Elmore et al v. Acre Beyond the Rye, LLC et al

Filing 33

Memorandum Opinion and Order Granting Defendant Barry Bernstein's Motion to Dismiss 28 . Signed by District Judge Halil S. Ozerden on August 29, 2017. (BGL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ROBERT ELMORE, et al.

PLAINTIFFS

v.

CIVIL NO. 3:16cv296-HSO-JCG

ACRE BEYOND THE RYE, LLC, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT BARRY BERNSTEIN’S MOTION TO DISMISS [28]
THIS MATTER IS BEFORE THE COURT on Defendant Barry Bernstein’s
Motion to Dismiss [28] filed January 30, 2017. Plaintiffs Robert Elmore, Jeremy
Christopher, Ted Dibiase, Jr., Nicholas Coughlin, and Dofflin, LLC d/b/a Dofflin
Media Group, Dofflin Management, LLC, and Dofflin Strategies filed a Response
[31] on February 27, 2017. The time for Defendant Barry Bernstein to file a reply
has passed. After review of the Motion, the record, and relevant legal authority, the
Court finds that it lacks personal jurisdiction over Defendant Barry Bernstein and
his Motion to Dismiss should be granted.
I. BACKGROUND
A.

Facts and Procedural History
This matter arises out of a financial dispute between Plaintiffs Robert

Elmore, Jeremy Christopher, Ted Dibiase, Jr., Nicholas Coughlin, and Dofflin, LLC
d/b/a Dofflin Media Group, Dofflin Management, LLC, and Dofflin Strategies
(“Plaintiffs”) and Defendants Acre Beyond The Rye, LLC, Lyle Howry, Richard
Craig Manley, Barry Bernstein, and Andre Gordon, Individually, and as Owners of

Acre Beyond The Rye, LLC, Skinfly Entertainment, Lyle Howry, Individually, and
as the Owner of Skinfly Entertainment, Cineview 3d Studios, LLC, Chris Dotson,
Individually, and as the Manager of Cineview 3d Studios, LLC, and John Does 1-10
(“Defendants”) over an attempt to produce a motion picture titled “Acre Beyond the
Rye” (the “Movie”), in Mississippi in 2015. Compl. [1] at 2-3.1
Plaintiffs’ Complaint alleges that on July 26, 2015, actor James Caan and
Defendants Andre Gordon (“Gordon”) and Richard Manly (“Manly”) met with
Plaintiff Ted DiBiase, Jr. (“DiBiase”) to discuss the Movie and to request that
DiBiase introduce them to “residents of Mississippi who could provide short term
loans to allow [t]he Movie to begin production and/or filming, as one of the original
investors, Defendant Barry Bernstein, was wavering in his commitment to fund
[t]he Movie.” Id. at 8. On July 27, 2015, a meeting was held at the office of Plaintiff
Dofflin, LLC d/b/a Dofflin Media Group, Dofflin Management, LLC, and Dofflin
Strategies (“Dofflin”) between Plaintiffs Nicholas Coughlin (“Coughlin”) and
DiBiase, and Defendants Lyle Howry (“Howry”), Gordon, Manley, and Chris Dotson
(“Dotson), who participated via telephone. Jeff Ross, the producer of the Movie, also
attended the meeting. Id. at 8-9.
The Complaint alleges that during this July 27, 2015, meeting Defendants
provided DiBiase, Coughlin, and Dofflin with the following:

On January 25, 2017, Defendants Lyle Howry, Richard Craig Manley, Andre
Gordon, Skinfly Entertainment, and Chris Dotson were dismissed without prejudice
because Plaintiffs failed to timely perfect service of process upon them pursuant to
Federal Rule of Civil Procedure 4(m). Order [27] at 1-2.
1

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(a) written and/or oral assurances, promises, and/or guarantees that
Defendant Barry Bernstein had previously provided a written
guarantee for funding of The Movie up to $3,000,000.00;
(b) written and/or oral assurances, promises, and/or guarantees that
Defendant Chris Dotson would fund The Movie up to $5,000,000.00;
(c) production of a letter from Wells Fargo Bank of the ability of
Defendant Dotson “to procure funds up to $5,000,000 for the purpose to
fund the film – Acre Beyond the Rye.” (Please see Wells Fargo Letter,
attached as Exhibit 1);
(d) documentation of The Movie’s status as a project approved to move
forward in the State of Mississippi, which would entitle The Movie and
its producers to rebates up to $545,000.00 for money spent in Mississippi
on The Movie (Please see Certificate, attached as Exhibit 2);
(e) that The Movie was fully insured; and
(f) other documentation concerning The Movie, its producers, the
Movie’s investor(s), and other business records demonstrating that the
Movie was a legitimate, viable, and secure venture (Please see the
Louisiana Secretary of State Documents and Articles of Organization
regarding Acre Beyond the Rye, LLC, attached as Exhibit 3).
Id. at 9-10.
Based upon these alleged “written and oral assurances,” Elmore and
Christopher, neither of whom attended the meeting, allege that they each provided
a short-term loan from July 27, 2015, to August 5, 2015, in the amount of
$140,000.00 for a total of $280,000.00,2 and further that DiBiase, Coughlin, and

