Capital Promotions, L.L.C. v. Don King Productions, Inc.

Filing 68

MEMORANDUM AND ORDER re: 39 ORDERED that Defendant Don King Productions, Inc.'s Motion for Summary Judgment [ECF No. 39] is GRANTED.. Signed by District Judge Henry E. Autrey on 1/22/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CAPITAL PROMOTIONS, L.L.C.,
a Limited Liability Company,
Plaintiff,
v.
DON KING PRODUCTIONS, INC.,
Defendant.

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No. 4:10-CV-0048HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant Don King Productions, Inc.’s
(“DKP” hereinafter) Motion for Summary Judgment [ECF No. 39]. Plaintiff Capital
Promotions, L.L.C. (“Capital”) filed a Memorandum in Opposition to DKP’s motion
[ECF No. 45], to which DKP replied [ECF No. 52]. For the reasons set forth below,
DKP’s motion is granted.
Factual Background1
Capital filed this action against DKP on January 12, 2010, alleging intentional
interference with contractual relationships (Count I), fraud (Count III), conspiracy to
interfere with contractual relationships (count V), and prima facie tort (Count VII)
relative to an agreement between DKP and Walter Tyeson Fields (“Fields”) for a

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The Court’s recitation of the facts is drawn form the parties’ statements of material
facts filed in conjunction with Fraternity Defendants’ motion for summary judgment and
Plaintiff’s opposition.

bout between Fields and Ray Lunsford in St. Louis, Missouri, on February 5, 2005
(“St. Louis Fight”). Capital contends that it had a Promotional Rights Agreement
(“PRA”) with Fields, of which DKP was aware, providing Capital with exclusive
rights to promote all fights for Fields. Plaintiff also seeks punitive damages against
DKP (Counts II, IV, VI, and VIII).
Capital and Fields signed a PRA in February 2000. The PRA granted Capital
exclusive rights to schedule fights involving Fields from February 4, 2000 through
February 4, 2005, unless otherwise noted. Pursuant to the terms of the PRA, Capital
was to provide Fields with a minimum of four fights per year during the term of the
PRA. In order for a bout to be arranged under the PRA, the agreement required
Fields and Capital to execute Capital’s customary bout agreement and/or the
standard boxing contract required by the athletic or boxing commission with
jurisdiction over the bout. In September of 2003, Fields fought Sherman Williams
for a purse of $18,000. Although the reasons are disputed, there was an issue with
this check clearing. In December of 2003, Fields fought Julius Long in a fight
promoted by Capital for a purse of $10,000. The check for the purse, tendered by
Capital to Fields, bounced. After the second purse payment from Capital to Fields
bounced, Fields retained counsel to represent him and refused to speak to Capital
directly. Fields testified that as of January of 2004, Fields did not believe that
Capital was his promoter. On January 15, 2004, the law firm of Kolesar and

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Leathem sent a letter to Capital claiming that Capital had breached the PRA with
Fields, and that the PRA was terminated.2
On November 8, 2005, Fields and Capital began a three day arbitration
proceeding administered by the American Arbitration Association (“AAA”). The
proceeding was styled “Walter Tyeson Fields, Claimant, and Capital Promotions,
LLC and Bob Stupak Presents, LLC, Arbitration No. 79 181 00070 05” (the
“Arbitration”). Capital was represented by counsel, it introduced exhibits, it
presented testimony from three witnesses, and cross-examined three other witnesses.
The Arbitrator’s Award stated in part:
Based upon the foregoing, it is the Arbitrator’s decision:
(1)
(2)

(3)
(4)
(5)

CAPITAL take nothing by way of its alleged claims which were
never properly filed with AAA.
FIELDS be awarded the contractual amount of $2,500 per fight for
the three fights not scheduled by CAPTIAL during the remaining
term of the PRA, which ended on August 4, 2005, for a total amount
of $7,500.
CAPITAL pay cost of Arbitration of Claimant.
CAPITAL pay attorney fees of Claimant in the amount of $10,000,
for total award of attorney fees to Claimant of $15,000.
CAPITAL pay all other costs of this Arbitration submitted by AAA
with fifteen days of this decision.

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Plaintiff disputes that the Law Office of Kolesar & Leatham represented Fields at
the time they dispatched the letter; however, upon review of the January 15, 2004 correspondence,
it is clear to the Court that Kolesar & Leatham were contacting Plaintiff on behalf of Fields, their
client. See ECF No. 39, Exh. 4.

