Case 1:17-cv-04848-AT Document 11 Filed 08/18/17 Page 1 of 18

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
____________________________________________

WARNER BROS. PICTURES, a division No. 17-cv-4848 (AT) (AJP)

of WB STUDIO ENTERPRISES INC.,
ANSWER TO COMPLAINT
Plaintiff, WITH COUNTERCLAIMS

-against- JURY TRIAL DEMANDED

OCTANE FILM CARS, LLC,

Defendant.
____________________________________________

Defendant Octane Film Cars, LLC (Octane), by its attorneys, Levi Lubarsky

Feigenbaum & Weiss LLP, for its answer to the Complaint of plaintiff Warner Bros. Pictures, a

division of WB Studio Enterprises Inc. (Warner Bros. or Plaintiff) filed on June 27, 2017,

responds and counterclaims as follows:

1. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 1 of the Complaint.

2. Admits the allegations in paragraph 2 of the Complaint.

3. Admits that it is a citizen of New York for diversity purposes, and admits that the

Complaint asserts claims exceeding $75,000, and states that the remaining allegations of

paragraph 3 of the Complaint constitute a conclusion of law, to which no responsive pleading is

required.

4. Admits that Octane resides in this judicial district and states that the remaining

allegations of paragraph 4 of the Complaint constitute a conclusion of law, to which no

responsive pleading is required.

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5. States that the Complaint speaks for itself as to what it purports to assert, and

denies that Plaintiff has stated any cause of action against Octane.

6. Denies having knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 6 of the Complaint.

7. Admits that Octane is New Yorks premier source of film cars from the 1950s to

the 1980s and that it so states on its website.

8. Admits that in December 2016, Octane and Plaintiff entered into an agreement

whereby Octane would procure for lease by Plaintiff two vintage BMW 507 automobiles for use

in filming the movie Oceans Eight in New York City in early February 2017; that the contract

price for the provision of the two BMWs in accordance with Plaintiffs specifications was

$200,000; that Octane provided written invoices to Plaintiff which Plaintiff agreed to pay, and

did pay in part, for services rendered by Octane in procuring the automobiles for lease; and that

Octane and Plaintiff exchanged certain draft agreements which were not signed, and otherwise

denies the allegations of paragraph 8 of the Complaint.

9. Denies the allegations of paragraph 9 of the Complaint insofar as it purports to

allege that the parties agreement was for one automobile, and states that in December 2016,

Octane and Plaintiff entered into an agreement whereby Octane would procure for lease by

Plaintiff two vintage BMW 507 automobiles for use in filming the movie Oceans Eight in New

York City in early February 2017 at a contract price of $200,000; states that Plaintiff breached

the foregoing agreement in January 2017 by unilaterally cancelling one of the automobiles when,

on information and belief, BMW offered to supply a similar automobile to Plaintiff at lower or

no cost; admits that, after said breach, Plaintiff offered to pay $124,500 for Octanes services in

connection with the second automobile, a price that would include compensation for Warner

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Bros. breach; admits that the component parts of the $124,500 figure included a $50,000 rental

fee; a $10,000 transportation fee; a $14,500 administrative/legal fee, including for work

previously performed; a $10,000 kill fee for the cancellation of one automobile; a $5,000 fee

for cancelling the wrapping of that automobile; a $5,000 finders fee; and a consulting fee of

$30,000.

10. Admits that Plaintiff paid Octane $100,000 as required by written invoices; denies

that the payment was a deposit; and admits that the film shoot, originally scheduled for

February 5, 2017 in New York City, had been pushed back to on or about and between February

10 and February 13 in New York City.

11. Denies the allegations of paragraph 11 of the Complaint, except admits that

Warner Bros. unilaterally changed the date and location of filming.

12. Denies the allegations of paragraph 12 of the Complaint, except admits that

Warner Bros. knew in December 2016 that the owners of the automobiles required the use of

Reliable Carrier, Inc. to transport the automobiles to New York City, knew that the entire risk of

loss was on Warner Bros. from the minute the automobiles left their respective owners custody

until they were returned, and knew that it was required to obtain sufficient insurance to cover its

potential liabilities, and had agreed to those terms.

