Subaru's Motion To Dismiss, Rob Weir's Statement and Exhibits

Case 2:18-cv-02133-MWF-MRW Document 7 Filed 04/06/18 Page 1 of 29 Page ID #:32
1 Peter L. Haviland, 144967 REDACTED VERSION OF

havilandp@ballardspahr.com DOCUMENT PROPOSED TO
2 Scott S. Humphreys, 298021 BE FILED UNDER SEAL
humphreyss@ballardspahr.com
3 BALLARD SPAHR LLP
2029 Century Park East, Suite 800
4 Los Angeles, CA 90067
Telephone: 424.204.4400
5 Facsimile: 424.204.4350
6 Attorneys for Defendant
SUBARU OF AMERICA, INC.
7
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11
12 ALPHA GRP, INC., Case No. 2:18-cv-02133-MWF
13 Plaintiff, SUBARU’S NOTICE OF MOTION
AND MOTION TO:
14 v.
15 SUBARU OF AMERICA, INC. (i) TRANSFER OR DISMISS FOR
IMPROPER VENUE;
16 Defendant.
(ii) DISMISS FOR FAILURE TO
17 STATE A CLAIM
18
[Memorandum of Points & Authorities
19 and Declaration of Robert Weir
in support thereof]
20
21 Judge: Hon. Michael W. Fitzgerald
Date: May 14, 2018
22 Time: 10:00 a.m.
23 Place: Courtroom 5A
350 West First Street,
25
26
27
28
SUBARU’S NOTICE OF MOTION AND MOTION TO:
(i) TRANSFER OR DISMISS FOR IMPROPER VENUE; (ii) DISMISS FOR FAILURE TO STATE A CLAIM
1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

2 PLEASE TAKE NOTICE that on Monday, May 14, 2018, at 10:00 a.m.,
3 or as soon thereafter as the matter may be heard in the above entitled Court located
4 at the First Street Courthouse, 350 West First Street, Los Angeles, CA 90012,
5 in Courtroom 5A, Defendant Subaru of America, Inc. (“Subaru”) will and hereby
6 does move the Court for an order transferring venue to the United States District
7 Court for the District of New Jersey or, in the alternative, dismissing all causes of
8 action in Plaintiff’s Complaint.
9 This motion is brought on the following grounds: (1) The interests of justice
10 dictate that this action be transferred to the United States District Court for the
11 District of New Jersey pursuant to 28 U.S.C. § 1404(a) consistent with a forum
12 selection clause that has governed the parties’ course of dealings for many years;
13 or alternatively, that venue is improper in this Court and should be dismissed or
14 transferred to the District of New Jersey pursuant to 28 U.S.C. § 1406(a) and
15 Fed. R. Civ. P. 12(b)(3); and (2) Plaintiff’s Complaint has failed to state any claim
16 upon which relief can be granted under Fed. R. Civ. P. 12(b)(6), including that
17 Plaintiff has failed to plead its Third Count (Fraud) under Fed. R. Civ. P. 8 or with
18 the requisite particularity under Fed. R. Civ. P. 9(b).
19 The motion is based on this Notice; the accompanying Memorandum
20 of Points and Authorities and Declaration of Robert Weir in support thereof; any
21 oppositions or replies filed by the parties; the pleadings, records and case file in
22 this action; the arguments of counsel at the time of the hearing; and such other and
23 further matters as the Court deems just and proper.
24 This motion is made following the conference of counsel pursuant to
25 Local Rule 7-3 that took place on April 2, 2018, the earliest date of Plaintiff’s
26 counsel’s availability.
27 ////
28 ////
2
1 DATED: April 6, 2018 Peter L. Haviland

Scott S. Humphreys
2 BALLARD SPAHR LLP
3
/s/ Scott S. Humphreys
4 Scott S. Humphreys
6 SUBARU OF AMERICA, INC.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
1 TABLE OF CONTENTS
2 Page
3 I. PRELIMINARY STATEMENT ..................................................................... 1
4 II. FACTUAL BACKGROUND ......................................................................... 3
5 III. ARGUMENT .................................................................................................. 9
6 A. The Parties' Consistent Agreement To New Jersey Venue
Supports Transfer Under 28 U.S.C. § 1404(a). .................................... 9
7
B. The Typical § 1404(a) Factors Also Require Transfer
8 to New Jersey. ..................................................................................... 11
9 1. An Adequate Alternative Forum Exists. .................................. 12
10 2. The Private and Public Factors Favor Transfer. ....................... 12
11 (a) Subaru and Key Witnesses Reside in New Jersey. ........ 12
12 (b) New Jersey is a More Convenient Forum. ..................... 13
13 (c) Relevant Evidence is Located in New Jersey. ............... 13
14 (d) Unwilling Witnesses Cannot be Compelled to
Testify in California. ...................................................... 13
15
(e) The Cost of Bringing Witnesses to Trial in
16 California is Higher Than New Jersey. .......................... 13
17 (f) The Enforceability of the Judgment is not an Issue. ...... 14
18 (g) The Court’s Familiarity with Governing Law is
19 Neutral. ........................................................................... 14
20 C. Venue Is Also Improper in California Requiring Dismissal

Pursuant to 28 U.S.C. § 1406(a) and Fed. R. Civ. P. 12(b)(3). .......... 14
21
D. Alternatively, the Entire Action Should Be Dismissed for Failure
22 to State a Claim Pursuant to Rule 12(b)(6). ........................................ 16
23 1. Plaintiff Fails to State a Claim for Breach of Oral Contract. ... 16
24 2. Plaintiff Fails to State a Claim for Promissory Estoppel.......... 18
3. Plaintiff Fails to State a Claim for Fraud.................................. 19
25
4. Plaintiff Fails to State a Claim for Tortious Interference. ........ 20
26
IV. CONCLUSION ............................................................................................. 21
27
28
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Ablett v. Clauson,
43 Cal.2d 280 (Cal. 1954) ...................................................................................... 16
5
Aguilar v. Int’l Longshoremen’s Union Local #10,
6 966 F.2d 443 (9th Cir. 1992) .................................................................................. 18
7 Allstar Mktg. Group, LLC v. Your Store Online, LLC,
8 666 F.Supp.2d 1109 (C.D. Cal. 2009) ................................................................. 3, 9
9 Almont Ambulatory Surgery Center, LLC v. UnitedHealth Group, Inc.,

No. CV-14-02139-MWF (VBKx),
10 2015 WL 12733443 (C.D. Cal. April 10, 2015) .................................................... 10
11 Argueta v. Banco Mexicano, S.A.,
87 F.3d 320 (9th Cir. 1996) ...................................................................................... 3
12
Ashcroft v. Iqbal,
13 556 U.S. 662 (2009) ................................................................................... 16, 19, 21
14 Atl. Marine Constr. Co. Inc. v. U.S. Dist. Court,
571 U.S. 49, 134 S. Ct. 568 (2013) .................................................................... 9, 11
15
Bell Atl. Corp. v. Twombly,
16 550 U.S. 544 (2007) ......................................................................................... 16, 21
17 Bristol-Myers Squibb Co. v. Superior Court,
18 582 U.S , 137 S. Ct. 1773 (2017) ....................................................................... 15
19 Chrysler Credit Corp. v. Country Chrysler, Inc.,

928 F.2d 1509 (10th Cir. 1991).............................................................................. 10
20
Contact Lumber Co. v. P.T. Moges Shipping Co.,
21 918 F.2d 146 (9th Cir. 1990) ............................................................................ 11, 12
22 Daimler AG v. Bauman,
571 U.S 117 __, 134 S. Ct. 746 (2014) .................................................................. 15
23
Endonovo Therapeutics, Inc. v. New Paradigm Ventures, Inc.,
24 No. CV-16-07433-MWF(FFM),
25 2017 WL 3049560 (C.D. Cal. Jan. 5, 2017) .......................................................... 11
26 G.P.P., Inc. v. Guardian Prot. Prod., Inc.,

