Motion to Dismiss in Iruka Capital Group Llc v. Jr& B Associates Llc D/B/A Jr&B Associates, Randall L Simms| Trellis.Law

On May 04, 2022 a Motion-Secondary was filed involving a dispute between Iruka Capital Group Llc, and Jr& B Associates Llc D B A Jr&B Associates, Randall L Simms, for Other Matters - Contract - Other in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 01/25/2023 12:43 PM INDEX NO. 512933/2022
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/25/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS

IRUKA CAPITAL GROUP LLC,
Index No.: 512933/2022
Plaintiff,

-against-

JR&B ASSOCIATES LLC
d/b/a JR&B ASSOCIATES, AND
RANDALL L SIMMS,

Defendants.

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Zachter PLLC
30 Wall Street, 8th Floor
New York, NY 10005
(646) 779-3294

On the Brief:
Jeffrey Zachter, Esq.

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Plaintiff, IRUKA CAPITAL GROUP LLC (“Plaintiff”), by its attorneys, Zachter PLLC,

hereby submits this Memorandum of Law in Opposition to Defendants, JR&B ASSOCIATES

LLC d/b/a JR&B ASSOCIATES (“Company Defendant”) and Randall L Simms (“Guarantor”)

(Company Defendant and Guarantor shall be collectively known herein as, “Defendants”)

Motion to Dismiss (“Motion”).

PREMLIMINARY STATEMENT

Defendants’ Motion, pursuant to CPLR § 3211(a)(2), (a)(8), and (f), is contradicted by

documentary evidence proving the Court has jurisdiction over the instant action. Defendants

consented to the jurisdiction of the State of New York, consented to service by USPS certified

mail, and also consented to any court sitting in the State of New York as an acceptable forum

for any litigation arising out of the Agreement. As such, Defendants’ Motion should be denied

in its entirety.

On or about July 28, 2021, Plaintiff and Defendants entered into the first of two

agreements (“Agreement 1”) whereby Plaintiff agreed to buy all rights of Company

Defendant’s future receivables. Plaintiff funded the Agreement having a face value of

$279,800.00. The purchase amount for those receivables was $200,000.00 (see Exhibit A).

Pursuant to the Guaranty of the Agreement, Guarantor consented to guaranty Company

Defendant’s performance under the Agreement.

Pursuant to Section 43 of the Agreement, Defendants consented to the following:

Purchaser may serve Seller with legal process for any Dispute via certified mail
by mailing same to Seller’s address set forth herein or Seller’s current or last
known address at the time of suit, and upon suchmailing, service shall be
proper irrespective of whether a signed certified mail return receipt is retuned
to Purchaser.

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As decsribed below, it is well-settled in the Appellate Division of New York Courts

that parties can contractually waive service of process. Thus, on May 4, 2022, Plaintiff

properly served Defendants with a copy of the Summons and Complaint and service was

deemed properly effuctuated, pursuant to the Agreement. As such, Defendants Motion,

pursuant to CPLR § 3211(a)(8) should be denied.

Moreover, New York Courts have held time and time again, forum selection clauses

within contracts are prima facie enforceable unless the resisting party can prove they are

entitled to the exceptions. A resisting party must make a clear and concise showing that

enforcement of the clause is unreasonable, unjust, in contravention of public policy, invalid

due to fraud or overreaching, or that 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.

Here, Defendants have failed to make an attempt at showing this contract should fall under

one of the above exceptions to the standard. Therefore, Defendants argument must fail and

their motion to dismiss be denied in its entirety.

Thus, the arguments presented in Defendants’ Motion are wholly without merit and

are insufficient, as a matter of law, to dismiss Plaintiff’s Complaint.

Accordingly, Defendants’ Motion should be denied in its entirety.