Elmore and Christopher claim that they each provided a short-term loan in the
amount of $140,000.00, for a total of $280,000.00, but have only received one joint
payment of $32,110.28 in return. Compl. [1] at 14-15; Promissory Notes [1-5] [1-6].
The Complaint also states that prior to Elmore and Christopher’s execution of their
Notes, Christopher contacted Wells Fargo Bank to confirm the legitimacy of the
correspondence from its Vice President Marin M. Marine to Jeffery Ross, Stellaris

2

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Dofflin each supplied services to Acre Beyond the Rye, LLC. Id. at 10-14. Plaintiffs’
investment of time and money allowed the production and filming of the Movie to
commence on July 29, 2015, in Madison County, Mississippi. Id. At some point the
funds ran out and production and filming were halted.
The Complaint alleges that Defendant Acre Beyond the Rye, LLC, a
Louisiana limited liability company, “was and remains to be the company
responsible for the approval, funding, production, management, operation, and
filming of the motion picture Acre Beyond the Rye.”3 Compl. [1] at 2-3 (emphasis in
original). The members of Acre Beyond the Rye, LLC, are identified as Defendant
Howry (Manager, Member), Defendant Manley (Member), and Defendant Barry
Bernstein (Member). Compl. Ex. 3 [1-3] at 4-5. Plaintiffs claim that all Defendants
were “were owners, managers, masters and servants, principals and agents and/or
employers and employees for the motion picture Acre Beyond the Rye.” Compl. [1]
at 7 (emphasis in original).
The Complaint further asserts that all Defendants breached oral and written
contracts because they failed to compensate DiBiase, Coughlin, and Dofflin for their
services and failed to fully repay the short-term loans made by Elmore and

Films, indicating that Defendant Dotson could “procure up to $5,000,000.00 to fund
The Movie.” Id. at 12; Ex. [1-1] at 1.
According to the Mississippi Secretary of State’s website, Acre Beyond the Rye,
LLC, registered to do business in the State of Mississippi on July 9, 2015.

3

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Christopher. Id. at 14-15. Plaintiffs maintain that their collective damages are “in
excess of $500,000.00 as a result of the Defendants’ actions.” Id. at 14.
Plaintiffs advance claims against Defendants, jointly and severally, for: (1)
Breach of Contract as to Plaintiffs Elmore and Christopher; (2) Breach of Contract
as to Plaintiffs DiBiase, Coughlin, and Dofflin; (3) Bad Faith and Tortious Breach of
Contract as to Plaintiffs Elmore and Christopher; (4) Bad Faith and Tortious
Breach of Contract as to Plaintiffs DiBiase, Coughlin, and Dofflin; (5) Breach of
Duties of Good Faith and Fair Dealing; (6) Negligent Misrepresentation; (7)
Fraudulent Misrepresentation; (8) Promissory Estoppel; (9) Equitable Estoppel; (10)
Negligence; (11) Negligent Infliction of Emotional Distress; (12) Outrage; (13)
Tortious Interference with Business Relations; (14) Unjust Enrichment; and (15)
Punitive Damages. Id. at 14-24.
B.

Defendant Barry Bernstein’s Motion to Dismiss [28]
On January 30, 2017, Defendant Barry Bernstein (“Bernstein”) filed a Motion

to Dismiss [28] pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of
personal jurisdiction or, alternatively, pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted. Mot. [28] at 1-2. Bernstein contends that
the Complaint fails to identify a factual basis “which would support any Court in
Mississippi exercising in personam jurisdiction over Bernstein,” and that as an
individual member of Acre Beyond the Rye, LLC, he is not a proper party to an
action against Acre Beyond the Rye, LLC. Id.