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ECF No. 39, Exh. G at 7.3
Summary Judgment Standard
The standard for summary judgment is well settled. In determining whether
summary judgment should issue, the Court must view the facts and inferences from
the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Woods
v.DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005); Littrell v. City of
Kansas City, Mo., 459 F.3d 918, 921 (8th Cir. 2006). The moving party has the
burden to establish both the absence of a genuine issue of material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Once the
moving party has met this burden, the nonmoving party may not rest on the
allegations in his pleadings but by affidavit or other evidence must set forth specific
facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e);
Anderson 477 U.S. at 256; Littrell , 459 F.3d at 921. “The party opposing summary
judgment may not rest on the allegations in its pleadings; it must ‘set forth specific
facts showing that there is a genuine issue for trial.’” United of Omaha Life Ins. Co.
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The Arbitrator’s Award was confirmed by the District Court for Clark County,
Nevada on June 8, 2006.

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v. Honea, 458 F.3d 788, 791 (8th Cir.2006) (quoting Fed.R.Civ.P. 56(e)); “‘Only
disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.’ Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).” Hitt v. Harsco Corp., 356 F.3d 920, 923 (8th Cir.
2004). An issue of fact is genuine when “a reasonable jury could return a verdict for
the nonmoving party” on the question. Anderson, 477 U.S. at 248; Woods, 409 F.3d
at 990.
To survive a motion for summary judgment, the “nonmoving party must
‘substantiate his allegations with sufficient probative evidence [that] would permit a
finding in [his] favor based on more than mere speculation, conjecture, or fantasy.’
Wilson v. Int’l Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)(quotation
omitted).” Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003).
A plaintiff may not merely point to unsupported self-serving allegations, but must
substantiate allegations with sufficient probative evidence that would permit a
finding in the plaintiff's favor. Wilson v. Int’l Bus. Mach. Corp., 62 F.3d 237, 241
(8th Cir.1995). “The mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. 242 at 252; Davidson &
Associates v. Jung, 422 F.3d 630, 638 (8th Cir. 2005). Summary Judgment will be

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granted when, viewing the evidence in the light most favorable to the nonmoving
party and giving the nonmoving party the benefit of all reasonable inferences, there
are no genuine issues of material fact and the moving party is entitled to judgment as
a matter of law. Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797, 801 (8th Cir.
2006). “Mere allegations, unsupported by specific facts or evidence beyond the
nonmoving party’s own conclusions, are insufficient to withstand a motion for
summary judgment.” Thomas v. Corwin, 483 F.3d 516, 526-7(8th Cir. 2007).
“Simply referencing the complaint, or alleging that a fact is otherwise, is insufficient
to show there is a genuine issue for trial.” Kountze ex rel. Hitchcock Foundation v.
Gaines, 2008 WL 2609197, 3 (8th Cir. 2008).
Discussion
Defendant DKP requests that the Court grant it summary judgment on all
counts on the grounds that, as a matter of law, Capital is collaterally estopped from
contesting that it committed a prior, material breach of the PRA and that Fields’s
participation in the St. Louis fight was not a breach of the PRA. Further, DKP
suggests that the Court grant it summary judgment because it was the actions of
Capital, not DKP, that caused Capital to sustain any of its alleged injuries.
Additionally, Defendant argues the Court should grant DKP summary judgment
because Capital cannot prove that it sustained any damage as a result of DKP’s

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conduct. And finally, DKP contends that summary judgment is appropriate in favor
of DKP because the claims for punitive damages and/or conspiracy are dependent
upon the other claims on which DKP should be granted summary judgment.
Issue Preclusion / Collateral Estoppel
DKP contends that Capital is precluded from re-litigating any issue in this
case that is identical to an issue decided in the Arbitration. Courts are to look at state
law in determining whether to apply issue preclusion, also known as collateral
estoppel. Royal Ins.Co. of Am. v. Kirksville Coll. Of Osteopathetic Med., Inc., 304
F.3d 804, 807 (8th Cir.2002). Under Missouri law, three factors are considered in
determining whether to apply the doctrine of collateral estoppel: (1) whether the
issue decided in the prior adjudication was identical to the issue presented in the
present action; (2) whether the prior adjudication resulted in a judgment on the
merits; and (3) whether the party against whom collateral estoppel is asserted was a
party in privity with a party to the prior adjudication. Liberty Mut. Ins.Co. V. FAG
Bearings Corp., 335 F.3d 752, 758 (C.A.8 Mo. 2003). In some cases, courts are to
apply an additional factor when analyzing collateral estoppel. Id. In instances where
non-mutuality exists among the parties in the previous and current litigations, courts
are to determine whether the party against whom preclusion is asserted had a “full
and fair opportunity” to litigate the issue. Id. quoting Aetna Cas. & Sur. Co. v. Gen.