13. Denies the allegations of paragraph 13 of the Complaint and states that Octane

was owed the $100,000 that it was paid, plus an additional $100,000 that has not yet been paid,

and that it is Plaintiff that breached its agreement with Octane.

AS TO THE FIRST CAUSE OF ACTION OF THE COMPLAINT

14. Repeats its responses to paragraphs 1-13 of the Complaint as though set forth in

full herein in response to paragraph 13 of the Complaint.

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15. Admits the allegations of paragraph 15 of the Complaint.

16. Denies the allegations of paragraph 16 of the Complaint.

17. Denies the allegations of paragraph 17 of the Complaint.

18. Denies the allegations of paragraph 18 of the Complaint.

AS TO THE SECOND CAUSE OF ACTION OF THE COMPLAINT

19. Repeats its responses to paragraphs 1-18 of the Complaint as though set forth in

full herein in response to paragraph 19 of the Complaint.

20. Admits that the agreement between Octane and Plaintiff included a duty of good

faith and fair dealing and states that the remainder of paragraph 20 of the Complaint states a

legal conclusion as to which no response is required. To the extent that any further response is

required, Octane denies the allegations of paragraph 20 of the Complaint.

21. Denies the allegations of paragraph 21 of the Complaint.

22. Denies the allegations of paragraph 22 of the Complaint.

AS TO THE THIRD CAUSE OF ACTION OF THE COMPLAINT

23. Repeats its responses to paragraphs 1-22 of the Complaint as though set forth in

full herein in response to Paragraph 23 of the Complaint.

24. Admits that Octane received payment of $100,000 from Warner Bros. and denies

the remaining allegations of paragraph 24 of the Complaint.

25. Denies the allegations of paragraph 25 of the Complaint, except admits that

Octane has refused to return the $100,000 to Warner Bros. because that money was owed to

Octane by Warner Bros. and Warner Bros. has no right to its return.

26. Denies the allegations of paragraph 26 of the Complaint.

27. Denies the allegations of paragraph 27 of the Complaint.

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DEFENSES

Octane, without assuming the burden of proof on those matters for which Warner Bros.

bears such burden, alleges for its defenses to Plaintiffs Complaint as follows:

FIRST DEFENSE

28. The Complaint fails to state a cause of action.

SECOND DEFENSE

29. The Complaint is barred because Warner Bros. failed to perform its contractual

obligations, including by, among other things, unilaterally cancelling one of the cars; materially

changing the date for delivery of the cars; materially changing the location for delivery of the

cars; and refusing to perform its insurance and transportation obligations for the cars.

THIRD DEFENSE

30. The Complaint is barred because Warner Bros. breached the duty of good faith

and fair dealing, by, among other things, arranging with BMW to supply a BMW 507 at lower

cost than the Octane contract price, and then delaying signing, and manufacturing pretextual

reasons not to sign, documentation for the gray BMW procured by Octane, in order to cause the

owner of that gray BMW to withdraw agreement to supply it. On information and belief, Warner

Bros. engaged in this conduct after it determined that it did not want the gray BMW 507

procured by Octane, and in an attempt to avoid paying contractual damages to Octane for

cancellation.

FOURTH DEFENSE

31. The Complaint is barred because return of the funds would result in unjust

enrichment of Warner Bros.

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FIFTH DEFENSE

32. The Complaint is barred by the doctrine of unclean hands.

SIXTH DEFENSE

33. The Complaint is barred by the doctrines of waiver and estoppel.

SEVENTH DEFENSE

34. Octane reserves the right to add to its defenses as additional information becomes

available in the course of this litigation.

COUNTERCLAIMS

THE NATURE OF THE COUNTERCLAIMS

35. Octane asserts counterclaims against Warner Bros. for breach of contract, breach

of the duty of good faith and fair dealing, and for recovery in quantum meruit, arising from

Warner Bros. breach of an agreement to pay Octane for its procurement of two rare 1958 BMW

507 cars for lease by Warner Bros. in connection with filming the movie Oceans Eight in New

York City in early February 2017.

JURISDICTION AND VENUE

36. The Court has subject matter jurisdiction over the counterclaims pursuant to 28

U.S.C. 1332 because Octane is a citizen of New York and, on information and belief, based on

the allegations of the Complaint, Plaintiff is a citizen of Delaware and California, and the amount

in controversy exceeds $75,000.

