein.
49.
Defendants made a payment of deposit on the Handbags, Exhibit 8.
50.
Defendants breached the contract when it failed to pay the balance due on
the Handbags.
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51.
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Plaintiff reasonably relied on Defendants’ representations that it would
pay for the goods delivered.
52.
Plaintiff fully performed its part in the agreement, in that Plaintiff
Delivered the ordered goods to Defendants at the time and place agreed upon by the
parties.
53.
As a direct and proximate cause of Defendants’ continuous breaches,
Plaintiff has suffered extreme financial losses in the form of lost profits. Had Defendant
paid the outstanding balances for the handbags, Plaintiff would have marginally profited
from the sales. Instead, Defendants bad faith breaches resulted in Plaintiff suffering
gross loss as result of the Defendants’ breach in the amount of $41,500.00.
COUNT IV - UNJUST ENRICHMENT
54.
55.
Defendants received a benefit from the plaintiff in that they accepted
luxury handbags valued at $69,500.00 and failed to pay Plaintiff for them.
56.
An inequity results to plaintiff because of the retention of the benefit by
Defendants. Barber v SMH (US), Inc, 202 Mich App 366, 375; 509 NW2d 791 (1993).
57.
Equity demands the Plaintiff receive restitution for the inequity.
COUNT V - FRAUDULENT REPRESENTATION
58.
59.
On May 14, 2015, Defendant Aubrey made a material representation to
Plaintiff where he stated and signed a contract stating he would pay the balance of
$41,500.00 for the handbags at issue on May 26, 2015. (Exhibit 1, 2)
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60.
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The representation that he would pay the outstanding balance was false,
because he sold them to a third party, Smyth Jewelers at lower cost than he purchased
from Plaintiff, showing intent that he did not intend to pay the balance but instead
intended to profit off Plaintiff’s loss.
61.
Defendant knew it was false when it was made or made it recklessly,
without knowledge of its truth and as a positive assertion.
62.
The representation was made with the intention to induce reliance by the
Plaintiff to ship the handbags to the Defendants. (Exhibit 2).
63.
Plaintiff acted in reliance upon the Defendant’s representation by shipping
the goods to the Defendant with expectation that payment would be returned. (Exhibit 1,
2, 9)
64.
Plaintiff suffered injury when Defendants failed to pay for the goods in the
amount of $41,500.00, in addition to attorney fees, costs and interest.
COUNT V - CLAIM AND DELIVERY
65.
66.
Plaintiff has performed all of its obligations under its agreement with
Defendants.
67.
Plaintiff has shipped Handbags valued at $69,500.00 to Defendants.
68.
Defendants’ refusal to pay for the Handbags is a breach of its agreement
with Birmingham.
69.
Pursuant to the parties’ agreement, Defendants have not paid for
$41,500.00 of the handbags and Plaintiff is entitled to possession of all the Handbags.
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70.
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To the extent Defendants are in possession, custody, or control of the
Handbags, such possession, custody, or control, is in violation of Plaintiff’s ownership
and right of possession of the Handbags.
71.
Despite Plaintiff’s demands that Defendants return the Handbags,
Defendants have not returned the Handbags.
72.
Plaintiff is entitled to possession of the Handbags.
WHEREFORE, Plaintiff respectfully requests this Court enter a judgment
awarding Plaintiff
(A) Injunctive relief returning possession of the Handbags to Plaintiff; or
(B) Judgment in the amount $124,500.00, constituting the treble damages to
which Plaintiff is entitled under MCL 600.2929a(1);
(C) Reasonable Attorney fees, costs as permitted under MCL 600.2919a;
(D) Other and further relief as Court deems just and proper.
RESPECTFULLY SUBMITTED
DALTON & TOMICH, PLC
BY: /S/ Daniel P. Dalton
Daniel P. Dalton (P 44056)
Zana Tomich (P 65472)
719 Griswold St. Suite 270
Detroit MI 48226
[email protected]
[email protected]
313-859-6000
July 15, 201
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ONLY AUTHENTICS, LLC, New Jersey
Limited Liability Company
Plaintiff
v.
Case No.
Hon.
BIRMINGHAM ESTATE & JEWELRY
BUYERS INC., a Michigan Corporation
ANTHONY K. AUBREY, a Michigan
resident; jointly and severally
PLAINTIFF ONLY AUTHENTICS, LLC’S JURY DEMAND
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demands trial by
jury in this action of all issues so triable.
RESPECTFULLY SUBMITTED
DALTON & TOMICH, PLC
BY: /S/ Daniel P. Dalton
Daniel P. Dalton (P 44056)
Zana Tomich (P 65472)
719 Griswold St. Suite 270
Detroit MI 48226
[email protected]
[email protected]
313-859-6000
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UNITED STATES DISTRICT COURT EASTERN

Transcription

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