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Dynamics Corp., 968 F.2d 529, 532-533. Where there has been a final and binding
arbitration between parties, courts are collaterally estopped from re-litigating the
facts determined in the arbitration proceeding. Pratt v. Purcell Tire and Rubber Co.,
Inc., 846 S.W.2d 230, 233 (8th Cir.1993).
With regard to the elements of collateral estoppel, Capital agrees with
Defendant DKP that the issue in the first action was identical to the issue in the
present action. Further, Capital agrees with DKP that the Arbitration Award is a
final judgment on the merits. Capital also agrees that DKP was in privity with
Fields, and that the third collateral estoppel factor has been met. Thus, Capital
admits that the collateral estoppel elements have been met with regard to the
Arbitrator’s Award; however, Capital’s interpretation of the Award differs from
DKP’s. Capital contends the Arbitrator found the PRA valid through August 4,
2005 and that Defendant is precluded from arguing that Capital did not have an
enforceable contract with Tye Fields on February 5th of 2005.
While the Arbitrator’s Award is by no means a beacon of clarity, there are
firm conclusions to be drawn from it. Specifically, the Arbitrator held that Capital
failed to schedule the agreed upon number of fights, which was four fights per year.
The plain language of the Arbitrator’s Award states, “CAPITAL, by failing to fulfill
its contractual obligation as to the number of fights promoted for Fields in said time

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frame, breached the PRA.” ECF No. 39, Exh. G at 6 (emphasis added). To
determine the time frame to which the Arbitrator was referring, the Court had to
look no further than the two paragraphs immediately preceding the “said time
frame” language. Upon review of the Award, the time frame to which the Arbitrator
was referring was “July 10, 2004 through February 4, 2005.” Id. During that
period–as the Arbitrator pointed out–Capital only promoted one fight on October 8,
2004. Thus, the Arbitrator held that Capital failed to promote two more fights from
July 10, 2004 through February 4, 2005, which resulted in a breach of the PRA. See
Id. As such, Capital was in breach of the PRA prior to the St. Louis Fight on
February 5, 2005.
Plaintiff contends that it did not breach the PRA, as the Arbitrator held,
because the Arbitrator found that the term of the PRA ended on August 4, 2005.
While Plaintiff’s assertion carries some truth, its conclusion still misses the mark.
According to the Award, “FIELDS was injured and due to the injury he could not
fight for approximately six months.” Id. at 4. As such, the Arbitrator held that the
term of the PRA “ended on August 4, 2005 by having the additional six month
period tacked on to the [end of the February 4, 2005] term.” Id. While the Court
finds this suggestion confusing, it does not negate the Arbitrator’s ultimate holding:
that Capital breached the PRA by failing to schedule the agreed upon number of

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fights per year. The alleged August 4, 2005 extension discussed earlier in the Award
is essentially irrelevant in light of the Arbitrator’s ultimate finding that Capital
breached the PRA in February of 2005. Furthermore, Plaintiff offers no evidence
that it produced additional valid bout agreements for the agreed upon number of
fights through February 4 or August 4 of 2005, which could have potentially
prevented Capital from breaching the PRA.
Additionally, the Court is puzzled by the apparent six month extension in light
of the terms of the PRA. Paragraph 7, titled “Disability or Postponement” states the
following:
Should any bout(s) arranged and scheduled pursuant to the terms of this
Agreement be postponed due to injury or disability of Fighter, or any other
reason directly attributable to Fighter, the obligations of Fighter and Manger
[sic] relating to the bouts, and the terms of this Agreement, shall automatically
be extended for the period of any such postponement and/or injury or
disability and for reasonable training period thereafter. . . . Promoter shall
give Fighter written notice in the event that Promoter believes that the term of
this Agreement has been extended pursuant to this Paragraph. . . .

ECF. No 39, Exh. E, Promotional Rights Agreement at ¶ 7.
Pursuant to the PRA, if Capital believed that the term of the PRA was to be
extended, it was required to send Fields written notice via certified mail, return
receipt requested and postage prepaid. Id. ¶ 7 and ¶ 19. While it is true that Capital
made an attempt to trigger an extension pursuant to the PRA, Capital failed to