No. 1:15-CV-00321-SKO, 2017 WL 220305 (E.D. Cal. Jan. 18, 2017),
27 on reconsideration in part,
No. 1:15-CV-00321-SKO, 2017 WL 698335 (E.D. Cal. Feb. 21, 2017) .............. 16
28
DMWEST #17606483 v2 ii
1 Geo. F. Martin Co. v. Royal Ins. Co. of Am.,

No. C03-5859, 2004 WL 1125048 (N.D. Cal. May 14, 2004) .............................. 12
2
Gulf Ins. Co. v. Glasbrenner,
3 417 F.3d 353 (2d Cir. 2005) ................................................................................... 15
4 Gulf Oil Corp. v. Gilbert,
330 U.S. 501 (1947) ............................................................................................... 11
5
J.B. Enterprises Int’l, L.L.C. v. Sid & Marty Krofft Pictures Corp.,
6 No. CV 02-7779 CBM (SHX),
7 2003 WL 21037837 (C.D. Cal. Mar. 3, 2003) ....................................................... 18
8 Jocer Enterprises, Inc. v. Compass Constr., Inc.,

No. 17-cv-01219-MWF (KKx),
9 2017 WL 4011134 (C.D. Cal. Sept. 12, 2017) ...................................................... 10
10 Jones v. GNC Franchising, Inc.,
211 F.3d 495 (9th Cir. 2000) .................................................................................... 9
11
Kaia Foods, Inc. v. Bellafiore,
12 70 F. Supp. 3d 1178 (N.D. Cal. 2014) ................................................................... 14
13 Kearns v. Ford Motor Co.,
14 567 F.3d 1120 (9th Cir. 2009)................................................................................ 19
15 Language Door Inc. v. MyAsia LLC,

No. SA CV13-01220-JVS (RNBs),
16 2014 WL 12690753 (C.D. Cal. Jan. 6, 2014) ........................................................ 17
17 Lazar v. Superior Court,
12 Cal.4th 631 (1996) ............................................................................................ 19
18
McDonald v. John P. Scripps Newspaper,
19 210 Cal.App.3d 100 (Cal. App. 1989) ................................................................... 16
20 Moore v. Wells Fargo Bank, N.A.,
No. 14CV1342-GPC-RBB,
21 2014 WL 4355585 (S.D. Cal. Sept. 3, 2014) ......................................................... 18
22 Ove v. Gwinn,
23 264 F.3d 817 (9th Cir. 2001) .................................................................................. 16
24 Pac. Gas & Elec. Co. v. Bear Stearns & Co.,

50 Cal. 3d 1118 (1990)........................................................................................... 20
25
Pelleport Inv’rs, Inc. v. Budco Quality Theatres, Inc.,
26 741 F.2d 273 (9th Cir. 1984) .................................................................................. 10
27 Piedmont Label Co. v. Sun Garden Packing Co.,
598 F.2d 491 (9th Cir. 1979) .................................................................................. 14
28
DMWEST #17606483 v2 iii
1 Piper Aircraft Co. v. Reyno,

454 U.S. 235 (1981) ......................................................................................... 11, 12
2
Snyder Insurance Servs., Inc. v. Sohn,
3 No. 16-cv-2535 (D. Kan. July 3, 2017) ................................................................. 20
4 Sparling v. Hoffman Constr. Co.,
864 F.2d 635 (9th Cir. 1998) .................................................................................... 9
5
Steelcase, Inc. v. Haworth, Inc.,
6 No. CV 96-1964 JGD (AJWx),
7 1996 WL 806026 (C.D. Cal. May 15, 1996) ......................................................... 12
8 Stragent LLC v. Audi AG,

No. 6:10CV227 LED-JDL,
9 2011 WL 2912907 (E.D. Tex. July 18, 2011).................................................... 6, 12
10 Vess v. Ciba-Geigy Corp. USA,
317 F.3d 1097 (9th Cir. 2003).......................................................................... 19, 20
11
Walden v. Fiore,
12 134 S.Ct. 1115 (2014) ............................................................................................ 15
13 Yucesoy v. Uber Techs., Inc.,
14 109 F. Supp. 3d 1259 (N.D. Cal. 2015) ................................................................. 20
15 Statutes and Rules

16 28 U.S.C. § 1391(b) ................................................................................................... 14
17 28 U.S.C. § 1404(a) ............................................................................... 2, 9, 10, 11, 14
18 28 U.S.C. § 1406(a) ................................................................................................... 14
19 Fed. R. Civ. P. 12(b)(3) ....................................................................................... 14, 15
20 Fed. R. Civ. P. 12(b)(6) ............................................................................................. 16
21 Fed. R. Civ. P. 8 ................................................................................................... 19, 21
22 Fed. R. Civ. P. 9 ......................................................................................................... 19
23 Other Authorities
24 1 Arthur L. Corbin,
Corbin on Contracts § 1.15 (rev. ed. 2005) ........................................................... 17
25
Restatement (Second) of Contracts § 2 cmt. f .......................................................... 17
26
27
28
DMWEST #17606483 v2 iv
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. PRELIMINARY STATEMENT
3 Subaru of America, Inc. (“Subaru”) hereby moves to transfer venue to
4 New Jersey or, alternatively, to dismiss the Complaint filed by Alpha GRP, Inc.
5 (“Alpha”), a marketing entity controlled by the promoter Colin Dyne.
6 In 2016 and 2017, Subaru entered into one-year, renewable written
7 corporate sponsorship agreements with Alpha to sponsor a rallycar racing series
8 operated by Mr. Dyne. The last of those agreements terminated December 1, 2017.
9 In October and November of 2017 Dyne solicited a further commitment for 2018,
10 and Subaru expressed interest in continuing the sponsorship. However, the terms
11 that Dyne subsequently offered for 2018 were radically different than in prior years.
12 Dyne demanded a $ sponsorship fee, a staggering increase over the
13 $ paid in 2017 and $ paid in 2016. Other major sponsors, including
14 Honda and Volkswagen, independently announced that they would not participate in
15 2018, significantly diminishing the competitiveness and market appeal of the series.
16 Subaru also received reports that Dyne was not paying race car drivers and vendors
17 associated with the events. When Subaru then informed Dyne that, following
18 Honda and Volkswagen’s withdrawal, it would not renew the sponsorship in 2018,
19 Dyne filed this action claiming breach of an "oral contract."
20 But as Mr. Dyne and Alpha well know the appropriate venue for any claim
21 between the parties is New Jersey, not California. Subaru is a New Jersey
22 corporation with its principal place of business there. In the 2016 and 2017
23 written contracts with Subaru, Alpha expressly agreed, in a forum selection clause,
24 that all disputes between the parties would be submitted to the “jurisdiction of the
25 New Jersey state and federal courts … and that the exclusive venue for resolution
26 of such disputes shall be state or federal courts located in Camden County,
27 New Jersey.” Alpha now alleges an “oral contract” after the expiration of these
28 written contracts, but this forum selection clause reflects the parties’ course of
DMWEST #17606483 v2
1 dealing, and makes clear their intent that any disputes concerning any alleged
2 breach of Subaru’s agreement to sponsor Alpha’s rallycross series must be litigated
3 in New Jersey. In its present Complaint, Alpha makes reference to core discussions
4 about whether Subaru and other prior sponsors would reach a binding agreement to
5 participate in the 2018 racing series, which transpired in Detroit, Michigan, not
6 California. Subaru’s principal witnesses concerning these discussions live and
7 work in or near New Jersey. Transfer of this case to the U.S. District Court for
8 the District of New Jersey is accordingly in the interest of justice pursuant to
9 28 U.S.C. § 1404(a).
10 With respect to the merits of Alpha's claim of an “oral” sponsorship contract,
11 the Complaint's suggestion that “the entirety of terms of the contracts” between
12 Alpha and Subaru for sponsorship agreements -- agreements in which Subaru
13 invested hundreds of thousands of dollars in return for specific and detailed
14 marketing opportunities -- “often” “are not reduced to formal writing” is a
15 fabrication and a sham. Subaru has not entered into oral sponsorship agreements
16 with Alpha, and its written sponsorship agreements, as one would expect, make clear
17 that no purported “understandings” are binding “unless set forth in a document duly
18 executed by or on behalf of” the parties.
19 Notable is the Complaint’s abject failure to plead the alleged “oral contract’s”
20 material terms, including the failure to state how much Subaru supposedly agreed to
21 pay for its 2018 sponsorship. Although preliminary discussions took place, no oral
22 contract was formed and no written contract between Subaru and Alpha was
23 prepared or executed in connection with the 2018 series because -- quite simply --
24 Subaru, following Honda and Volkswagen, was unable to reach terms for an
25 agreement with Mr. Dyne for 2018. The Complaint’s ancillary claims for
26 promissory estoppel, fraud and tortious interference are also based on knowingly
27 false allegations, fail to allege material elements of the claims, and are appropriate
28 for dismissal. Indisputable factual chronology establishes that contrary to Dyne's
2
1 claim of Subaru's "tortious interference" with other sponsors, Honda and