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Plaintiffs’ Response [31] maintains that Bernstein is a proper party because
he “may be held liable for the acts of his agents and employees, including the acts or
omissions committed by Defendants Howry, Manley, and Gordon.” Resp. in Opp’n
[31] at 1. Plaintiffs posit that Bernstein is subject to jurisdiction in the State of
Mississippi pursuant to Mississippi’s long-arm statute, Mississippi Code Annotated
§13-3-57, because “Bernstein, his agents, partners, employees, and/or his company”
entered into contracts, committed torts, and conducted business in the State of
Mississippi. Mem. in Opp’n [32] at 6.
II. DISCUSSION
A.

Legal Standard
“Where a court finds it lacks personal jurisdiction, it may dismiss the action

pursuant to Federal Rule of Civil Procedure 12(b)(2).” Herman v. Cataphora, Inc.,
730 F.3d 460, 466 (5th Cir. 2013). “[T]he party seeking to invoke the power of the
court . . . bears the burden of establishing jurisdiction but is required to present
only prima facie evidence.” Pervasive Software, Inc. v. Lexware GMBH & Co. KG,
688 F.3d 214, 219 (5th Cir. 2012) (quotation omitted). “In determining whether a
prima facie case exists, this Court must accept as true [the Plaintiff’s]
uncontroverted allegations, and resolve in [its] favor all conflicts between the
[jurisdictional] facts contained in the parties’ affidavits and other documentation.”
Id. at 219-20. In cases arising under diversity of citizenship jurisdiction, the
exercise of personal jurisdiction over a non-resident defendant is limited by the
forum state’s long-arm statute and the Due Process Clause of the Fourteenth

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Amendment. Mullins v. TestAmerica, Inc., 564 F.3d 386, 398 (5th Cir. 2009). If
Mississippi law does not support the exercise of personal jurisdiction, the Court
need not reach the due process issue. Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612,
621 (5th Cir. 1989).
B.

The Mississippi Long-Arm Statute
Federal Rule of Civil Procedure 4(k)(1)(A) confers personal jurisdiction over

any defendant who would be subject to personal jurisdiction under the long-arm
statute of the state in which the district court sits. The Mississippi long-arm
statute provides, in relevant part, as follows:
Any nonresident person, firm, general or limited partnership, or
any foreign or other corporation not qualified under the Constitution
and laws of this state as to doing business herein, who shall make a
contract with a resident of this state to be performed in whole or in part
by any party in this state, or who shall commit a tort in whole or in part
in this state against a resident or nonresident of this state, or who shall
do any business or perform any character of work or service in this state,
shall by such act or acts be deemed to be doing business in Mississippi
and shall thereby be subjected to the jurisdiction of the courts of this
state.
Miss. Code Ann. § 13-3-57. Mississippi courts interpret this statute as authorizing
“three activities” which will permit Mississippi courts to exercise
personal jurisdiction over a nonresident defendant: “(1) if that person
has entered into a contract to be performed in Mississippi; (2) has
committed a tort in Mississippi; or, (3) is conducting business in
Mississippi.”
Dunn v. Yager, 58 So. 3d 1171, 1184 (Miss. 2011) (quoting Yatham v. Young, 912 So.
2d 467, 469-70 (Miss. 2005)); see also Miss. Code § 13-3-57. The three prongs of
Mississippi’s long-arm statute are commonly referred to as “the contract prong, the

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tort prong, and the doing-business prong.” ITL Int'l, Inc. v. Constenla, S.A., 669
F.3d 493, 497 (5th Cir. 2012).
C.

The Fourteenth Amendment Due Process Clause
If a state’s long-arm statute “encompasses the defendant’s activity for

purposes of the suit, the plaintiff must also ensure that the state’s exercise of
personal jurisdiction over a defendant would be permissible under the Fourteenth
Amendment.” Tellus Operating Group, LLC v. R&D Pipe Co., 377 F. Supp. 2d 604,
607 (S.D. Miss. 2005). “The Due Process Clause of the Fourteenth Amendment
constrains a State’s authority to bind a nonresident defendant to a judgment of its
courts.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (citing World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)). A nonresident defendant’s
physical presence within the territorial jurisdiction of a court is not required. Id.
However, a plaintiff must show that a defendant has “certain minimum contacts
with [Mississippi] such that maintenance of the suit does not offend the traditional
notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945) (quotation omitted).
Personal jurisdiction may be general or specific. ITL Int'l, Inc., 669 F.3d at
498. General jurisdiction exists where the defendant has maintained “continuous
and systematic” contacts with the forum state, and a court may exercise jurisdiction
over any action brought against the defendant in that state. Helicopteros
Nacionales de Colombia v. Hall, 466 U.S. 408, 415-16 (1984). Specific jurisdiction is
claim-specific. Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274 (5th Cir.

