Motion to Dismiss in Cresco Labs New York, Llc, a New York limited liability company, Cresco Labs Llc, An Illinois Limited Liability Company v. Fiorello Pharmaceuticals, Inc., a New York corporation, Eric Sirota, Susan Yoss, John Does 1

On May 11, 2018 a Motion,Ex Parte was filed involving a dispute between Cresco Labs Llc, An Illinois Limited Liability Company, Cresco Labs New York, Llc, A New York Limited Liability Company, and Eric Sirota, Fiorello Pharmaceuticals, Inc., A New York Corporation, John Does 1 - 10, Susan Yoss, for Commercial Division in the District Court of New York County.

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EXHIBIT 58
Opening Memorandum of Law in Support of Motion
to Dismiss in Cerberus Capital Management, L.P. v.
Snelling & Snelling, Inc., 600454/05

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-X

CERBERUS CAPITAL MANAGEMENT, L.P.,
Index No.: 600454/05
Plaintiff,

- against -

SNELLING & SNELLING, INC., MELINDA S.
PAULK, ROBERT R. PAULK, RICHARD R.
SPRAGINS, ROBERT O. SNELLING, JR., J.
RUSSELL CREWS, ROBERT O. SNELLING,
SR., ANNE SNELLING, PATRIARCH
PARTNERS, LLQ LYNN TILTON, and “JOHN
DOE” 1THROUGH 100,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS SNELLING &
SNELLING, INC., MELINDA S. PAULK, ROBERT R. PAULK, RICHARD R.
SPRAGINS, ROBERT O. SNELLING, JR., AND J. RUSSELL CREWS’
MOTION TO DISMISS THE COMPLAINT PURSUANT
TO CPLR 321 HalfT) AND (81 AND CPLR 327

ARKIN KAPLAN LLP
590 MADISON AVENUE
NEW YORK. N.Y. 10022

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
•X

CERBERUS CAPITAL MANAGEMENT, L.P.,
Index No.: 600454/05
Plaintiff,

- against -

SNELLING 8c SNELLING, INC., MELINDA S.
PAULK, ROBERT R. PAULK, RICHARD R.
SPRAGINS, ROBERT O. SNELLING, JR., J.
RUSSELL CREWS, ROBERT 0. SNELLING,
SR., ANNE SNELI.ING, PATRIARCH
PARTNERS, LLC, LYNN TILTON, and “JOHN
DOE” 1 THROUGH 100,

Defendants.

# Michelle A. Rice
Tracy V. Schaffer
ARKIN KAPLAN LP
590 Madison Ave., 35th Floor
New York, New York 10022
% (212) 333-0200 (phone)

Attorneys for Defendants
Snelling & Smiling, Inc., Melinda S. Paulk,
Robert R. Paulk, Richard R. Spragins, Robert O.
Snelling, Jr., andJ. Russell Crews

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TABLE OF CONTENTS

PRELIMINARY STATEMENT. 1

FACTUAL BACKGROUND 3

A. The Parties 3

B. The Facts 5

1. Patriarch’s December 2004 Offer to Acquire Snelling 5

2. Letter of Intent 5

3. Snelling Enters Into Transaction with Patriarch 8

ARGUMENT 8

I. THIS COURT LACKS PERSONAL JURISDICTION OVER THE SNELLING
8
DIRECTORS.....................................................................................................

11. THIS COURT SHOULD DECLINE JURISDICTION UNDER THE DOCTRINE OF
10
FORUM NON CONVENIENS....................................................................................

III. THE COMPLAINT MUST BE DISMISSED IN ITS HSITIRETY AGAINST THE
SNELLING DIRECTORS BECAUSE THEY WERE ACTING IN THEIR CAPACITY
AS DIRECTORS, OFFICERS AND SHAREHOLDERS OF SNELLING 12

IV. THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION AGAINST
SNELLING AND THE SNELLING DIRECTORS...................................... 13

A. There Are No Facts Alleged In Support Of The Causes Of Action For Breach
Of Contract And The Duty to Negotiate In Good Faith................................... 13

B. The Causes Of Action For Breach Of The Ehity To Negotiate In Good
16
Faith Must Be Dismissed As Redundant........................................................