2 Volkswagen independently abandoned Dyne's 2018 Supercar series before Subaru.
3 Apparently incensed by the withdrawal of other major sponsors and Subaru,
4 Mr. Dyne has not only caused a blatantly false pleading to be filed on his behalf,
5 but has made thuggish threats against Subaru executives. For example, on March 14
6 -- in conjunction with the filing of this Complaint -- Mr. Dyne wrote to one New
7 Jersey Subaru executive involved in ending the Alpha sponsorship:
8 Nice Job Rob
I will make sure that U loose ur job over this
9 You are a worthless no spine human ..
10
Even your own people hate You ask Lance what he thinks of u !
11 Scum I’ll see u on the other side … I have been in contact with
Japan and I am sure u will hear from THEM.1
12
13 Subaru respectfully submits that Mr. Dyne’s tactics, both in and out of Court,
14 should not be countenanced, and respectfully requests that Alpha’s Complaint be
15 transferred or dismissed.
16 II. FACTUAL BACKGROUND
17 In ruling on a motion to dismiss or transfer for improper venue “the
18 allegations in the complaint need not be accepted as true, and the court may consider
19 evidence outside the pleadings.” Allstar Mktg. Group, LLC v. Your Store Online,
20 LLC, 666 F.Supp.2d 1109, 1126 (C.D. Cal. 2009) (citation omitted); Argueta v.
21 Banco Mexicano, S.A., 87 F.3d 320, 324-25 (9th Cir. 1996).
22 Alpha (or “Plaintiff”) is a Delaware Corporation that operates a racing car
23 series called Red Bull Global Rallycross (“GRC”). Colin Dyne is Alpha’s Chief
24 Executive Officer. (Decl. of Robert Weir (“Weir. Decl.”) ¶ 3; Compl. ¶¶ 2, 8.)2
25 Subaru, prior to 2018, had acted as an “Official Manufacturer Partner” of the GRC
26
1
See Declaration of Robert Weir ¶ 24, Exh. I thereto.
27 2
The energy drink company Red Bull is not a party to this action; it has only permitted
28 Alpha to use its name for the GRC series.
3
1 racing series pursuant to written corporate sponsorship agreements which contained

2 mandatory forum selection clauses calling for disputes to be resolved in New Jersey.
3
3 (See Weir Decl. ¶ 4, Exhibits A and B thereto at § 18.)
4 The 2016 and 2017 sponsorship agreements set forth in detail the material
5 terms of the parties’ agreement -- including the “Term” of the agreement, the
6 events giving rise to a right of “Termination,” the “Sponsorship Benefits” to which
7 Subaru is entitled, and the “Payment and Other Consideration” to be paid by Subaru.
8 (Id. ¶ 4, Exh. A §§ 1-4; Exh. B §§ 1-4.) For example, the agreed-upon sponsorship
9 fee in 2016 was $ and $ in 2017. (Id., Exh. A § 4(a), Exh. B § 4(a)).
10 Alpha and Subaru expressly agreed that each agreement “contains the entire
11 agreement between the parties” and that “[n]o variations, modifications, or changes
12 … are binding upon any party …. unless set forth in a document duly executed by
13 or on behalf of such parties." (Id., Exh. A § 19, Exh. B, § 19). They also agreed
14 that any disputes would be submitted “to the jurisdiction of the New Jersey state
15 and federal courts … and that the exclusive venue for resolution of such disputes
16 shall be state or federal courts located in Camden County, New Jersey.” (Id.,
17 Exh. A § 18, Exh. B § 18.)
18 Alpha omits from its Complaint any reference to these prior written
19 agreements, and instead attempts to manufacture an “oral contract” by alleging that
20 Subaru made “a firm and definite oral commitment” to “participate in the 2018
21 series” and also “agreed to run a third car in 2018.” (Compl. ¶¶ 37-43.) Even if
22 these allegations were true -- they are not -- conspicuously missing from
23 the Complaint are any allegations concerning the material terms of the alleged
24 “oral contract,” including how much Subaru would allegedly pay for its sponsorship
25 of the RBG event in 2018. This omission is no accident: Alpha, in its initial
26 proposed sponsorship agreement for 2018, sharply increased the sponsorship fee
27 3
All Exhibits referenced herein are attached to the Declaration of Rob Weir
28 submitted herewith.
4
1 from $ in 2017 to $ in 2018. (Weir Decl. ¶ 11, Exh. C.) It was this
2 proposed change to the material terms of the contract, along with other material
3 changes to the 2018 GRC series itself, that caused Honda, Volkswagen and other
4 sponsors who participated in the so-called “Supercar” events to reject Alpha’s
5 proposed sponsorship agreement and withdraw from the 2018 series. Given
6 Honda and Volkswagen’s departure, Subaru felt the only prudent business decision
7 was to reject Alpha’s proposal and withdraw from the 2018 series as well.
8 (See Weir Decl. ¶¶ 7-20, Exh. H.)
9 The 2017 GRC series involved twelve races that took place in a number of
10 cities throughout the United States and in Canada, with two races taking place in
4
11 New Jersey. (Weir Decl. ¶ 6.) Discussions between Colin Dyne, for Alpha, and
12 Subaru, represented by Robert Weir, concerning the 2018 GRC season began at the
13 race in Seattle, Washington in September 2017. (Id. ¶ 7.) The next month, at the
14 final race in Los Angeles on October 14, 2017, Mr. Weir spoke with drivers and
15 representatives of Honda and Volkswagen, who stated their intentions to participate
16 in the 2018 GRC season, although some expressed concerns about the cost of
17 participation. (Id. ¶ 8.) Based in part on those confirmations, and Mr. Weir’s
18 understanding that the terms for the 2018 series would not materially differ from
19 those agreed to in 2017, Mr. Weir expressed Subaru’s interest in participating in
20 the 2018 GRC season. (Compl. ¶ 35-37; Weir Decl. ¶ 9.) Two days later, on
21 October 16, 2017, Subaru issued a post-event press release from its corporate
22 offices in New Jersey stating that two of Subaru’s drivers would return for the
23 2018 season. (Compl. ¶¶ 38-39; Weir Decl. ¶ 10.)
24
25
4
The 2017 GRC series schedule was as follows: Round 1: Memphis, TN (April 29);
26 Round 2: Louisville, KY (May 21); Rounds 3 & 4: Thompson, CT (June 3, June 4);
27 Rounds 5 & 6: Canada (June 17 & 18); Round 7: Indianapolis, IN (July 9);
Rounds 8 & 9: Atlantic City, NJ (August 12 & 13); Rounds 10 & 11: Seattle, WA
28 (Sept. 9 & 10); Round 12: Los Angeles, CA (October 14).
5
1 On October 20, 2017, following the issuance of Subaru’s press release,