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2006). “If a defendant does not have enough contacts to justify the exercise of
general jurisdiction, the Due Process Clause prohibits the exercise of jurisdiction
over any claim that does not arise out of or result from the defendant’s forum
contacts.” Id. at 275.
D.

Bernstein’s Rule 12(b) Motion should be granted because Plaintiffs have not
made out a prima facia case that Bernstein is amenable to suit under
Mississippi’s long-arm statute.
Plaintiffs do not dispute that Bernstein is not a resident of the State of

Mississippi, thus Bernstein must be amenable to suit under the Mississippi longarm statute in order for the Court to have personal jurisdiction over him.
Bernstein’s Motion argues Plaintiffs have not and cannot establish that he is
subject to Mississippi’s long-arm statute because he has never been to Mississippi,
has never entered into a contract to be executed in whole or part in Mississippi, and
has never conducted business in Mississippi.
Plaintiffs respond that Bernstein is subject to the Mississippi long-arm
statute under all three prongs due to his acts or omission or those of his “agents,”
and that “the acts and/or omissions giving rise to the claims against Defendants are
thoroughly set forth in Plaintiffs’ Complaint and are supported by uncontested facts
and exhibits.” Mem. in Opp’n [32] at 6, 9.
The relevant jurisdictional facts set forth in the Complaint appear sufficient
to establish that Defendants Bernstein, Howry, and Manley are the members of a
Louisiana limited liability company named Acre Beyond the Rye, LLC, which filed a
charter and qualified to do business in Louisiana on May 11, 2015. Thereafter, it

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appears that Acre Beyond the Rye, LLC, which is itself named as a Defendant in
this case, registered to do business in Mississippi, entered into contracts with
Mississippi residents, and conducted business in Mississippi by initiating the
filming of the Movie.
Plaintiffs also allege that Defendants, other than Bernstein, met with some of
them in Mississippi to discuss the production and financing of the Movie and that
filming of the Movie actually began in Mississippi.
The documents attached to the Complaint include:











Exhibit “1” – an undated letter from Marin M. Maine, Assistant VicePresident – Business Relations Manager, Wells Fargo to Jeffery Ross,
Stellaris Films, providing that Chris Dotson has the ability to “procure
funds up to $5,000,000 for the purpose to fund the film – Acre Beyond
the Rye,” [1-1] at 1;
Exhibit “2” – includes a July 23, 2015, letter from Ward Emling,
Manager, Mississippi Film Office, Mississippi Development Authority
to Alan Steinman, The Acre Beyond the Rye, LLC, confirming the
approval of the “Rebate Amendment of The Acre Beyond the Rye for
eligibility under the Mississippi Motion Picture Incentive Act” and the
May 20, 2015, “ORDER OF THE MISSISSIPPI DEVELOPMENT
AUTHORITY CERTIFYING The Acre Beyond the Rye UNDER THE
MOTION PICTURE INCENTIVE ACT,” [1-2] at 1-2;
Exhibit “3” – includes documents from the Louisiana Secretary of State
certifying that as of May 11, 2015, Acre Beyond the Rye, LLC, was
successfully registered as a Louisiana limited liability company whose
members were Lyle Howry (Manager, Member), Richard Craig Manly
(Member), and Barry Allen Bernstein (Member), [1-3] at 1-5;
Exhibit “4” – includes emails by and between Lyle Howry, Jeff Ross, and
[e-mail], [1-4] at 1-3;
Exhibit “5” - Promissory Note reflecting a loan in the principal amount
of $140,000.00 from Robert T. Elmore to Acre Beyond the Rye, LLC,
executed on July 27, 2015, by Elmore and Lyle Howry as Managing
Member Acre Beyond the Rye, LLC, [1-5] at 1;
Exhibit “6” – Promissory Note reflecting a loan in the principal amount
of $140,000.00 from Jeremy Christopher to Acre Beyond the Rye, LLC,

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


executed on July 27, 2015, by Christopher and Lyle Howry as Managing
Member Acre Beyond the Rye, LLC, [1-6] at 1;
Exhibit “7” – Personal Guarantee executed by Lyle Howry (owner of
Skinfly Entertainment) to Jeremy Christopher guaranteeing the
repayment of the July 27, 2017, loan, [1-7] at 1; and
Exhibit “8” – AGREEMENT executed by Lyle Howry as managing
member of Acre Beyond the Rye, LLC, on January 21, 2016, that Acre
Beyond the Rye, LLC, would fully satisfy the loans made by Elmore and
Christopher, [1-8] at 1.
Plaintiffs’ Memorandum in Opposition also included:




Exhibit “1” – a copy of a check from the State of Mississippi to payee
The Acre Beyond the Rye, LLC, in the amount of $32,110.28, [32-1] at
1; and
Exhibit “2” – various web posting for a business in California titled
“Bernstein, Samuels & Company, LLP,” [32-2] at 1-5.
Assuming without deciding that Plaintiffs have proffered sufficient

jurisdictional facts to establish that Acre Beyond the Rye, LLC, is subject
jurisdiction in Mississippi under its long-arm statute, these facts are not sufficient
by themselves to establish that Bernstein, as an individual, is likewise subject to
personal jurisdiction. “Each defendant’s contacts with the forum State must be
assessed individually.” Smith v. Antler Insanity, LLC, 58 F. Supp. 3d 716, 722 (S.D.
Miss. 2014) (quoting Calder v. Jones, 465 U.S. 783, 790 (1984)); see also Evergreen
Media Holdings, LLC v. Safron Co., 68 F. Supp. 3d 664, 671 (S.D. Tex. 2014)
(“Personal jurisdiction must be determined on an individual basis for each
defendant.”) (citing Rush v. Savchuk, 444 U.S. 320, 332 (1980)). Thus it is a
separate question whether Bernstein, individually, separate and apart from Acre
Beyond the Rye, LLC, as a corporate entity, has committed acts sufficient to make
him subject to personal jurisdiction under Mississippi’s long-arm statute.

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Plaintiffs’ Complaint lacks any reference to a contract or other document
signed by Bernstein himself and does not identify any jurisdictional facts or
evidence that Bernstein individually made any representation to any Plaintiff, or
was ever present in Mississippi when any other Defendant made a representation
or misrepresentation to any Plaintiff. See Grand Legacy, LLP v. Grant, 66 So. 3d
137, 145-47 (Miss. 2011). There is simply no factual evidence that Bernstein
himself entered into any “written or oral contract” with any Plaintiff in the State of
Mississippi, that Bernstein committed a tort in the State of Mississippi, that
Bernstein conducted any business in the State of Mississippi, or that he was ever
physically present in Mississippi. The factual allegations contained in Plaintiffs’
Complaint and facts in the Exhibits, viewed in the light most favorable to Plaintiffs,
are insufficient to sustain Plaintiffs’ burden of stating a prima facia case that
Bernstein is amenable to suit under Mississippi’s long-arm statute.
Given the forgoing, the Court is of the view that personal jurisdiction over
Bernstein would be inappropriate under the Mississippi long-arm statute. Since
Mississippi law does not support the exercise of personal jurisdiction, the Court
need not reach the due process analysis. Cycles, Ltd., 889 F.2d at 616.
2.

Plaintiffs’ assertion that Defendants Howry, Manley, Dotson, and/or
Gordon were acting as agents of Bernstein is not supported by the
factual allegations in the Complaint or by the Exhibits.

The Complaint alleges generally that all Defendants were “were owners,
managers, masters and servants, principals and agents and/or employers and
employees for the motion picture Acre Beyond the Rye.” Compl. [1] at 7 (emphasis

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in original). Plaintiffs’ Response posits that Bernstein was the “principal” of Acre
Beyond the Rye, LLC, and is therefore bound by the actions of his “agents and
employees,” Defendants Howry and Manley, who are the other two individual
members of Acre Beyond the Rye, LLC, and by those of Defendants Gordon and
Dotson. Resp. in Opp’n [31] at 1.
Plaintiffs have not set forth any, let alone sufficient, facts to support their
allegation that Bernstein was the principal of Acre Beyond the Rye, LLC, or that
other Defendants were authorized to act, or were acting, as agents of Bernstein.
Assuming without deciding that Plaintiffs may have stated a sufficient factual basis
to support an argument that the other Defendants could have been acting as agents
of Acre Beyond the Rye, LLC, this alone does not establish that Defendants were
authorized by Bernstein to act as his agents.
The Court is not required to accept Plaintiffs’ conclusory allegation that the
other Defendants were acting as Bernstein’s agents because at this stage only nonconclusional factual allegations must be resolved in a plaintiff’s favor. Panda
Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 868 (5th Cir. 2001);
Tellus Operating Grp., LLC, 377 F. Supp. 2d at 606 (finding that the caveat exists
that although a court must accept the allegations in a complaint as true, a court is
not required to credit conclusory allegations, even if uncontroverted).

