Free Motion for Judgment as a Matter of Law - District Court of Delaware - Delaware

Case 1 :07-cv-00178-GIVIS Document 184 Filed 07/30/2008 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DEUTSCHER TENNIS BUND (GERMAN )
TENNIS FEDERATION), ROTHENBAUM )
SPORT GMBH, and QATAR TENNIS )
FEDERATION, )
Plaintiffs, )
)
vs. )
) C.A. N0. 07-178-GMS
ATP TOUR, INC., ETIENNE DE VILLIERS, )
CHARLES PASARELL, GRAHAM PEARCE, )
JACCO ELTINGH, PERRY ROGERS, and )
IGGY J OVANOVIC, )
)
Defendants. ) _
I)EFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW ON
PLAINTIFFS’ CONVERSION CLAIM
Defendants submit this memorandum of law in support of their motion, pursuant to Rule
50 of the Federal Rules of Civil Procedure, for judgment as a matter of law as to Plaintiffs’
conversion claim (Count IX), based on the failure to prove that Defendants deprived Plaintiffs of
anything capable of being converted as a matter of law.
I. Plaintiffs Have Not Established That They Were Deprived Of Anything
Capable of Conversion.
P1aintiffs’ conversion claim has no cormection whatsoever to any tangible thing.
Plaintiffs have claimed that their membership interest in ATP was converted by Defendants.
Under Delaware law, conversion is the “wrongii1l exercise of dominion over the property of
another, in denial of his right, or inconsistent with it." Resource Ventures, Inc. v. Resources
Management Intern., Inc., 42 F. Supp. 2d 423, 439 (D. Del. 1999) (citing Carlton Investments v.
TLC Beatrice International Holdings, Inc. et al., 1995 WL 694397, at *16 (Del.Ch. Nov. 21,
1995)); Arnold v. Soc Qv for Savings Bancorp, Inc., 678 A.2d 533, 536 (Del. 1996).
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Case 1 :07-cv—00178-GIVIS Document 184 Filed 07/30/2008 Page 2 of 3
"Traditionally, an action for conversion has been applied to the wrongful exercise of dominion
over tangible goods." Resource Ventures, Inc. v. Resources Management Intern., Inc., 42 F.
Supp. 2d 423, 439 (D. Del. 1999) (emphasis added).
Plaintiffs have offered no evidence that Defendants deprived Plaintiffs of
anything legally capable of being converted and thus their conversion claim must fail. While the
tort of conversion has sometimes been held to "encompass some intangible goods where the
intangible property relations are merged into a document," id., this doctrine only applies where
the thing taken is the physical embodiment of the intangible right, such as a stock certificate.
Haskell v. Middle States Petroleum Corporation, 35 Del. 380, 381-82 (1933) (stock certificates
capable of conversion). The mere claim that contractual or other legal rights have been violated
does not give rise to a conversion claim.
II. Plaintiffs Have Not Established That The Value Of Their Membership
Interest Was Destroyed.
Plaintiffs’ conversion claim must also be dismissed because Plaintiffs have offered no
evidence that their membership interest has been rendered without value. Conversion can only
apply where the act of dominion or control so seriously interferes with the owner’s right to
possession or control that the actor has fully extinguished the value of the property. Restatement
(Second) of Torts § 222A (1965) (emphasis added). Plaintiffs have presented no evidence that
their ATP membership is without value; to the contrary, Plaintiffs admit that they maintain their
membership on the ATP Tour, and that they have been awarded a 500 level event in the 30th
week of the 2009 ATP calendar.
The evidence is clear that 500 level events have value. For example, the uncontroverted
evidence is that there were twenty-two applicants for eleven 500 level tournaments (J ovanovic
1011) and that the Qatar Tennis Federation was willing to pay a $ 1 OM bid premium in order to
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Case 1 :07-cv—00178-GIVIS Document 184 Filed 07/30/2008 Page 3 of 3
secure a 500 level event (Azmy 868). Evidence has also been introduced that there is a market
for tennis events that are not in the top tier. For example, Iggy J ovanovic testified that he put
together a list of potential acquisition opportunities for the Abu Dhabi Tourism Authority which
included 500 and 250 level events. (Jovanovic 1084-1085, PTX 664). The German Tennis
Federation sold a Tier II women’s event, the Betty Barclay WTA event (Waldenfels 449-50) and
did not believe that Qatar Tennis Federation’s operation of a Tier II WTA membership in Berlin
rather than a Tier I amounted to "taking away their membership" (Waldenfels 455). Plaintiffs
have not presented any evidence that the value of the Hamburg membership was extinguished,
and in fact, the evidence is to the contrary. At most, Plaintiffs have offered conclusory evidence
in support of their argument that they will be unable to succeed or survive if they try to operate a
500 level tournament in Hamburg in the summer. Because Plaintiffs would nevertheless possess
a right that would have value to a third party, Plaintiffs’ evidence does not suffice to support a
claim for conversion.
CONCLUSION
Based on the foregoing, this Court should rule as a matter of law that Plaintiffs’
membership rights have not been converted.
Dated: July 30, 2008 ASHBY & GEDDES
/s/ Philip Trainer, Jr.
Of Counsel:
Philip Trainer, Jr. (I.D. #2788)
PROSKAUER ROSE LLP Tiffany Geyer Lydon (I.D. #3950)
Bradley I. Ruskin Toni-Ann Platia (I.D. #5051)
Colin A. Underwood 500 Delaware Avenue, 8th Floor
Jennifer R. Scullion P.O. Box 1150
Evan S. Greene Wilmington, Delaware 19899
1585 Broadway 302-654-1888
New York, NY 1003 6-8299 [email protected]
212-969-3 000 tlydon@ashby-geddescom
[email protected]
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