2 Alpha’s Chief Strategy Officer, Colby Rodriguez, sent an e-mail to Mr. Weir in
3 New Jersey containing Alpha’s proposal for the 2018 corporate sponsorship
4 agreement. (Weir Decl. ¶ 11, Exh. C.) For the first time, that proposal revealed
5 Alpha’s intention to significantly increase the sponsorship fee to roughly $
6 and change the fee structure that made previously optional fees mandatory. (Id.)
7 Subaru did not accept or endorse that proposal then, or at any other time: Mr. Weir
8 simply replied to that e-mail, stating “Thanks for sending … we’ll review internally
9 and come back with our thoughts/questions.” (Id., Exh. D.)
10 On November 16, 2017, Dyne called Mr. Weir at his Subaru office in
11 New Jersey, to inquire about the status of the 2018 agreement. Mr. Weir expressed
12 Subaru’s concerns about the number of cars to be fielded and the sharp increase in
13 the proposed sponsorship fee. Mr. Dyne acknowledged those concerns and the
14 two agreed to revisit the subject after the Thanksgiving holiday. (Id. ¶ 12.)
15 On December 5, 2017, Mr. Weir received an e-mail from Greg Lucia,
16 Director of Experiential Marketing at Volkswagen Group of America, Inc., a
5
17 New Jersey corporation headquartered in Virginia. That e-mail indicated that
18 Volkswagen had “significant concerns” about the 2018 GRC season and noted that
19 the increased sponsorship fee was “not something we can agree to at this point.”
20 (Weir Decl. ¶ 13, Exh. E.) Honda’s representative “echo[ed]” Volkswagen’s
21 concerns and noted that Dyne’s failure to provide “any real data” for 2018
22 “[s]ends up big red flags.” (Id.) On December 7, 2017, Mr. Weir sent an e-mail to
23 Mr. Rodriguez at Alpha expressing Subaru’s concerns about the number of cars
24 participating in the 2018 season and inquiring about what participants had been
25 confirmed for 2018. (Id. ¶ 14, Exh. F.)
26
5
27 “Volkswagen Group of America, Inc. is a New Jersey corporation with corporate
headquarters in Virginia.” Stragent LLC v. Audi AG, No. 6:10CV227 LED-JDL,
28 2011 WL 2912907, at *1 (E.D. Tex. July 18, 2011).
6
1 On December 18, 2017, Honda notified Colin Dyne and Colby Rodriguez
2 at Alpha, and Subaru and Volkswagen’s representatives, that Honda would not be
3 participating in the 2018 series. (Weir. Decl. ¶ 15.)
4 On January 16, 2018, an in-person meeting of representatives of Alpha,
5 Subaru, Volkswagen, and other race teams took place in Detroit, Michigan.
6 (Compl. ¶ 40; Weir Decl. ¶ 16). During that meeting, Alpha presented its plans for
7 the 2018 season, including an unverified car count, a tentative schedule, and
8 manufacturer’s media package offering. (Weir Decl. ¶ 17). Representatives of
9 Subaru and Volkswagen each expressed concerns about the shocking increase in
10 sponsorship fees and doubts about the projected car count, given that Honda had
11 withdrawn from the 2018 series. (Id.)
12 Contrary to Alpha’s false allegation -- that during the meeting in Detroit
13 Subaru “agreed to run a third car in 2018” “in exchange for a lower price for
14 participation in the 2018 series” (Compl. ¶¶ 42-43) -- Alpha’s representatives
15 insisted that Subaru and the other manufacturers compete with additional cars to
16 compensate for the smaller field, but did not offer a concession in the form of
17 reduced sponsorship fees. (Weir Decl. ¶ 17.) Ultimately, near the end of the
18 meeting, Volkswagen’s representatives stated that Volkswagen would not be
19 participating in the 2018 GRC season. (Compl. ¶ 59; Weir Decl. ¶ 17.) In response,
20 Subaru’s representative stated that it could not commit to the series at that time.
21 (Compl. ¶ 58; Weir Decl. ¶ 17.)
22 On January 22, 2018, Alpha sent Subaru a new “Follow Up” proposal which
23 provided yet another set of proposed terms for the 2018 GRC series. In that
24 proposal, Alpha recognized the legitimate “concern for the significant increase in
25 the proposed” fees for 2018 and offered to reduce the total fees to $
26 “by removing certain contents of the agreement, while also devaluing the overall
27 inventory.…” (Weir Decl. ¶ 18; Exh. G at p. 2.) Alpha asserted, however, that
28 “[t]his reduction comes with the understanding that the overall package will
7
1 increase starting in 2019.” (Id.) Alpha also admitted that the “shocking
2 news of Honda stepping back from the series” had “made things challenging for the
3 key teams/sponsors/drivers” and outlined a new car count with a list of several other
4 teams that would participate in the 2018 series to reach the “minimum of 10
5 supercars competing at every event.” (Id.; Exh. G at p. 3.) The proposal also stated
6 -- again belying Plaintiff’s false allegation that Subaru “committed itself to run
7 a third car in 2018” (Compl. ¶¶ 42-43) -- that Subaru would have the “option” to
8 run “2-3 cars” in the 2018 series. (Weir Decl. ¶ 18, Exh. G at p. 3.)
9 After receiving this new proposal, Subaru reached out to the identified
10 Supercar team stakeholders to confirm if they would in fact be participating in 2018.
11 However, Subaru was informed that, like Honda and Volkswagen, all but two of the
12 other Supercar team stakeholders were withdrawing from the 2018 GRC series.
13 (Weir Decl. ¶ 18.) Subaru had also received several reports that drivers and vendors
14 associated with Alpha’s GRC events had not been paid or paid timely (Id. ¶ 19.)
15 A few days later, on January 26, 2018, Mr. Weir informed Plaintiff by
16 e-mail that:
17 Regrettably, Subaru of America has decided to decline
the GRC MFG offering for 2018. We appreciate GRC’s
18 efforts to make concessions, but following the recent exit
19 of other MFG-supported programs from the series and
the concern of total supercar entries for 2018, we feel
20 there’s too much instability to present our factory racing
program for this season.
21
We respect this is tough news, and we wish the series
22 best of luck.
23
With Regards,
24
Rob.
25
26 (Weir Decl. ¶ 20, Exh. H).
27 ////
28 ////
8
1 III. ARGUMENT
2 A. The Parties' Consistent Agreement To New Jersey Venue
3 Supports Transfer Under 28 U.S.C. § 1404(a).
4 Section 1404(a) provides that “[f]or the convenience of parties and witnesses,
5 in the interest of justice, a district court may transfer any civil action to any other
6 district … where it might have been brought or to any district … to which all parties
7 have consented.” 28 U.S.C. § 1404(a). “This provision gives a district court broad
8 discretion to transfer a case to another district where venue is also proper.”
9 Allstar Mktg. Group, LLC, 666 F.Supp.2d at 1130 (citing Sparling v. Hoffman
10 Constr. Co., 864 F.2d 635, 639 (9th Cir. 1998)). District courts are required to
11 “adjudicate motions for transfer [of venue] according to an ‘individualized, case-by-
12 case consideration of convenience and fairness.’” Id. (quoting Jones v. GNC
13 Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000)).
14 In 2013, the U.S. Supreme Court clarified that a forum-selection clause may
15 support a motion to transfer venue under 28 U.S.C. § 1404(a). Atl. Marine Constr.
16 Co. Inc. v. U.S. Dist. Court, 571 U.S. 49, 134 S. Ct. 568, 581 (2013). The Court
17 made clear that “[w]hen the parties have agreed to a valid forum-selection clause,
18 a district court should ordinarily transfer the case to the forum specified in that
19 clause. Only under extraordinary circumstances unrelated to the convenience of
20 the parties should a § 1404(a) motion be denied.” Id. The Court further instructed
21 that the plaintiff, “as the party defying the forum-selection clause … bears the
22 burden of establishing that transfer to the forum for which the parties bargained is
23 unwarranted.” Id. This burden is high: as this Court recently explained, it
24 typically requires “evidence submitted by the party opposing enforcement of the
25 [forum-selection] clause to establish fraud, undue influence, overweening
26 bargaining power, or such serious inconvenience in litigating in the selected forum
27 so as to deprive that party of a meaningful day in court.” Jocer Enterprises, Inc. v.
28 Compass Constr., Inc., No. 17-cv-01219-MWF (KKx), 2017 WL 4011134 at *2
9
1 (C.D. Cal. Sept. 12, 2017) (quoting Pelleport Inv’rs, Inc. v. Budco Quality
2 Theatres, Inc., 741 F.2d 273, 280 (9th Cir. 1984)).
3 Here, throughout Alpha's and Subaru's dealings with respect to the GRC
4 racing sponsorships, Alpha repeatedly and consistently agreed that any disputes
5 between the parties would be submitted to the “jurisdiction of the New Jersey state
6 and federal courts … and that the exclusive venue for resolution of such disputes
7 shall be state or federal courts located in … New Jersey.” (Weir Decl. ¶ 4, Exh. A
8 § 18; Exh. B § 18.) The gravamen of Alpha’s complaint is a claim for “breach of
9 oral contract” involving, effectively, an alleged promise by Subaru to continue
10 sponsorship of the GRC series in 2018. Thus, by Plaintiff’s own admission, and
11 the core contention by which Plaintiff seeks to maintain this action, the parties’
12 prior course of dealing in their written sponsorship agreements, including the
6
13 mandatory New Jersey venue clause, is necessarily implicated. Because there is
14 no set of circumstances here -- much less “extraordinary circumstances” -- that
15 would justify abrogating Plaintiff’s consistent agreement to litigate any disputes in
16 state or federal courts in New Jersey, this entire action should be transferred to the
17 U.S. District for the District of New Jersey. See, e.g., Almont Ambulatory Surgery
18 Center, LLC v. UnitedHealth Group, Inc., No. CV-14-02139-MWF (VBKx),
19 2015 WL 12733443 at *7 (C.D. Cal. April 10, 2015) (“Notably, § 1404 allows
20 only for the transfer of an entire ‘civil action.’”) (citing Chrysler Credit Corp. v.
21 Country Chrysler, Inc., 928 F.2d 1509, 1518 (10th Cir. 1991) (“Section 1404(a)
22 only authorizes the transfer of an entire action, not individual claims.”))
23 ////
24 ////
25 ////
26
6
Even assuming that an oral agreement existed to extend or renew the Subaru
27 sponsorship for 2018, nothing has been alleged to suggest that the New Jersey venue
for resolution of disputes concerning that agreement has been changed.
28
10
1 B. The Typical § 1404(a) Factors Also Require Transfer