C. Cerberus Fails To Sufficiently Allege Damages 16

CONCLUSION 19

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• ■

TABLE OF AUTHORITIES

Page

Cases

131 Liquidating Corp. v. Lasalle Capital Group. Inc.. 44 F. Supp. 2d 552 (S.D.N.Y. 1999) 17

Abbacor. Inc, v. Miller. 2001 WL 1006051 at *5 (S.D.N.Y.) 12,13

Atkins Nutritionals. Inc, v. Ernst & Young. LLP. 301 A.D.2d 547, 754 N.Y.S.2d 320 (2d Dep’t
2003) 18

Beattie Brown & Wood. 243 A.D.2d 395, 663 N.Y.S.2d 199 (1st Dep’t 1997) 13

Brandt v. Torabv. 273 A.D.2d 429, 710 N.Y.S.2d 115 (2d Dep’t 2000) 8

Brener & Lewis Memt Co. Estate of Crespi. 268 A.D.2d 243, 701 N.Y.S.2d 40 (1st Dep’t 2000)
13

Cilento v. Smyrna Bldg Com.. 2003 WL 21976575 at *1 (N.Y. Sup. Ct. App. Term 2003), 12

Fasolino Foods Co.. Inc, v. Banco Naaonale del Lavoro. 961 F.2d 1052 (2d Cir. 1992), 16

Goodstein Constr. Com, v. City of New York. 80N.Y.2d366, 590 N.Y.S.2d 425 (1992).... 17,18

Gordon v. Pino De Laurentiis Com.. 141 A.D.2d 435, 529 N.Y.S.2d 777 (1st Dep’t 1988)
13,14,15

Gulf Oil Coro. V. Gilbert. 330 U.S. 501 (1947) 10

Hawthorne Group. LLC v. RRE Ventures. 7 A.D.3d 320, 776 N.Y.S.2d 273 (1st Dep’t 2004).. 16

Hoffi-itz For Cutlery. Inc, v. Amaiac. Ltd.. 763 F.2d 55 (2d Cir. 1985) 8

Interface Biomedical Labs, v. Axiom Med.. Inc.. 600 F. Supp. 731 (E.D.N.Y. 1985), 8
#
Islamic Republic of Iran v. Pahlavi. 62 N.Y.2d 474,478 N.Y.S.2d 597 (1984) 10,11,12

Joan Hansen & Co.. Inc, v. Everlast World’s Boxing Headquarters Com.. 296 A.D.2d 103,744
N.Y.S.2d 384 (1st Dep’t 2002).............................................................................................
17

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Leigh Mgmt. Assocs. v. Weinstein. 251 A.D,2d 225, 226, 674 N.Y.S.2d 688, 689 (1st Dep’t
17
1998)........................................................................................................... ......................

Ohm Remediation Servs. Corp. v. Hughes Enviromnental Svs.. Inc.. 952 F.Supp., 120 (N.D.N.Y.
1997) 16

Paine Webber Inc, v, Westgate Group. Inc.. 748 F. Supp. 115 (S.D.N.Y. 1990) 8

Professional Personnel Mgmt. Coro, v. Southwest Med. Assocs.. Inc.. 216 A.D.2d 958, 628
9
N.Y.S.2d 919 (4th Dep’t 1995))......................................................................................

Rosen v. Watermill Dev. Com.. 1 A.D.2d 424, 768 N.Y.S.2d 474 (2d Dep’t 2003) 12

Statutes

CPLR 302...................... 1
CPLR 302(a)................. 8
CPLR 302(a)(1).............. 8
CPLR 3026.................... 12
CPLR 3211(a)(7) and (8) 1,13,15,18
CPLR 327...................... ....1,10,11

iii

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Defendants Snelling & Snelling, Inc. (“Snelling”), and Melinda S. Paulk, Robert R.

Paulk, Richard R. Spragins, Robert O. Snelling, Jr., and J. Russell Crews (collectively, the

Snelling Directors”) submit this memorandum of law in support of their motion to dismiss the

complaint of plaintiff Cerberus Capital Management, L.P. (“Cerberus”) pursuant to CPLR

3211(a)(7) and (8) and CPLR 327.