ARGUMENT

POINT I
THIS COURT HAS JURISDICTION OVER DEFENDANTS

Parties to a contract are free to contractually waive service of process. Pohlers v

Exeter Mfg. Co., 293 NY 274, 279 (1944); Alfred E. Mann Living Tr. v ETIRC Aviation S.a.r.l.,

78 AD3d 137, 140 (1st Dept 2010); National Equip. Rental v. DecWood Corp., 51 Misc.2d 999,

274 N.Y.S.2d 280 [2nd Dept. 1966]; see generally, 86 N.Y. Jur. 2d, Process and Papers § 7. The

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bald denial of receipt of process served by mail is insufficient to rebut the inference of proper

mailing which may be drawn from a duly executed affidavit of service. European Am. Bank

v. Abramoff, 201 A.D.2d 611, 612, 608 N.Y.S.2d 233, 234 [2nd Dept. 1994].

"Ordinarily a court can acquire jurisdiction of the person of a defendant only by

service of process within the jurisdiction of the court; but that rule does not apply where the

defendant has agreed in advance to accept, or does in fact accept, some other form of service

as sufficient'" (Pohlers v Exeter Mfg. Co., 293 NY 274, 279, 56 N.E.2d 582, quoting Wilson v

Seligman, 144 US 41, 44, 12 S. Ct. 541, 36 L. Ed. 338). "This consent may be given either

before or after [an] action has been brought" (Gilbert v Burnstine, 255 NY 348, 355, 174 N.E.

706). "To be effective, the consent must be given by a person who is under no legal incapacity,

and jurisdiction must be exercised in strict conformity with the terms of the consent"

(Restatement [Second] of Conflict of Laws § 32). Under those circumstances, it is a

defendant's consent, as opposed to a defendant's relationship with the territorial

jurisdiction, "which imparts power" (Gilbert v Burnstine, 255 NY at 355; see Matter of

Bauer [Motor Veh. Acc. Indem. Corp.], 31 AD2d 239, 241, 296 N.Y.S.2d 675; National Equip.

Rental v Dec-Wood Corp., 51 Misc 2d 999, 1000, 274 N.Y.S.2d 280; see also Restatement

[Second] of Conflict of Laws § 27[1][e]; Restatement [Second] of Judgments § 5). Matter of

New Brunswick Theological Seminary v. Van Dyke, 2020 NY Slip Op 03114, ¶ 1, 184 A.D.3d

176, 179, 125 N.Y.S.3d 153, 157 (App. Div. 2nd Dept.)

Section 43 of the Agreement states, in part:

43. Governing Law, Venue and Jurisdiction. Purchaser may serve Seller
with legal process for any Dispute via certified mail by mailing same to
Seller’s address set forth herein or Seller’s current or last known address at
the time of suit, and upon such mailing, service shall be proper irrespective
of whether a signed certified mail return receipt is retuned to Purchaser.

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As such, pursuant to Section 43 of the Agreement, Defendants consented to waive

personal service of any summons and/or complaint. Moreover, Defendants consented to

service of process by certified mail to the address set forth in the Agreement. Thus, on May

4, 2022, after Plaintiff mailed the Summons and Complaint to Defendants via USPS certified

mail-return receipt requested, service of process of the Summons and Complaint was

deemed properly effectuated (see Exhibit A and F). Pursuant to the case law cited above,

Defendants consented to the jurisdiction of the State of New York, and therefore, Defendants’

territorial relationship with New York is of no consequence. Defendants’ contractual consent

to the jurisdiction of New York imparts that power upon the courts sitting within the state,

and as such, Defendants arguments are utterly without merit.

Accordingly, Defendants’ Motion, pursuant to CPLR §3211(a)(8), should be denied in

its entirety.

POINT II
VENUE IS PROPER

As stated in Section 43 of the Agreement, the governing law and venue would be

proper in any court in New York. British West Indies Guar. Trust Co., Ltd. v. Bangue

Internationale a Luxembourg, 172 A.D.2d 234, 567 N.Y.S.2d 731 (1st Dept. 1991); National

Union Fire Ins. Co. of Pittsburgh. Pa. v. Worley, 257 A.D.2d 228, 690 N.Y.S.2d 57 (1st Dept.

1999); Bristol Inv. Fund Ltd. v. ID Confirm, Inc., 2008 NY Slip Op 30128(U) (Sup. Ct.).