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follow the proper procedures that were clearly outlined in the PRA. Id. See Paul
Scieszinski’s Email, ECF No. 46-2, The District Court of Clark County, Nevada
also addressed the Arbitrator’s error with regard to the extension. “The extension of
the contract as found by the arbitrator is questionable in that it is not supported by
the language of the contract. This error, however, does not warrant setting aside the
arbitration award because it prejudiced FIELDS, not CAPITAL.” ECF No. 39, Exh.
H, Judgment at p. 4.
Furthermore, the language of the Award in no way suggests that Fields or
DKP violated the PRA; it only states that Capital breached the PRA. In fact, the
Arbitrator addressed Plaintiff’s contention that Fields violated the PRA and swiftly
dismissed the argument. Capital alleged that when Fields hired Billy Baxter as
manager and Elliot Eisner as his attorney, Fields prevented Capital from promoting
fights. The Arbitrator quickly dismissed the argument and held that “Capital’s
allegation that somehow Fields’ [sic] obtaining professional representation was a
breach of the PRA IS NOT SUSTAINABLE.” Id. Thus, the Arbitrator found that
Fields did not breach the PRA.4 As such, Capital is precluded from arguing that a)

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Even Paul Scieszinski, Capital’s lawyer throughout the earlier proceedings and the
Arbitration, opined that it was his understanding that the Arbitrator found that Capital breached
the PRA, and that Fields did not breach the PRA, by participating in the St. Louis Fight.
Scieszinksi Depo, ECF No. 39-2, pg. 8 (Depo. pg. 28, ln. 20 - pg.29, ln. 6).

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Fields breached the PRA, and b) Capital did not breach the PRA.

Counts I and V - Intentional Interference with Contractual Relationship &
Conspiracy to Intentionally Interfere with Contractual Relationship
Capital alleges that DKP conspired with Billy Baxter, Bob Stupak and others
to intentionally and wrongfully interfere with Fields and Capital’s PRA. Under
Missouri law, the elements of tortious interference with a contract expectancy are:
(1) a contract, (2) defendant’s knowledge of contract, (3) intentional interference by
defendant inducing or causing breach of contract, (4) absence of justification, and
(5) damages. Wash Solutions, Inc., v. PDQ Mfg., Inc., 395 F.3d 888, 895 (8th
Cir.2005). The parties arbitrated this issue already and the Arbitrator found that
neither Fields nor DKP breached the PRA, and that it was in fact Capital who
breached the PRA. The Arbitrator’s Award rejected the argument that Billy Baxter
interfered with Fields and Captial’s PRA and found that Capital breached the PRA
failing to provide the agreed upon number of fights. ECF No. 39, Exh. G at 5-6. The
Arbitrator stated that there was nothing in the PRA to preclude Fields from hiring
Baxter, and even went to so far to say that it would have been “foolish” of Fields to
have not hired Baxter to represent his interests. Id. at 5. As such, neither DKP nor
Baxter tortiously interfered with Captial and Fields’s PRA, and Capital is precluded
from arguing such.
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Assuming in arguendo that Capital wasn’t precluded from bringing Count I,
DKP would still be entitled for summary judgment on the claim because DKP’s
ability to enter into the agreement with Fields for the February 5, 2005 St. Louis
Fight was considered justified in light of Capital’s breach. See Wash Solutions, Inc,
395 F.3d at 895-896 (holding that in order to have a claim for interference with a
valid business expectancy, it is necessary to determine if the expectancy claimed was
valid under the circumstances alleged. If it was not, there was nothing for defendants
to have interfered with). Additionally, pursuant to the Arbitrator’s Award, and for
these same reasons detailed above, Plaintiff is precluded from alleging conspiracy to
tortiously interfere with the alleged contractual relationship between Capital and
Fields. As such, DKP is entitled to summary judgment on Capital’s Count I and V.
Count III - Fraud
DKP contends that it is entitled to summary judgment on Capital’s fraud
claim. Capital alleges that DKP acknowledged that Capital was Fields’ promoter,
attempted to schedule fights with Fields through Capital, and represented to Capital
that DKP would honor Capital’s agreement with Fields. ECF No. 1 at 5-6. Under
Missouri law, there are nine essential elements of fraud, and failure to establish any
one is fatal to recovery. Trimble v. Pracna, 167 S.W.3d 706, 712 (Mo. 2005). The
nine essential elements are: (1) a representation; (2) its falsity; (3) its materiality; (4)