2 to New Jersey.
3 Although Plaintiff’s consistent agreement to abide by a New Jersey forum-

4 selection clause relieves this Court of its typical obligation to conduct a full
7
5 § 1404(a) analysis, other factors also support transfer of this action to the
6 District of New Jersey.
7 When evaluating a typical § 1404(a) motion to transfer venue that does
8 not involve a forum-selection clause, the Court must examine: (1) whether an
9 adequate alternative forum exists, and (2) whether the balance of private and public
10 factors favors dismissal. See Atl. Marine, 134 S.Ct. at 581; Piper Aircraft Co. v.
11 Reyno, 454 U.S. 235, 254 n.22, 257 (1981). The “private interest” factors include:
12 (1) the residence of the parties and witnesses; (2) the forum’s convenience to the
13 litigants; (3) access to physical evidence and other sources of proof; (4) whether
14 unwilling witnesses can be compelled to testify; (5) the cost of bringing witnesses
15 to trial; (6) the enforceability of the judgment; and (7) “[a]ll other practical
16 problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil
17 Corp. v. Gilbert, 330 U.S. 501, 504 (1947); Contact Lumber Co. v. P.T. Moges
18 Shipping Co., 918 F.2d 146, 1449 (9th Cir. 1990). The “public-interest” factors
19 include: (1) local interest in the lawsuit; (2) the court’s familiarity with the
20 governing law; (3) burden on local courts and juries; (4) congestion in the court;
21 and (5) the costs of resolving a dispute unrelated to this forum. Piper Aircraft,
22 454 U.S. at 259–61. A district court must weigh these favors and decide “whether,
23 on balance, a transfer would serve the convenience of the parties and witnesses”
24 and otherwise promise “the interests of justice.” Atl. Marine, 134 S.Ct. at 581.
25
7
See, e.g., Endonovo Therapeutics, Inc. v. New Paradigm Ventures, Inc., No. CV-16-
26 07433-MWF(FFM), 2017 WL 3049560 at * 2 (C.D. Cal. Jan. 5, 2017) (“In the typical
27 case not involving a forum-selection clause, a district court considering a § 1404(a)
motion … must evaluate both the convenience of the parties and various public-interest
28 considerations.”) (citing Atl. Marine, 134 S.Ct. at 581.)
11
1 1. An Adequate Alternative Forum Exists.

2 An adequate alternative forum exists when the defendant is amenable to
3 service of process in the foreign forum. Piper Aircraft, 454 U.S. at 254 n.22;
4 Contact Lumber Co., 918 F.2d at 1449. Subaru is a New Jersey corporation with its
5 principal place of business in New Jersey. (Compl. ¶ 3; Weir Decl. ¶ 2.) Subaru is
6 therefore subject to service of process in the District of New Jersey, which is plainly
7 an adequate alternative forum.
8 2. The Private and Public Factors Favor Transfer.
9 A balance of the private and public factors favors transfer of this case to the
10 District of New Jersey.
11 (a) Subaru and Key Witnesses Reside in New Jersey.
12 Subaru is a citizen of New Jersey. (Compl. ¶ 3; Weir Decl. ¶ 2.) Similarly,
13 all or a majority of the potential witnesses from Subaru reside in New Jersey or in
14 the nearby Philadelphia metro area. (Weir Decl. ¶¶ 21-23.) Other witnesses
15 located outside the subpoena range of this Court are also likely more readily
16 available in New Jersey, in part because Volkswagen is a New Jersey corporation
17 subject to service of process there, and in part because of New Jersey’s geographic
18 location relative to Virginia where Volkswagen is headquartered. (Id. ¶ 13);
19 Stragent LLC v. Audi AG, No. 6:10-cv-227 LED-JDL, 2011 WL 2912907 at *1
20 (E.D. Tex. July 18, 2011) (“Volkswagen Group of America, Inc. is a New Jersey
21 corporation with corporate headquarters in Virginia.”) “The convenience of the
22 witnesses is often the most important factor considered by the court when deciding
23 a motion to transfer for convenience.” Steelcase, Inc. v. Haworth, Inc., No. CV
24 96-1964 JGD (AJWx), 1996 WL 806026, at *3 (C.D. Cal. May 15, 1996);
25 accord Geo. F. Martin Co. v. Royal Ins. Co. of Am., No. C03-5859, 2004 WL
26 1125048, at *3 (N.D. Cal. May 14, 2004).
27 ////
28 ////
12
1 (b) New Jersey is a More Convenient Forum.

2 New Jersey is a more convenient forum because Subaru’s witnesses are
3 located there and because it is geographically closer to Virginia, where likely key
4 witnesses from Volkswagen are located. (Weir Decl. ¶¶ 21-23.) Alpha has also
5 chosen New Jersey as one of the locations for its 2017 and 2018 racing series,
6 confirming that New Jersey is a convenient forum for Alpha and its officers and
7 employees including Colin Dyne. (See Compl. ¶ 10; Weir Decl. ¶ 6.)
8 (c) Relevant Evidence is Located in New Jersey.
9 Plaintiff’s claims rely on alleged “oral” statements made by Subaru and/or
10 Volkswagen employees, all of whom reside in or near New Jersey and Virginia.
11 Thus, the relevant evidence in this action -- most of which is testimony concerning
12 the alleged statements -- is located in or near New Jersey. Furthermore, while
13 Subaru flatly denies Plaintiff’s self-serving allegation that there were discussions
14 with an “unnamed” “Co-conspirator Co.” (Compl. ¶ 47) any evidence of these
15 alleged discussions would be located in New Jersey, not California.
16 (d) Unwilling Witnesses Cannot be Compelled to
Testify in California.
17
18 Unwilling witnesses (such as lower level employees of Subaru) cannot be
19 compelled to travel to California to testify in depositions or at trial.
20 (e) The Cost of Bringing Witnesses to Trial in
California is Higher Than New Jersey.
21
22 It will be more expensive to bring Subaru’s witnesses (which likely
23 outnumber Plaintiff’s witnesses) to California than it would if those same witnesses
24 testified in New Jersey, where they reside and/or work. Further, it would be more
25 expensive for Volkswagen witnesses located in Virginia to travel to California as
26 compared to New Jersey. By contrast, Alpha and its witnesses -- in particular
27 Colin Dyne -- have shown that they are willing and able to travel to New Jersey,
28 which is one of the locations of the 2017 and 2018 GRC racing series in addition to
13
1 multiple other locations throughout the United States and internationally.