PRELIMINARY STATEMENT
#
Having failed to consummate its proposed acquisition of Snelling within the

ample time period allotted in the letter of intent and extensions that it drafted, Cerberus tetchily

!#
searches about for somieone to blame. In its plainly deficient complaint against everyone who

had any involvement Avith Snelling or its successful suitor, Cerberus basically claims that the

exclusivity and confidentiality provisions in the letter of intent must have been breached because

Defendants Patriarch Partners, LLC (“Patriarch”) was able to close a deal satisfactory to Snelling

in a few days’ time. Never mind that Patriarch conducted its due diligence of Snelling weeks

before Snelling and Cerberus executed the letter of intent and, therefore, was positioned to

quickly close a transaction once Cerberus relinquished its right of exclusivity. Cerberus

ultimately did not triumph and, so the logic goes, someone has to pay.

Cerberus’ ire notwithstanding, its Complaint is deficient and must be dismissed.

None of the five Snelling Directors - each of whom have been sued for breaching the letter of

intent - reside in or have any contact with New York. Indeed, Cerberus cannot make a prima

facie showing that personal jurisdiction exists over Melinda Paulk, Robert Paulk, Richard

Spragins, Robert Snelling Jr., or J. Russell Crews under CPLR 302 because Cerberus is

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completely unable to demonstrate that the causes of action for breaches of the letter of intent and

the covenant of good faith arise out of any activity conducted by ftie Snelling Directors (or, for

that matter, Snelling itself) in New York.

Even if this Court somehow were to find that it has personal jurisdiction over

these five nondomiciliary defendants, the action should be dismissed under principles offorum

non conveniens. The letter of intent between and among Cerberus, Snelling and the five Snelling

Directors has no articulable nexus with New York and, among other reasons, virtually all of the

principal witnesses and most of the relevant documents required for a trial of Cerberus’ claims

are located in Texas. The adjudication of this case in New York would impose an undue burden

on this Court and the parties to the litigation.

As if this were not enough, the Complaint also fails to state causes of action

against Snelling or the Snelling Directors. As against Snelling and the Snelling Directors, there

are no facts alleged in the Complaint demonstrating that any of them breached the exclusivity or

confidentiality provisions of the letter of intent. Cerberus’ rank speculation that “it would have

been impossible [for Patriarch] to negotiate a final agreement to acquire Snelling, a company that

generates approximately $250 million in annual revenues, in a matter of hours” is both factually

inaccurate and insufficient to defeat a motion to dismiss. Likewise, there are no facts alleged in

the Complaint demonstrating that Snelling or the Snelling Directors did not negotiate in good

faith. Indeed, the Complaint does not contain a single allegation that Cerberus was hampered

when it conducted its due diligence or denied access to information during the exclusivity period.

Nor does the Complaint allege facts demonstrating that Snelling and/or the Snelling Directors

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negotiated with any potential suitors for the company, including Patriarch, during that period.

The Complaint is also devoid of any allegations that the Snelling Directors signed the letter of

intent in their individual capacities, or somehow acted outside the scope of their authorities as

# corporate representatives of Snelling, thus precluding their liability for the corporation’s breach

of the agreement as a matter of law.

Finally, Cerberus cannot recover damages for either of the two causes of action

asserted against Snelling or the Snelling Directors, regardless of whether they are well pleaded.

Expectation damages of the sort sought by Cerberus are not available as a matter of law for breach of

an exclusivity provision.

FACTUAL BACKGROUND

A. The Parties

Plaintiff Cerberus is a Delaware limited partnership with its principal place of

business in New York, New York. (Compl. TI8.)’

Defendant Snelling is a Delaware Corporation with its principal place of business in

Dallas, Texas. (Compl. ^ 9.) Snelling had over 200 company-owned and franchised offices in 40

states - only two of which are in New York, New York. (Compl. ^ 9; M. Paulk Aff T| 4.)^

Defendant Melinda S. Paulk was the President of Snelling and a director and

shareholder of Snelling. (M. Paulk Aff. TI3.) Ms. Paulk worked out of Snelling’s headquarters in

Dallas, Texas for the past 15 years and resides at 5921 Turtle Creek Drive, Plano, Texas. (Id. at

2-3.)