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In Mississippi, “[t]he existence and scope of an actual agency relationship is a
question of fact.”4 Gross v. GGNSC Southaven, LLC, 817 F.3d 169, 180 (5th Cir.
2016) (citing Engle Acoustic & Tile, Inc. v. Grenfell, 223 So. 2d 613, 617-18 (Miss.
1969)). “The burden of proving an agency relationship is on the party asserting it.”
Cooper Indus., Inc. v. Tarmac Roofing Sys., 276 F.3d 704, 708 (5th Cir. 2002)
(quoting Booker v. Pettey, 770 So. 2d 39, 45 (Miss. 2000)).
We have previously noted that under Mississippi law, “an agency
relationship may be express or de facto. A de facto agency may be proven
by the presence of three elements at the time of contracting: (1)
‘manifestation by the alleged principal, either by words or conduct, that
the alleged agent is employed as such by the principal,’ (2) ‘the agent’s
acceptance of the arrangement,’ and (3) ‘the parties understood that the
principal will control the undertaking.’” Stripling v. Jordan Prod. Co.,
234 F.3d 863, 870 (5th Cir. 2000) (quoting Forest Oil Corp. v. Tenneco,
Inc., 626 F. Supp. 917, 921 (S.D. Miss. 1986)).
Id. at 709.
Plaintiffs have not alleged any facts that Bernstein, acting in his individual
capacity, granted any other Defendant the express authority to act as his personal
agent. Likewise, Plaintiffs have not shown any instance when Bernstein, through
words or conduct, informed Plaintiffs that any other Defendant was acting as his
agent or employee. Plaintiffs did not allege that they ever spoke with Bernstein and
they have not produced any document executed by Bernstein that would imply he
granted any other Defendant the authority to act as his agent.

Plaintiffs’ Memorandum in Opposition [32] relies upon Mississippi agency law.
Assuming without deciding that Plaintiffs’ choice of law is appropriate, the Court
analyzes the agency issue utilizing Mississippi agency law because Bernstein has
not objected to Plaintiffs’ reliance on Mississippi law on this point.

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In their Memorandum in Opposition, Plaintiffs allege that Bernstein “created
a company and registered it in Mississippi,” Mem. in Opp’n [32] at 6, and then
argue that Bernstein is the principal of this company such that the other
Defendants were acting as his employees or agents. This position is contradicted by
the facts alleged in the Complaint as well as the facts reflected in the Exhibits,
which clearly establish that Arce Beyond the Rye, LLC, was created as a threemember limited liability company with Bernstein being identified as merely one of
the members.5
The credible factual allegations and evidence before the Court, even if true,
are insufficient to carry Plaintiffs’ burden of establishing that Bernstein authorized
any other Defendant to act as his agent in this matter.
3.

Bernstein’s Rule 12(b)(6) need not be addressed.

Because personal jurisdiction does not lie against Bernstein, individually, the
Court need not resolve Bernstein’s Rule 12(b)(6) argument. See Pervasive Software
Inc., 688 F.3d at 231-32.
III. CONCLUSION
Defendant Barry Bernstein’s Motion to Dismiss [28] will be granted pursuant
to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, and
Plaintiffs’ claims against Bernstein will be dismissed without prejudice.

The Court notes that the Complaint alleges that Defendants, other than
Bernstein, were seeking additional funding because “one of the original investors,
Defendant Barry Bernstein was wavering in his commitment to fund The Movie.”
Compl. [1] at 8.
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IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant
Barry Bernstein’s Motion to Dismiss [28] filed January 30, 2017, is GRANTED,
and Plaintiffs Robert Elmore, Jeremy Christopher, Ted Dibiase, Jr., Nicholas
Coughlin, and Dofflin, LLC d/b/a Dofflin Media Group, Dofflin Management, LLC,
and Dofflin Strategies’ claims against Defendant Barry Bernstein are DISMISSED
WITHOUT PREJUDICE for lack of personal jurisdiction.
IT IS, FURTHER, ORDERED AND ADJUDGED that the stay entered in
this case on February 2, 2017, is hereby lifted, and the parties are directed to
contact the Magistrate Judge no later than September 11, 2017, to schedule a Case
Management Conference.
SO ORDERED this the 29th day of August, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE 

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