2 (See Compl. ¶ 10; Weir Decl. ¶ 6.)
3 (f) The Enforceability of the Judgment is not an Issue.
4 This factor is neutral. Judgments from either the Central District of
5 California or the District of New Jersey would be enforceable provided any
6 judgment is properly domesticated.
7 (g) The Court’s Familiarity with Governing Law is
Neutral.
8
9 This factor is neutral. The case involves common law causes of action that
10 federal courts in California and New Jersey routinely resolve.

11 C. Venue Is Also Improper in California Requiring Dismissal
12 Pursuant to 28 U.S.C. § 1406(a) and Fed. R. Civ. P. 12(b)(3).
13 In contrast to a motion to transfer venue under § 1404(a), an action must be

14 dismissed or transferred pursuant to 28 U.S.C. § 1406(a) and Fed. R. Civ. P.
15 12(b)(3) when venue is improper in the district court where the action was filed.
16 The Plaintiff bears the burden to properly plead and establish that venue is proper.
17 Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979).
18 “When the plaintiff asserts multiple claims, it must establish that venue is proper
19 as to each claim.” Kaia Foods, Inc. v. Bellafiore, 70 F. Supp. 3d 1178, 1183
20 (N.D. Cal. 2014).
21 In general, venue is proper only in: (1) a judicial district in which the
22 defendant resides; or (2) a judicial district in which a “substantial part of the events
23 or omissions” took place. 28 U.S.C. § 1391(b). Plaintiff alleges that “[v]enue
24 is proper in this judicial district pursuant to 28 U.S.C. § 1391 because a substantial
25 part of the events or omissions giving rise to the claim occurred in the Central
26 District and because Subaru is subject to the Court’s personal jurisdiction in this
27 District.” (Compl. ¶ 7.)
28
14
1 It is undisputed that Subaru is a New Jersey corporation with its principal

2 place of business there (Compl. ¶ 3; Weir Decl. ¶ 2) making venue in this district
3 improper under § 1391(b)(1). See Bristol-Myers Squibb Co. v. Superior Court,
4 582 U.S , 137 S. Ct. 1773, 1780 (2017); Daimler AG v. Bauman, 571 U.S 117 __,
5 134 S. Ct. 746, 760 (2014) (a corporate defendant is only “at home” in its (1) state
6 of incorporation or (2) principal place of business.) Under § 1391(b)(2), for venue
7 to be proper in this district significant events material to Plaintiff’s claim must have
8 occurred within this district. See Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353 (2d Cir.
9 2005) (“[W]e caution district courts to take seriously the adjective ‘substantial.’”).
10 Plaintiff’s Complaint fails to satisfy this strict requirement. Plaintiff’s only
11 allegation with respect to California is that in connection with a single, discrete
12 race that took place in Los Angeles, Subaru made an “oral commitment” that it
13 “would participate in the 2018 series.” (Compl. ¶ 35-37; 84.) But neither the 2017
14 nor the 2018 series has been centered in Los Angeles. Each of the series involves
15 races occurring in cities throughout the United States including New Jersey.
16 (Compl. ¶ 10; Weir Decl. ¶ 6.) All other allegations concerning the alleged oral
17 agreement and other conduct forming the basis for Plaintiff’s claims took place
18 outside of California, i.e. a press release that “originated from” Subaru at its
19 headquarters in New Jersey (Compl. ¶ 38) and the negotiations and alleged oral
20 commitment “to run a third car” in 2018 during meetings held in Detroit, Michigan.
21 (Compl. ¶¶ 40-43.) These allegations fail to satisfy Plaintiff’s burden of showing
22 that “substantial” or “significant” events occurred within this judicial district.
23 Nor is Plaintiff’s alleged location in California sufficient -- the “mere fact that [a
24 defendant’s] conduct affected [a plaintiff] with connections to the forum State does
25 not suffice to authorize jurisdiction.” Walden v. Fiore, 134 S.Ct. 1115, 1126 (2014).
26 Accordingly, Plaintiff’s complaint is subject to dismissal or transfer to New Jersey
27 for improper venue under Rule 12(b)(3).
28
15
1 D. Alternatively, the Entire Action Should Be Dismissed for Failure

2 to State a Claim Pursuant to Rule 12(b)(6).
3 To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege

4 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
5 v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard . . . asks for
6 more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.
7 Iqbal, 556 U.S. 662, 678 (2009). The facts alleged must “allow[] the court to draw
8 the reasonable inference that the defendant is liable for the misconduct alleged.”
9 Id. “[C]onclusory allegations of law and unwarranted inferences are insufficient to
10 defeat a motion to dismiss.” Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001);
11 see also Twombly, 550 U.S. at 555 (a pleading is insufficient if it provides only
12 “labels and conclusions,” “a formulaic recitation of the elements of a cause of
13 action,” or “naked assertions devoid of further factual enhancement”) (internal
14 quotations and brackets omitted).
15 1. Plaintiff Fails to State a Claim for Breach of Oral Contract.
16 To state a claim for breach of an oral contract, a plaintiff must allege
17 (1) the existence of a contract, (2) plaintiff’s performance, (3) defendant’s breach,
18 and (4) damages. See McDonald v. John P. Scripps Newspaper, 210 Cal.App.3d
19 100, 104 (Cal. App. 1989). “[T]o prove the existence of a contract, a plaintiff must
20 show: (1) parties capable of contracting, (2) the parties’ consent, (3) a lawful
21 object, and (4) consideration.” G.P.P., Inc. v. Guardian Prot. Prod., Inc., No.
22 1:15-CV-00321-SKO, 2017 WL 220305, at *18 (E.D. Cal. Jan. 18, 2017), on
23 reconsideration in part, No. 1:15-CV-00321-SKO, 2017 WL 698335 (E.D. Cal.
24 Feb. 21, 2017). A mere promise to do something in the future without agreement
25 on all material terms is not sufficient to form an oral contract. See Ablett v.
26 Clauson, 43 Cal.2d 280, 285 (Cal. 1954) (“[I]f an essential element is reserved for
27 future agreement of both parties, the promise can give rise to no legal obligation
28 until such future agreement. Since either party by the terms of the promise may
16
1 refuse to agree to anything to which the other party will agree, it is impossible for
2 the law to affix any obligation to such a promise.”)
3 Plaintiff fails to plead that a contract was formed with respect to Subaru’s
4 participation in the 2018 season. First, Plaintiff alleges that Mr. Weir made
5 statements in October 2017 to the effect that Subaru’s goal was to return to the
6 GRC and win the manufacturer’s title in 2018. (Compl. ¶¶ 39–40.) Those
7 statements do not establish a binding contract. They were made before the written
8 2017 sponsorship agreement had expired, contain no statements demonstrating an
9 exchange of consideration, and do not state that the parties had reached an
10 agreement for the 2018 season. (Id.) At most, those comments were an
11 aspirational expression of interest that cannot give rise to a contract. See Language
12 Door Inc. v. MyAsia LLC, No. SA CV13-01220-JVS (RNBs), 2014 WL 12690753,
13 at *3 (C.D. Cal. Jan. 6, 2014) (“It is also well-established that accepting an offer to
14 make a contract in the future, the terms of which are subject to future negotiation,
8
15 does not create a valid contract.”).
16 Next, Plaintiff alleges that at the January 16, 2018 meeting in Detroit,
17 Subaru “agreed” and “committed itself to run a third car in the 2018 [GRC] series.”
18 (Compl. ¶¶ 41-42.) However, the Complaint’s conspicuous lack of details with
19 respect to the material terms of that supposed “oral contract” belie that allegation.
20 For example, no details are pleaded with respect to the most important terms that
21 would be expected of such an agreement, including the amount of the sponsorship
22 fee that Subaru purportedly agreed to pay, when that payment was due, the
23 duration of the agreement, the effective date of agreement, or when Subaru was
24 required to perform under the oral agreement. (See Compl. ¶¶ 40–43.) Without
25
8
26 ofSee also 1 Arthur L. Corbin, Corbin on Contracts § 1.15 (rev. ed. 2005) (“A statement
intention is the mere expression of a state of mind, put in such form as neither to
27 invite nor to justify action in reliance by another person.”); Restatement (Second) of
Contracts § 2 cmt. f (“A promise must be distinguished from a statement of opinion or
28 a mere prediction of future events.)
17
1 pleading these material terms, Plaintiff fails to state a claim for an enforceable
2 oral agreement, particularly given the parties’ history of executing detailed written
3 agreements setting forth such express terms.
4 2. Plaintiff Fails to State a Claim for Promissory Estoppel.
5 “The elements of a promissory estoppel claim are (1) a promise clear and
6 unambiguous in its terms; (2) reliance by the party to whom the promise is made;
7 (3) [the] reliance must be both reasonable and foreseeable; and (4) the party
8 asserting the estoppel must be injured by his reliance.” Moore v. Wells Fargo Bank,
9 N.A., No. 14CV1342-GPC-RBB, 2014 WL 4355585, at *6 (S.D. Cal. Sept. 3, 2014).
10 Plaintiff cannot assert that its alleged reliance on any "promise" by Subaru to
11 sponsor the 2018 series was "reasonable," when Plaintiff admittedly changed the
12 material terms of that sponsorship after the alleged "promise" was made. Subaru,
13 at the time it made any alleged "commitments" to the 2018 series, had no
14 knowledge that Dyne planned to increase the price of that sponsorship to $
15 (an increase of more than percent), nor that other sponsors critical to the market
16 value of the race would withdraw following that price increase.
17 Where a promise is “vague, general or of indeterminate application,” the
18 promise “is not enforceable.” Aguilar v. Int’l Longshoremen’s Union Local #10,
19 966 F.2d 443, 446 (9th Cir. 1992). For that reason, Plaintiff’s allegation that
20 “Subaru promised … that it would participate in the … GRC 2018 series and run
21 three cars in the 2018 series” (Compl. ¶ 72) cannot support a claim for a
22 promissory estoppel. This allegation does not constitute a clear and unambiguous
23 promise and lacks the specific terms necessary to be enforceable. At most, the
24 parties’ communications about the 2018 series represent statements of intent made
25 during ongoing contract negotiations which do not create an enforceable promise.
26 See J.B. Enterprises Int’l, L.L.C. v. Sid & Marty Krofft Pictures Corp., No. CV 02-
27 7779 CBM (SHX), 2003 WL 21037837, at *4 (C.D. Cal. Mar. 3, 2003) (“The
28 Court finds that the Letter of Intent did not contain a clear and unambiguous offer
18
1 to complete the stock purchase, because it contemplated that the parties would
2 negotiate the Purchase Agreement.”).
3 3. Plaintiff Fails to State a Claim for Fraud.
4 The elements of fraud are (1) misrepresentation, (2) knowledge of falsity,
5 (3) intent to defraud, (4) plaintiff’s justifiable reliance, and (5) damages. Lazar v.
6 Superior Court, 12 Cal.4th 631, 638 (1996). Under Rule 9(b), a party alleging
7 fraud must state with particularity the circumstances constituting fraud. Fed. R.
8 Civ. P. 9(b); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003).
9 This must include more than just the facts necessary to identify the transaction, and
10 should include the “who, what, when, where, and how of the misconduct charged.”
11 Kearns v. Ford Motor Co., 567 F.3d 1120, 1124-25 (9th Cir. 2009). A mere
12 “formulaic recitation” of the general elements of a fraud claim does not satisfy
13 Rule 9(b)’s particularity requirement. Iqbal, 556 U.S. at 678.
14 Plaintiff’s Complaint fails to satisfy these pleading requirements. While
15 there are numerous details omitted from the Complaint which are necessary to
16 plead with specificity a fraud claim under Rule 9, Plaintiff’s failure to plead even
17 the most basic term of any representation by Subaru -- including the price that
18 Subaru purportedly agreed to pay to sponsor the 2018 event -- requires dismissal of
19 the fraud claim under the basic pleadings requirements of Rule 8. Ironically, the
20 facts suggest that it was Colin Dyne, not Subaru, who engaged in a fraudulent
21 "bait and switch" by encouraging Subaru to publicly endorse a 2018 series without
22 Dyne's disclosure of the myriad issues that Subaru needed to know before making
23 an informed decision. These include a more than percent sponsorship price
24 increase; the loss of other critical sponsors; and failure to timely pay vendors
25 which placed a cloud over the legitimacy of the event.
26 Plaintiff’s Complaint fails under Rule 9 because there are no specific
27 allegations as to “what” specifically was said by Subaru that was knowingly false.
28 Nor are there allegations about “how” Alpha could have relied on representations
19
1 concerning Subaru’s participation in 2018 when material terms had not been
2 negotiated and, in fact, Alpha radically changed the price of sponsorship and other
3 material aspects of the 2018 series after soliciting Subaru’s interest. (See Compl.
4 ¶¶ 82-85.) Plaintiff’s conclusory allegation made “on information and belief” about
5 an unnamed “Co-conspirator Co.” (Compl. ¶ 47) is the precise type of allegation that
6 Rule 9(b) is designed to prohibit. The allegation is not “specific enough to give
7 defendants notice of the particular misconduct … so that they can defend against the
8 charge and not just deny that they have done nothing wrong.” Vess, 317 F.3d at
9 1006. Accordingly, Count III of the Complaint must be dismissed.
10 4. Plaintiff Fails to State a Claim for Tortious Interference.
11 The elements of a claim for intentional interference with contractual
12 relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s
13 knowledge of this contract; (3) defendant’s intentional acts designed to induce a
14 breach or disruption of the contractual relationship; (4) actual breach or disruption
15 of the contractual relationship; and (5) resulting damage. Pac. Gas & Elec. Co. v.
16 Bear Stearns & Co., 50 Cal. 3d 1118, 1126 (1990).
17 Here, Plaintiff does not allege the existence of a contract with Volkswagen.
18 Instead, Plaintiff alleges that “Volkswagen Group of America raced through the team
19 Volkswagen Andretti Rallycross during the 2017 series as well as in years past”
20 and that “upon information and belief . . . Volkswagen Group of America intended
21 to continue to participate in the 2018 series and had made binding commitments to
22 [Plaintiff] to do so.” (Compl. ¶¶ 30, 95.) Plaintiff’s failure to plead an actual
23 contract with Volkswagen is fatal to its claim: “A plaintiff who hales a defendant
24 into court for interfering with a contract ought to know -- and plead -- the contract it
25 lost by the defendant’s actionable interference.” Snyder Insurance Servs., Inc. v.
26 Sohn, No. 16-cv-2535, at *7 (D. Kan. July 3, 2017); see also Yucesoy v. Uber Techs.,
27 Inc., 109 F. Supp. 3d 1259, 1265 (N.D. Cal. 2015) (dismissing tortious interference
28 claim where existence of express contract not alleged). Plaintiff faces the same
20
1 obstacle here as it does not, because it cannot, plead the specific material terms that
2 were reached with Volkswagen, because no agreement was in fact ever reached
3 with Volkswagen, which expressed its rejection of Plaintiff's price increase and
4 withdrawal from the 2018 series before Subaru. (See Weir Decl. ¶ 17.) Subaru
5 obviously had no knowledge of a non-existent contract, but such knowledge is also
6 a material element of a tortious interference claim.
7 Nor does the Complaint plead any facts suggesting how Subaru “successfully
8 and intentionally induced Volkswagen Group of America to abandon the 2018 …
9 GRC series.” (Compl. ¶ 64.) Rule 8 demands “more than an unadorned, the-
10 defendant-harmed-me accusation.” Iqbal, 556 U.S. at 678. Plaintiff’s “naked
11 assertion[s]” of harm “devoid of ‘further factual enhancement’” are insufficient to
12 state a tortious interference claim. Id. (alteration in original) (citing Twombly,
13 550 U.S. at 557).
14 IV. CONCLUSION
15 For the foregoing reasons, Subaru respectfully requests that the Court dismiss
16 this case for improper venue or, in the alternative, transfer venue to the United
17 States District Court for the District of New Jersey. Alternatively, Subaru
18 respectfully requests this Court to dismiss the Complaint pursuant to Federal Rule
19 of Civil Procedure 12(b)(6) for failure to state a claim.
20
21 DATED: April 6, 2018 Peter L. Haviland
Scott S. Humphreys
22 BALLARD SPAHR LLP
23
/s/ Scott S. Humphreys
24 Scott S. Humphreys
26 SUBARU OF AMERICA, INC.
27
28
21
1 CERTIFICATE OF SERVICE
2 I certify that on this 6th day of April 2018, I filed a true and correct copy of
3 the foregoing SUBARU’S NOTICE OF MOTION AND MOTION TO (i)
4 TRANSFER OR DISMISS FOR IMPROPER VENUE; (ii) DISMISS FOR
5 FAILURE TO STATE A CLAIM; MEMORANDUM OF POINTS AND
6 AUTHORITIES; AND DECLARATION OF ROBERT WEIR AND EXHIBITS
7 IN SUPPORT THEREOF electronically through the Court’s CM/ECF system,
8 which will send notice of the electronic filing to Plaintiff Alpha GRP. Inc. d/b/a
9 Red Bull Rallycross via its counsel of record:
10
EAGAN AVENATTI, LLP
11
Michael J. Avenatti
12 Ahmed Ibrahim
520 Newport Center Drive, Suite 1400
13
Newport Beach, CA 92660
14 mavenatti@eaganavenatti.com
aibrahim@eaganavenatti.com
15
16 Counsel for Plaintiff ALPHA GRP, INC.,
d/b/a RED BULL GLOBAL RALLYCROSS
17
18
19 /s/ Scott S. Humphreys
Scott S. Humphreys
20
21
22
23
24
25
26
27
28
1
Case 2:18-cv-02133-MWF-MRW Document 7-1 Filed 04/06/18 Page 1 of 8 Page ID #:61
1 Peter L. Haviland, 144967 REDACTED VERSION OF