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the speaker's knowledge of its falsity, or ignorance of its truth; (5) the speaker's
intent that it should be acted on by the person and in the manner reasonably
contemplated; (6) the hearer's ignorance of the falsity of the representation; (7) the
hearer's reliance on the representation being true; (8) the hearer's right to rely
thereon; and (9) the hearer's consequent and proximately caused injury. Id. (citing
Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. banc 1988)).
DKP denies that it ever made such a representation, and Plaintiff has failed to
produce evidence that would support such a claim. Plaintiff alleges that DKP
represented that it would honor the agreement between Capital and Fields. Plaintiff’s
assertion is merely an allegation, unsupported by specific facts or any evidence
beyond its own conclusion. See Thomas, 483 F.3d at 526-527. As such, the claim
fails and DKP is entitled to summary judgment on the fraud claim. Furthermore, as
discussed above at great length, the Arbitrator found that Capital breached the PRA
between Fields and Capital prior to the St. Louis Fight. Thus, even if Capital were to
present evidence that DKP made a representation that it would honor the PRA
between Fields and Capital, such an obligation was immediately negated upon
Capital’s breach. Therefore, DKP is entitled to summary judgment on Capital’s
fraud claim.
Count VII - Prima Facie Tort

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Capital alleges that DKP intentionally committed “the above acts” to cause
injury to Capital by interfering with Capital’s contractual relationship with Fields
and its business expectancy. “A claim alleging a prima facie tort ‘is disfavored
under Missouri law, particularly when a party has another remedy or other
potentially submissible tort claims available.’” Tamko Roofing Products, Inc. v.
Smith Engineering Co., 450 F.3d 822, 830-831 (8th Cir.2006) (citing Rice v.
Hodapp, 919 S.W.2d 240, 246 (Mo. banc 1996)). Prima facie tort is a “particular
and limited theory of recovery” whose elements include: (1) an intentional lawful
act by defendant; (2) defendant’s intent to injure the plaintiff; (3) injury to the
plaintiff; and (4) absence of or insufficient justification for defendant’s act. Nazeri v.
Missouri Valley College, 860 S.W.2d 303, 315 (Mo. banc 1993). Here, Capital’s
prima facie tort claim is nothing more than a mere accusation, unsupported by
specific facts or any evidence beyond its own conclusion. See Thomas, 483 F.3d at
526-527. Plaintiff’s lack of factual support reveals that this claim was nothing more
than a “catchall remedy of last resort” for a claim that is “not otherwise salvageable
under traditional causes of action”, which is prohibited under Missouri law. Id. Due
to Plaintiff’s lack of factual support, Capital’s prima facie tort claim fails and DKP
is entitled to summary judgment.5
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Furthermore, pursuant to the collateral estopple doctrine, Capital is precluded from
alleging prima facie tort for the same reasons it was precluded from bringing Count I (Intentional

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Counts II, IV, VI & VIII - Punitive Damages
Capital’s Counts II, IV, VI and VIII are all separate counts that seek relief in
the form of punitive damages. Generally, punitive damages are appropriate only
where the conduct of the defendant is outrageous because of defendant’s evil motive
or reckless indifference to the rights of plaintiff. Carpenter v. Chrysler Corp., 853
S.W.2d 346, 364 (Mo.App. E.D. 1993). A punitive damage claim is not a separate
cause of action, it must be brought in conjunction with a claim for actual damages.
Misischia v. St. John’s Mercy Med. Ctr., 30 S.W.3d 848, 866 (Mo.App. E.D.2000).
Thus, “[a] plaintiff must prevail on his or her underlying claim to submit punitive
damages to the jury.” Kelly v. State Farm Mut. Auto. Ins. Co., 218 S.W.3d 517, 526
(Mo.App. W.D.2007) (citing Romeo v. Jones, 144 S.W.3d 324, 334 (Mo.App.
E.D.2004). Because DKP is entitled to summary judgment on Capital’s Counts I, III,
V and VII, all of Capital’s corresponding punitive damages claims (Counts II, IV,
VI and VIII) also necessarily fail.
Conclusion
Pursuant to the doctrine of collateral estoppel, Capital is precluded from
bringing Counts I and V. Furthermore, DKP would still be entitled to summary
judgment on both counts because Capital has failed to prove the proper elements of
Interference with Contractual Relationship) and Count V (Conspiracy to Intentionally Interfere
with Contractual Relationship).

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a tortious interference with a contractual relationship claim. DKP is also entitled to
summary judgment relief for Capital’s fraud and prima facie tort claims (Counts III
and VII, respectively) due to Capital’s failure to “substantiate [its] allegations with
sufficient probative evidence [that] would permit a finding in [its] favor based on
more than mere speculation, conjecture, or fantasy.” Wilson, 62 F.3d at 241. And
finally, in light of DKP’s entitlement to summary judgment relief on Counts I, III, V
and VII, Capital’s corresponding punitive damages claims (Counts II, IV, VI and
VIII) also fail as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that Defendant Don King Productions, Inc.’s
Motion for Summary Judgment [ECF No. 39] is GRANTED.
Dated this 22nd day of January, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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