37. The Court also has supplemental jurisdiction over the counterclaims pursuant to

28 U.S.C. 1367(a).

38. Venue is proper in this District pursuant to 28 U.S.C. 1391(a) because Octane

resides in this District and a substantial part of the acts and omissions giving rise to these

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counterclaims occurred in this District.

FACTS COMMON TO ALL CAUSES OF ACTION

39. Octane is in the business of procuring rare and vintage automobiles for use in

films and television shows.

40. The automobiles to which Octane has access often are worth millions of dollars

and are owned by very wealthy individuals. These automobiles often have intrinsic value to their

owners that is beyond their dollar value, much as an artwork may have such value, based on the

cars beauty, rarity, performance and reputation, among other intangibles.

41. In or about the summer of 2016, Octane was contacted by a prop master working

on behalf of Warner Bros. in connection with the movie Oceans Eight (the Prop Master).

Prop masters represent the production, and are responsible for organizing the purchase or rental

of all props. The Prop Master asked Octane to search for an exotic, vintage sports car, built in

the 1950s.

42. Octane informed the Prop Master, in substance, that people who owned these

types of rare and very expensive cars, and were willing to lease them, tended to be finicky and to

insist upon every possible protection of their interests.

43. In or about October 2016, after Octane proposed various types of automobiles that

might be suitable, the Prop Master informed Octane that Warner Bros. was seeking two vintage

BMW Model 507 roadsters (BMW 507s or 507s) for use in the filming.

44. Octane informed the Prop Master that BMW 507s are very rare; that only about

250 507s were built; that not all survive; and that those that do survive are worth well over a

million dollars. Octane further explained that 507s tend to be meticulously restored and owned

by people who do not need the money they can earn by leasing them.

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45. After significant time and effort, Octane located two 507s, each built in 1958, one

in white and one in gray, each worth $3,000,000. Octane also located other 507s.

46. The Prop Master informed Octane that Warner Bros. wanted to proceed with

leasing the white and the gray 507s through Octane.

47. Because Warner Bros. wanted two identical gray cars, however, it was necessary

to have the exterior of the white car wrapped in gray, and its interior draped to change the

interior color from red to black. Due to the high risk of damage from the wrapping process,

many owners of valuable cars refuse to allow it. Octane, however, was able to secure the

owners agreement, and Warner Bros. agreed to pay the additional cost involved.

48. In or about early December, at the Prop Masters request, Octane provided written

contract terms for Warner Bros. These terms included, in substance and in part, that: 1) Octane

would arrange for the leasing of the white and gray 507s described in paragraph 45, above, from

their owners, for use in filming by Warner Bros. in New York City on or about February 5, 2017;

2) the white car would be wrapped/draped to match the gray car; 3) Warner Bros. had full

responsibility for the cars from the time they left the owners custody until they were returned,

and bore the entire risk of any loss; 4) Warner Bros. would procure sufficient insurance to cover

the foregoing liabilities; and 5) Warner Bros. would pay Octane $200,000 for its services

(possibly more, depending on whether additional services were required).

49. At or about the same time, and in all events by no later than December 13, 2016,

Octane informed Warner Bros that, as required by the owners of the 507s, transport of the cars to

New York City would be handled by Reliable Carriers, Inc. (Reliable), a highly regarded

carrier widely used to transport high end and priceless concept cars. Octane also supplied

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Warner Bros. with Reliables Certificate of Insurance, reflecting, among other things, $5,000,000

of coverage for Cargo Legal Liability insurance.

50. By agreement of the parties, the $200,000 contract price was to be paid in

installments. Octane had invoiced Warner Bros. for $30,000 on December 2, 2017. On

December 22, 2016, the Prop Master told Octane to send all of its remaining invoices, which

Octane did on the same day. Payment was required as follows: $30,000 by January 1, 2017;

$70,000 on or before January 5, 2017; $75,000 on or before January 23, 2017; and the final

payment of $25,000 (subject to change if, for example, additional services were required) was to

be made by February 15, 2017.

51. The Prop Master told Octane to proceed to do everything necessary to have the

two cars delivered for filming in New York City on time. Indeed, in a January 5 email to BMW

(which had been engaged to wrap the white 507), Octane, and others, the Prop Master wrote:

we would have both BMWs traveling to the NY/NJ area around Feb 3 and they arrive on the

5th, We would have six days to accomplish the physical wrapping and covering of the interior

panels of the white BMW to match the hero grey BMW 507. (Emphasis added).