Section 43 of the Agreement states, in part:

This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. Seller consents to the jurisdiction of the federal
and state courts located in the State of New York, including but not limited to
the County of Kings and agrees that (subject to Section 49 of this Agreement)
such courts shall be the exclusive forum for all actions, proceedings or
litigation arising out of or relating to this Agreement or subject matter thereof
("Dispute"), notwithstanding that other courts may have jurisdiction over the

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parties and the subject matter, and the parties waive any forum non
conveniens or other objection to such jurisdiction and venue.

Forum selection clauses in contracts are prima facie valid and enforceable unless the

resisting party demonstrates that enforcement of the clause is unreasonable, unjust, in

contravention of public policy, invalid due to fraud or overreaching, or that 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. Brooke Group v. JCH Syndicate 488, 87 N.Y.2d 530,

534, 663 N.E.2d 635, 640 N.Y.S.2d 479 (1996); Sterling Nat. Bank as Assignee of

NorVergence, Inc. v. Eastern Shipping Worldwide, Inc., 35 A.D.3d 222, 826 N.Y.S.2d 235 (1st

Dept. 2006). Such clauses are enforced because they provide certainty and predictability in

the resolution of disputes. Id.

Defendants cite to General Obligations Law 5-1402 for the basis of their argument

that Plaintiff cannot maintain action in the State of New York; however, General Obligations

Law 5-1402(2) states, “Nothing contained in this section shall be construed to affect the

enforcement of any provision respecting choice of forum in any other contract, agreement

or undertaking.” Thus, Defendants argument pursuant to General Obligations Law 5-

1402(2) is invalidated as there is an enforceable Agreement with a valid forum selection

clause.

Accordingly, Defendants’ Motion, pursuant to General Obligations Law 5-1402 should

be denied in its entirety.

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POINT III
DEFENDANTS EXTENSION OF TIME TO ANSWER SHOULD BE IN STRICT COMPLIANCE
WITH THE CPLR

CPLR §3211(f) states:

Extension of time to plead. Service of a notice of motion under subdivision
(a) or (b) before service of a pleading responsive to the cause of action or
defense sought to be dismissed extends the time to serve the pleading until ten
days after service of notice of entry of the order

CPLR §2004 states:

Except where otherwise expressly prescribed by law, the court may extend the
time fixed by any statute, rule or order for doing any act, upon such terms as
may be just and upon good cause shown, whether the application for extension
is made before or after the expiration of the time fixed.

Pursuant to the above cited case law, Plaintiff respectfully requests, upon the Courts

finding the Defendants’ Motion utterly meritless, the Court require strict compliance with

CPLR§3211(f) and allow Defendants an extension of 10 days from service of notice of entry

to file their answer to Plaintiff’s Complaint.

Moreover, Plaintiff refers to CPLR §2004, which requires good cause shown in order

to stray from strict compliance of CPLR §3211(f). Here, Defendants have failed to provide

this Court with any good cause reasoning upon which the Court could rely in extending

Defendants time to Answer Plaintiff’s complaint by 30 days. Defendants have already had,

by way of filing their motion, more than 5 months to prepare their answer.

As such, Plaintiff respectfully requests the Court deny Defendants Motion and grants

them an extension of just 10 days from service of notice of entry to Answer Plaintiff’s

Complaint as prescribed by the CPLR.

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CONCLUSION

For the above reasons the Defendant’s Motion to Dismiss should be denied in its

entirety, and Plaintiff should be awarded costs and any further relief as to this court may

seem just and proper.

Dated: New York, New York
January 25, 2023
ZACHTER PLLC
Attorneys for Plaintiff

By: _________________________
Jeffrey Zachter, Esq.
30 Wall Street, 8th Floor
New York, NY 10005
(646) 779-3294

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Case Info

Judge

Carolyn E. Wade Track Judge’s New Case

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Document Filed Date

January 25, 2023

Case Filing Date

May 04, 2022

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Motion-Secondary: Iruka Capital Group Llc v. Jr& B Associates Llc D/B/A Jr&B Associates, Randall L Simms

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