‘ References to “Compl.” are to the Complaint filed by Cerberus on February 4,2005.
2 The Snelling Directors have each submitted affidavits in support of their motion to dismiss for lack of personal

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Defendant Robert R. Paulk was the Senior Vice President of Franchise Operations at

Snelling and was also an officer and shareholder of Snelling. (R, Paulk Aff. f 3.) Mr. Paulk worked

out of Snelling’s headquarters in Dallas, Texas for the past 15 years and resides at 5921 Turtle Creek

Drive, Plano, Texas. (Id. at 2-3.)

Defendant Richard H. Spragins was the Senior Vice President of Marketing and Vice

Chairman of Snelling and also was a director and shareholder of Snelling. (Spragins Aff. T| 3.) Mr.

Spragins worked out of Snelling’s headquarters in Dallas, Texas for the past 17 years and resides at

5901 Newgate Lane, Plano, Texas. (Id- at TIf 2-3.)

Defendant Robert O. Snelling, Jr. was the Chief Information Officer and a Senior

Vice President of Snelling and also was a director and shareholder of Snelling. (Snelling Jr. Aff ^

3.) He was employed by Snelling for approximately 15 years and worked out of Snelling’s

headquarters in Dallas, Texas. (Id.) Mr. Snelling resides at 1305 Savannah Drive, Plano, Texas.

(Id. at HI 2-3.)
Defendant J. Russell Crews was employed as the Chief Financial Officer and a Senior

Vice President of Snelling. (Crews Aff f 3.) He also was a director and shareholder of Snelling.

(Id.) Mr. Crews was worked out of Snelling’s headquarters in Dallas, Texas for the past 16 years and

resides at 5116 Beckington Lane, Dallas, Texas. (Id. at HH 2-3.)

Upon information and belief, defendants Robert Snelling, Sr. and Anne Snelling

reside in Texas and are shareholders of Snelling. (Compl. at 2.)

jurisdiction.

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Upon information and belief, Defendant Patriarch Partners L.L.C, (“Patriarch”) is a

Delaware limited liability company with its principal pace of business in New York, New York.

(Compl. If 16.)

Upon information and belief, defendant Lynn Tilton is a resident of New Jersey.

(Compl. f 17.)

B. The Facts

1. Patriarch’s December 2004 Offer to Acquire Snelling

In the late fall of2004, Snelling was on the verge of bankruptcy and was seeking to

restructure its debt and/or otherwise recapitalize. (M. Paulk Aff f 5, R. Paulk Aff ^ 4.) In or about

November 2004, Patriarch approached Snelling to discuss a potential acquisition of its business.

(Id.) On or about December 7,2004, Snelling and Patriarch entered into a non-disclosure agreement,

pursuant to which Patriarch conducted due diligence and discussed the above potential transaction

with Snelling. (Id.)

On December 24,2004, Snelling’s financial advisor from XRoads Solutions Group

(“XRoads”) sent a written offer from Lynn Tilton of Patriarch making an offer to acquire the

business of Snelling. (M. Paulk. Aff. 1 7; R. Paulk Aff f 6.) The offer provided that Patriarch

would acquire Snelling’s assets and assume all of Snelling’s liabilities without conducting additional

due diligence. (Id.) Snelling did not accept Patriarch’s offer. Qd.)

2. The Letter of Intent

On January 9,2005, Cerberus and Snelling entered into a letter of intent (the “Letter

of Intent”) in connection with the potential acquisition by Cerberus of the assets and/or equity of

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Snelling (the “Contemplated Transaction”). (Compl. 1, 21, Ex. A.) The Letter of Intent was

drafted by Cerberus and executed in Texas by Snelling and the Snelling Directors in their capacities

as officers, directors and/or shareholders of Snelling. (Compl. Ex. A; M. Paulk Aff. f 11, R. Paulk

Aff. TI Spragins Aff. ^ 7, Snelling Jr.Aff. f 7, Crews Aff. T| 7.) The Letter of Intent was

negotiated by Keith Maib of XRoads from his home in Kansas City, Missouri, and a representative

from Cerberus. (Id. At 9-10; 8-9; 6; 5-6; 6.) None of the Snelling Directors traveled to New York

for any meetings or negotiations related to the Letter of Intent. (Id, 10; 9; 6; 6; 6.) Indeed, none

of the Snelling Directors had any contact whatsoever with anyone from Cerberus in New York in

connection with the negotiation of the Letter of Intent. (Id.)