52. Warner Bros. timely paid the first Octane invoice of $30,000.

53. Warner Bros. timely paid the second Octane invoice of $70,000.

54. Octane performed its obligations as agreed and was prepared to deliver the two

BMW 507s for filming in New York on February 5. In addition to having spent substantial time

and effort to locate the 507s, Octane expended substantial time and effort to arrange for the

wrapping of the white car, including, without limitation, by having numerous communications

with the Prop Master, Warner Bros., BMW, and BMWs agent. Octane also spent substantial

time and effort working with the car owners, who became increasingly concerned and impatient

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as Warner Bros. delayed in making plans, finalizing arrangements, and executing written

agreements with them, and addressing Warner Bros. and BMWs demands. Octane also spent

money, including making payment to one of the owners and retaining counsel to work on

finalizing written agreements between Octane and Warner Bros., and separately, between

Warner Bros. and the owners of the 507s. Warner Bros. well knew of Octanes expenditure of

time, effort and money to provide the two 507s.

55. On or about January 11, 2017, after Octane had invested substantial time and

effort in connection with procuring cars to Warner Bros. specifications, including the wrapping

project, Octane was told that Warner Bros. no longer wanted the white car, because it had found

a gray BMW 507 elsewhere. In breach of its agreement with Octane, Warner Bros. cancelled the

white 507.

56. On information and belief, Warner Bros. cancelled the white 507 because, in

January 2017, BMW, which had previously been unable to procure any 507s for the film,

supplied Warner Bros. with a similar gray 507. On information and belief, BMW was a sponsor

of Oceans Eight, and agreed to supply the similar gray 507 at lower or no cost. On information

and belief, Warner Bros. intentionally and in bad faith breached its contract with Octane, because

BMW gave Warner Bros. a less expensive alternative.

57. Octane objected to Warner Bros. attempt to extricate itself from the $200,000

contract to which it had agreed. Nevertheless, in an effort to reach accommodation, the parties

negotiated new terms pursuant to which Warner Bros. would pay Octane $124,500. That total

price included the following components: $25,000 per day for the rental of the gray 507 in New

York City in February, for a total of $50,000; $10,000 for transportation of the gray car; an

administrative/legal fee of $14,500 to account for fees that Warner Bros. had caused Octane to

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incur; a kill fee of $10,000 for Warner Bros. cancellation of the white car; a $5,000 finders

fee; a $5,000 wrap cancellation fee; and a $30,000 consulting fee. Warner Bros. had already

paid $100,000; the remaining payment was due either upon completion of filming or February

17, whichever was earlier.

58. Warner Bros. continued to delay in executing written documentation.

59. Warner Bros. knew that Octane was continuing its work to supply the gray 507

and never told Octane to stop doing so.

60. The gray 507 was scheduled to be transported to New York during the weekend

of February 4-5, 2017. Warner Bros., however, still, as of February 3, had not executed written

documentation, and the owner of the gray car became increasingly impatient and concerned with

Warner Bros. conduct. Warner Bros. was aware of the owners concerns and also knew that

there was a risk that if Warner Bros. continued to drag its feet, the owner would withdraw from

the agreement, because Octane had repeatedly informed Warner Bros., in substance, that the

owner would withdraw if the difficulty of the process (caused throughout by Warner Bros.

gamesmanship) began to outweigh the enjoyment of having the car used in the film.

61. On February 3, 2017, Warner Bros. counsel informed Octanes counsel that its

production schedule had changed; that filming had been delayed for at least a month; and that

filming would take place in Los Angeles instead of New York.

62. Octane had no obligation to supply Warner Bros. with a gray BMW 507 in Los

Angeles in March. Rather, the agreement between Octane and Warner Bros. was for Octane to

supply a gray BMW 507 in New York City in early February.

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63. On information and belief, Warner Bros. well knew before February 3 that its

production schedule had been delayed by at least a month and that its filming location had

changed to a location 3,000 miles away, but did not inform Octane.

64. On information and belief, Warner Bros. knew before February 3 that it would not

need the gray BMW 507 that it agreed to pay Octane to supply.