The Letter of Intent purports to create binding and nonbinding obligations on

Snelling. (Compl. Ex. A § 9.)^ Among other things, the Letter of Intent contains a Non-

Circumvention and Exclusivity Clause (the “Exclusivity Clause”) that required Cerberus to complete

the acquisition, if there was to be one, within 15 days. (Compl. Ex. A §§ 6,4.) Cerberus chose to

impose upon itself an exclusive negotiating period of 15 days from the date of the agreement - until

January 23,2005 - unless the agreement was terminated earlier. (Compl. Ex. A § 6.) The Letter of

Intent also contains a Confidentiality Clause under which the signatories agreed to keep confidential

and not disclose the terms of the Letter of Intent, the terms or conditions contained in the Letter of

Intent, the Contemplated Transaction or the fact that discussions were ongoing. (Compl. 123, Ex. A

§8.)

^ Paragraph 9 of the Letter of Intent provides that “[o]ther than the obligation to negotiate in good faith contained in
Paragraph 3 and other than Paragraphs 6 through 14, which are intended to be binding agreements of the parties, this
Letter is intended to serve only as an expression ofthe parties ’ intent and not as a binding obligation to negotiate towards
or consummate the contemplated Transaction; any such obligation will be created only by execution and delivery of the

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Immediately upon executing the Letter of Intent, Cerberus began its due diligence.

(Compl. f 28.) Over the next two weeks, Cerberus continued its due diligence and the parties.

according to Cerberus, engaged in “intense discussions” and negotiations concerning the

Contemplated Transaction. (Compl. ^ 29-30.) Cerberus performed all of its due diligence in

Snelling’s Dallas office over a 2-3 week period, during which time at least 10 representatives from

Cerberus and its consultants, outside accountants and a Cerberus staffing company, descended upon

Snelling’s offices in Dallas at various times to conducted due diligence. (M. Paulk Aff. ^ 14; R.

Paulk Aff. f 12; Spragins Aff. f 9; Snelling Jr. ^ 9; Crews Aff. ^ 9.) No due diligence was

conducted in Snelling’s New York offices. (M. Paulk Aff. f 15; R. Paulk Aff. H 13; Spragins Aff. ^

10; Snelling Jr. 10; Crews Aff. f 10.) The Snelling Directors’ involvement in the due diligence by

Cerberus was quite limited and consisted of little more than responding to questions posed by the

Cerberus representatives stationed in Texas. (Id.) None of the Snelling Directors met with any

Cerberus representatives in New York, recall placing any phone calls to, or receiving any phone calls

from, Cerberus representatives in New York, or recall sending or receiving any written

communications from Cerberus representatives in New York concerning the due diligence. (Id.)

After the 15-day exclusivity period imposed by Cerberus expired, Snelling agreed to

a two-day extension of the exclusivity period so that the parties could continue negotiations.

(Compl. Til 25,30, Ex. B.) When Cerberus was still unable to close the Contemplated Transaction,

Snelling agreed to one final five-day extension of the exclusivity period. (Compl. Ex. C.) Cerberus

was unable to consummate a transaction by January 30,2005, when the exclusivity period expired.

(Compl. t40.)

Purchase Agreement.” (Compl. Ex. A § 9.)
7

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3. Snelling Enters Into Transaction with Patriarch

Having already conducted and completed its due diligence back in December 2004

when it made its first offer to acquire the assets of Snelling, Patriarch was in a position to quickly

resume negotiations on February 1,2005, after the Cerberus exclusivity period expired. On February

3,2005, Patriarch finalized a transaction with Snelling. (M. Paulk Aff, H 17, R, Paulk Aff. f 16.)