65. On information and belief, Warner Bros. had determined before February 3 that it

would need only one gray BMW 507, and that it would use the car provided by BMW instead of

the one procured by Octane in order to save money.

66. On information and belief, Warner Bros. decided before February 3, that it would

try to find a way out of its agreement with Octane which would not require it to pay contract

damages for the cancellation of the gray 507.

67. To that end, on or about February 1, Warner Bros. counsel told Octanes counsel,

for the first time, that Warner Bros. demanded a change to Reliables standard terms for

transporting the gray 507. Warner Bros. made this last-minute demand despite having known

since early December that the owner of the gray car required that Reliable be the carrier.

68. Warner Bros. purported objection to Reliables standard terms was that the terms

disclaimed liability for ordinary negligence in transporting the car to New York, thereby placing

the risk of loss on Warner Bros. during transport.

69. On information and belief, Warner Bros. purported objection was a pretext to

enable it to get out of its contract with Octane without paying contract damages. Warner Bros.

had already agreed that it had sole liability for the car from the moment it left the owners

custody and also had agreed to procure its own insurance to cover damage to the car. Thus,

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Warner Bros. liability, if it accrued, would have been covered by the insurance it had agreed to

procure, if not by Reliables insurance.

70. On February 3, 2017, Warner Bros. counsel informed Octanes counsel, in

substance, that since the films production schedule had changed, there was no need for Warner

Bros. to engage in further discussion regarding Reliable at that time and that discussions could be

put off until the following week.

71. On information and belief, on February 6, 2017, despite advice not to do so,

Warner Bros. counsel called Reliable, and told Reliable that there was no urgent need to speak

about Reliables terms because the production schedule had changed, with filming to take place

in March, in Los Angeles.

72. On information and belief, Reliable informed the owner of the gray 507 of its

conversation with Warner Bros. regarding the delay in the production schedule and change in the

location. At that point, the owner of the gray BMW elected not to proceed. Nor was the owner

required to proceed, since neither the owner nor Octane had agreed to supply the gray 507 in

California in March.

73. Warner Bros. then demanded return of the $100,000 it had paid Octane.

FIRST CAUSE OF ACTION

(Breach of Contract)

74. Octane repeats and realleges the allegations of paragraphs 35 through 73 as

though set forth in full herein.

75. Octane and Warner Bros. had a valid and binding agreement for Octane to

procure two automobiles, one white and one gray BMW 507, for use by Warner Bros. in New

York City in early February 2017, at a contract price of $200,000.

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76. Warner Bros. materially breached the agreement by cancelling the white 507 on

or about January 11, 2017, without cause and without fault by Octane.

77. Warner Bros. materially breached the agreement on or about February 3, 2017, by

cancelling delivery of the gray 507 in New York scheduled for early February 2017.

78. Octane has performed all of its obligations under the agreement, except as caused

or prevented by Warner Bros.

79. Warner Bros. has paid Octane only $100,000 and has refused to pay the

remaining $100,000 owed.

80. As a result of Warner Bros. breaches of contract, Octane has been damaged in an

amount to be determined at trial, but in a sum not less than $100,000.

SECOND CAUSE OF ACTION

(Breach of Contract)

81. Octane repeats and realleges the allegations of paragraphs 35 through 80 as

though set forth in full herein.

82. After breaching its contract with Octane by cancelling the white BMW 507, as set

forth in the First Cause of Action, Warner Bros. agreed that, in connection with Octanes

procurement of the gray BMW 507, Warner Bros. would pay Octane $124,500, which sum

included $50,000 for the rental of the gray 507; $10,000 for transportation of that car; an

administrative/legal fee of $14,500 to account for fees that Warner Bros. had caused Octane to

incur; a kill fee of $10,000 for Warner Bros. cancellation of the white BMW 507; a $5,000

finders fee; a $5,000 wrap cancellation fee; and a $30,000 consulting fee.

83. Warner Bros. materially breached the agreement on or about February 3, 2017, by

cancelling delivery of the gray 507 in New York scheduled for early February 2017.

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84. Octane has performed all of its obligations under the agreement, except as caused

or prevented by Warner Bros.

85. Warner Bros. has paid Octane only $100,000 and has refused to pay the

remaining $24,500.

86. As a result of Warner Bros. breach of contract, Octane has been damaged in an

amount to be determined at trial, but in a sum not less than $24,500.

THIRD CAUSE OF ACTION

(Breach of the Duty of Good Faith and Fair Dealing)

87. Octane repeats and realleges the allegations of paragraphs 35 through 86 as

though set forth in full herein.

88. A covenant of good faith and fair dealing is implied in the agreements between

Octane and Warner Bros. pursuant to which Warner Bros. covenanted and agreed not to

undertake any act that would frustrate, impair or destroy the purpose or performance of the

agreements.

89. After agreeing with Octane that it would pay $200,000 for Octane to supply two

BMW 507s, one white and one gray, in New York in early February 2017, Warner Bros.

obtained a gray BMW 507 from another source, believed to be BMW, at lower or no cost.

Warner Bros. then decided to film in California at least a month later, and further decided that

the gray 507 it obtained from BMW was sufficient and that it did not need the automobiles for

which it had contracted with Octane.

90. Warner Bros. cancelled the white BMW, but agreed to new terms for the

provision of only the gray BMW that would include some compensation to Octane for Warner

Bros. cancellation of the white BMW.

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91. Warner Bros. then decided to cancel the gray BMW that Octane was to supply,

but to do so in a way that it believed could enable it to avoid paying Octane any contract

damages. To that end, Warner Bros. made the pretextual excuse that the terms of the Reliable

contract were objectionable and delayed signing documentation in an effort to cause the owner of

the gray BMW to back out of the deal.

92. By virtue of Warner Bros. pretexts, delays, and unilateral and material changes to

the location and delivery date of the gray BMW, Warner Bros. caused the owner of the gray

BMW to decide not to proceed with supplying that automobile.

93. Warner Bros. conduct constitutes a breach of the duty of good faith and fair

dealing.

94. Warner Bros. has paid Octane only $100,000 and has refused to pay the

remaining $100,000.

95. Octane has been damaged by Warner Bros. breach of the duty of good faith and

fair dealing in an amount to be determined at trial, but no less than $100,000.

FOURTH CAUSE OF ACTION

(Quantum Meruit)

96. Octane repeats and realleges the allegations of paragraphs 35 through 95 as

though set forth in full herein.

97. This Fourth Cause of Action is asserted in the alternative to the First, Second and

Third Causes of Action.

98. Octane performed in good faith services for Warner Bros. in connection with

procuring two BMW 507s.

99. Warner Bros. accepted these services, including, but not limited to, Octanes work

in locating the two BMW 507s; negotiating and working with the cars owners; working with

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BMW, the Prop Master and others in connection with wrapping the white BMW 507; and

performing other tasks necessary to deliver both cars in New York in early February 2017.

100. Octane reasonably expected compensation for its services.

101. Warner Bros. has only paid Octane $100,000, which is insufficient compensation

for the value of its services.

102. Octane is entitled to receive from Warner Bros. reasonable compensation for its

services in an amount to be determined at trial, but no less than $100,000.

WHEREFORE, defendant/counterclaim-plaintiff Octane demands judgment against

plaintiff/counterclaim-defendant Warner Bros:

1. Dismissing the Complaint;

2. Awarding damages to Octane:

a. On the First Cause of Action, in an amount to be determined at trial, but

no less than $100,000.

b. On the Second Cause of Action, in an amount to be determined at trial, but

no less than $24,500.

c. On the Third Cause of Action, in an amount to be determined at trial, but

no less than $100,000.

d. On the Fourth Cause of Action, in an amount to be determined at trial, but

no less than $100,000.

3. Awarding Octane its costs and attorneys fees in this action; and

4. Awarding Octane such other and further relief as the Court deems just and proper.

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Dated: New York, New York

August 18, 2017

LEVI LUBARSKY FEIGENBAUM &

WEISS LLP

By: /s/ Andrea Likwornik Weiss

Andrea Likwornik Weiss
Gregory P. Feit
655 Third Avenue, 27th Floor
New York, New York 10017
Tel.: (212) 308-6100
aweiss@llfwlaw.com
gfeit@llfwlaw.com

Attorneys for Defendant/Counterclaim-

Plaintiff Octane Film Cars, LLC

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