ARGUMENT

1. THIS COURT LACKS PERSONAL JURISDICTION OVER THE SNELLING
DIRECTORS

To defeat a motion to dismiss based upon lack of in personam jurisdiction, Cerberus

must make a prima facie showing that jurisdiction exists over the Snelling Directors under CPLR

302(a). S^ Hoffntz For Cutlery. Inc, v. Amaiac. Ltd.. 763 F.2d 55 (2d Cir. 1985). Plaintiff

Cerberus bears the burden of establishing personal jurisdiction. See Brandt v. Torabv. 273 A.D.2d

429, 430, 710 N.Y.S.2d 115, 117 (2d Dep’t 2000) (dismissing complaint for lack of personal

jurisdiction and stating that “[t]he burden of proof lies with the party asserting jurisdiction.”) In

addition, Cerberus must establish the existence of “personal jurisdiction separately for each cause of

action asserted in [the] [Cjomplaint.” Interface Biomedical Labs, v. Axiom Med.. Inc,. 600 F. Supp.

731 (E.D.N.Y. 19851 (quoting Sterling Television Presentations v. Shintron. 454 F. Supp. 183,186

(S.D.N.Y. 1978)).

CPLR 302(a)(1) provides that jurisdiction may be acquired over a nondomiciliary

who “transacts business” within New York. Under this provision, a plaintiff must first demonstrate

that a defendant transacts business within the meaning of the statute, and, second, that the causes of

action arise directly out of the business that was transacted in New York. See Hofftitz. 763 F.2d at

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• '

58-59: Paine Webber Inc, v. Westeate Group. Inc.. 748 F. Supp. 115,118 (S.D.N.Y. 1990). With

respect to the first prong of this analysis, New York courts look at the nondomiciliaries’ activities

within the forum to determine whether they have conducted “purposeful” business activities in New

York. See Professional Persormel Mgmt. Corp. v. Southwest Med. Assocs.. Inc.. 216 A.D.2d 958.

628 N.Y.S.2d 919 (4th Dep’t 1995) (holding that interstate negotiations by telephone, facsimile or

mail are insufficient to constitute the purposeful activity required for personal jurisdiction); see also

Longines-Wittnauer Co. v. Barnes & Reinecke. Inc.. 15 N.Y.2d 443,457-58,261 N.Y.S.2d 8,18,

cert, denied. 382 U.S. 905 (1965). With respect to the second prong of the analysis, if the Court

determines that a nondomiciliary has transacted business in New York, then the plaintiff must

establish a “substantial nexus” between the business transacted and the cause of action. See Agency

Rent A Car Svs. v. Grand Rent A Car Coro.. 98 F.3d 25, 32 1996.

Cerberus has failed to make a prima facie showing that this Court has personal

jurisdiction over the Snelling Directors, all of whom reside in Texas. (Compl. 10-15.) The

Complaint does not contain any allegations that any of the Snelling Directors transacted business in

New York in connection Avith the Letter of Intent - from which both of Cerberus’ causes of action

against Snelling and the Snelling Directors arise. Nor does the Complaint allege that the Letter of

Intent was negotiated or executed in New York. The Complaint does not even allege that the

Snelling Directors, or any representative of Snelling, traveled to New York in connection with the

negotiation of the Letter of Intent. Indeed, the Complaint does not allege that the Snelling Directors

had any involvement whatsoever >vith the Letter of Intent other than signing it (in Texas).

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In conclusion, Cerberus fails to allege a single sufficient jurisdictional contact

between the Snelling Directors and the State of New York.

11. THIS COURT SHOULD DECLINE JURISDICTION UNDER THE DOCTRINE
OF FORUM NON CONVENIENS

Even if this Court finds it possible to exercise personal jurisdiction over the Snelling

Directors, it should use its discretion to dismiss Snelling and the Snelling Directors under principles

offorum non conveniens. This case is one whieh “would be better adjudicated elsewhere” - in

Texas. Islamic Republic of Iran v. Pahlavi. 62 N. Y.2d 474,479,478 N.Y.S.2d 597, 599 (1984), cgl

denied. 469 U.S. 1008 (1985).

The doctrine offorum non conveniens is codified in CPLR 327, which states, “[wjhen

the court finds that in the interests of substantial justice the action should be heard in another forum,

the court, on the motion of any party, may stay or dismiss the action in whole or in part on any

conditions that may be just. The domicile or residence in this State of any party to the action shall

not preclude the court from staying or dismissing the action.” CPLR 327(a) In deciding whether to

dismiss a complaint forforum non conveniens, courts weigh “public interest factors,” relating to the

convenience of the forum and the ends of justice, and “private interest factors,” relating to the

convenience of the litigants, against the plaintiffs selection of the forum. Gulf Oil Corp. v. Gilbert,

330 U.S. 501,508-09 (1947). Among the public and private interest factors to be considered are: (1)

the burden on the New York courts; (2) the potential hardship to the defendant; (3) the availability of

an alternative forum in which plaintiff may bring suit; (4) whether parties to the action are

nonresidents; and (5) whether the transaction out of which the cause of action ^ose occurred

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FILED: NEW YORK COUNTY CLERK 01/06/2022 11:23 PM INDEX NO. 652343/2018
Page 22 of 97
600454/2005 NOTICE OF MOTION TO DISMISS
NYSCEF DOC. NO. 401 RECEIVED NYSCEF: 01/06/2022

primarily in a foreign jurisdiction. See Pahlavi. 62 N. Y.2d at 479,478 N.Y.S.2d at 600. Application

of these factors to the case at bar mandates dismissal of the Complaint.

None of the causes of action in the Complaint arise out of any business activity

conducted by the parties in New York. Indeed, the Letter of Intent - the document out of wh

Case Info

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Andrew Borrok Track Judge’s New Case

Case No.

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Document Filed Date

January 06, 2022

Case Filing Date

May 11, 2018

County

Parties

AKIN GUMP STRAUSS HAUER & FELD LLP Attorney for the Defendant
ASCHER, STEPHEN L Attorney for the Plaintiff
BALDINI, STEPHEN M Attorney for the Defendant
CRESCO LABS LLC, an Illinois limited liability company Plaintiff
Cresco Labs New York, LLC, a New York limited liability company Plaintiff
Eric Sirota Defendant
FEDORNAK, MELISSA TAKARA Attorney for the Plaintiff
FELDMAN, STEPHANIE R Attorney for the Defendant
Fiorello Pharmaceuticals, Inc., a New York corporation Defendant
HIPP, JASON PORTWOOD Attorney for the Plaintiff
IZOWER-FADDE, RACHEL LOIS Attorney for the Defendant
IZOWER-FADDE, RACHEL LOIS Attorney for the Defendants
Izower Feldman, LLP Attorney for the Defendant
IZOWER LEFTON, LLP Attorney for the Defendant
JOHN DOES 1 - 10 Defendant
LEFTON, RONALD DANIEL Attorney for the Defendant
MARKOU, POPPY ELIZABETH Attorney for the Defendant
MARKOU, POPPY ELIZABETH Attorney for the Defendants
Re, John C. Attorney for the Plaintiff
Susan Yoss Defendant
VILLASANA, DENNIS MICHAEL Attorney for the Defendant
BENJAMIN RAH Attorneys for Plaintiffs
FRED WEINSTEIN Attorneys for Plaintiffs
JEROME LEVY Attorney
RICHARD ZAHNLEUTER Attorney
ARIELLE KANE Attorney
MICHAEL HELSEL Attorney
JOSEPH LUCOSKY Attorney
Jason P.Hipp Attorney
KATHERINE LIU Attorney
HOWARD GODNICK Attorneys for Defendants
DINA WEINSTEIN Attorney
DAVID WEINSTEIN Attorney
HAROLD RICHMAN Attorney
KATHERINE LEE Attorney
JASON RIEGERT Attorney
Michael Bass Attorney
NANCY RICHMAN Attorneys for Plaintiffs
MICHAEL BASS Attorney
LYNN SHAFRAN Attorney
JOSEPH HEPPT Attorney
MARK CASH Attorney
ERICA HOLLAND Attorneys for Defendants

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Motion,Ex Parte: Cresco Labs New York, Llc, a New York limited liability company, Cresco Labs Llc, An Illinois Limited Liability Company v. Fiorello Pharmaceuticals, Inc., a New York corporation, Eric Sirota, Susan Yoss, John Does 1 - 10

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