havilandp@ballardspahr.com DOCUMENT PROPOSED TO
2 Scott S. Humphreys, 298021 BE FILED UNDER SEAL
humphreyss@ballardspahr.com
3 BALLARD SPAHR LLP
2029 Century Park East, Suite 800
4 Los Angeles, CA 90067-2909
Telephone: 424.204.4400
5 Facsimile: 424.204.4350
SUBARU OF AMERICA, INC.
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
12 ALPHA GRP, INC. Case No. 2:18-cv-02133-MWF
13 Plaintiff, DECLARATION OF ROBERT WEIR
IN SUPPORT OF SUBARU’S
14 v. MOTION TO TRANSFER OR
DISMISS PLAINTIFF’S
15 SUBARU OF AMERICA, INC. COMPLAINT
16 Defendant.
Judge: Hon. Michael W. Fitzgerald
17 Date: May 14, 2018
18 Time: 10:00 a.m.
Place: Courtroom 5A
19
350 West First Street,
21
22
23
24
25
26
27
28
DMWEST #17606039 v1
DECLARATION OF ROBERT WEIR IN SUPPORT OF SUBARU’S MOTION TO TRANSFER
OR DISMISS PLAINTIFF’S COMPLAINT
1 I, Robert Weir declare as follows:

2 1. I am the Motorsports Manager at Subaru of America, Inc. (“Subaru”).
3 I have personal knowledge of the facts set forth in this Declaration, and, if called as
4 a witness, could and would testify competently to such facts.
5 2. Subaru is incorporated under the laws of New Jersey with its principal
6 place of business at 2235 Marlton Pike W., Cherry Hill, New Jersey, 08002.
7 3. From 2014 through 2017, Subaru participated in the Red Bull Global
8 Rallycross (“GRC”) series as an “Official Manufacturer Partner.” The Plaintiff in
9 the above-entitled action, Alpha GRP, Inc. d/b/a Red Bull Global Rallycross
10 (“Alpha”) is a Delaware Corporation that owns and operates the GRC series.
11 Alpha’s Chief Executive Officer is Colin Dyne.
12 4. In each year that Subaru participated in the GRC series as an
13 Official Manufacturer Partner, Subaru and Alpha memorialized the terms of their
14 agreement for that year’s GRC series in a written corporate sponsorship agreement.
15 True and correct copies of the corporate sponsorship agreements for the years
16 2016 and 2017 are attached hereto as Exhibit A and Exhibit B, respectively.
17 As stated in Section 4(a) of those agreements, the sponsorship fee in 2016 was
18 $ and $ in 2017.
19 5. Subaru has not entered into an oral sponsorship contract with Alpha
20 or any of its representatives, including but not limited to Colin Dyne.
21 6. The 2017 GRC series was comprised of twelve races that took place
22 in numerous cities throughout the United States and in Canada. The 2017 GRC
23 series schedule was as follows: Round 1: Memphis, TN (April 29), Round 2:
24 Louisville, KY (May 21); Rounds 3 & 4: Thompson, CT (June 3, June 4);
25 Rounds 5 & 6: Canada (June 17 & 18); Round 7: Indianapolis, IN (July 9);
26 Rounds 8 & 9: Atlantic City, NJ (August 12 & 13); Rounds 10 & 11: Seattle, WA
27 (Sept. 9 & 10); Round 12: Los Angeles, CA (October 14).
28
DMWEST #17606039 v1
1 7. In September 2017, I attended the GRC race in Seattle, Washington.

2 During that event, Colin Dyne, the CEO of Alpha approached me to discuss the
3 future of the GRC series.
4 8. At the next and final GRC race in Los Angeles on October 14, 2017,
5 I spoke with Andreas Eriksson of the Honda Red Bull Team who confirmed that
6 he had support from both Honda and Red Bull to return to the series in 2018.
7 However, he explained that he only had a budget large enough to enter two cars in
8 the series and that he had lost money running the 2017 GRC series. I also spoke
9 with Volkswagen drivers Tanner Foust and Scott Speed who stated they believed
10 they would be returning for the 2018 GRC series. I also spoke with Sean Jones
11 from Bryan Herta Autosport at the event. Mr. Jones stated that 2017 was
12 financially difficult for their program, and their current Ford Fiesta Supercar was
13 falling behind in development. Mr. Jones was apprehensive about continuing in
14 GRC in 2018.
15 9. Based on those conversations, Subaru had some concerns about the
16 car count for the 2018 season. However, based on Honda and Volkswagen’s
17 stated intent to participate in the 2018 season, and my understanding that Alpha’s
18 terms for participation in the 2018 series would not materially differ from those
19 agreed to in 2017, I expressed Subaru’s interest in participating in the 2018 GRC
20 series as an Official Manufacturer Partner.
21 10. On or about October 16, 2017, Subaru issued a post-event press
22 release from its corporate offices in Cherry Hill, New Jersey, which stated, among
23 other things, that Subaru drivers Patrik Sandell and Chris Atkinson would return
24 for the 2018 GRC season.
25 11. On or about October 20, 2017, I received an e-mail sent to my
26 Subaru corporate e-mail address at my office in Cherry Hill, New Jersey, that
27 attached Alpha’s proposed sponsorship agreement for the 2018 GRC series.
28 A true and correct copy of that e-mail and proposed agreement is attached hereto as
DMWEST #17606039 v1
1 Exhibit C. That proposal revealed, for the first time, Alpha’s intention to increase
2 the total fees for the 2018 GRC series to $ , which included a change to
3 the fee structure that made previously optional fees mandatory. In 2017, the total
4 fees for the GRC series were roughly $ which included a mandatory
5 $ certificate of compliance fee and an optional $ sponsorship fee.
6 In 2018, Alpha proposed to increase the sponsorship fee from $ to roughly
7 $ and to make that sponsorship fee mandatory. I did not accept or endorse
8 that proposal on behalf of Subaru then or at any other time. I simply replied to that
9 e-mail on October 23, 2017, stating: “Thanks for sending the respective proposals
10 for 2018/2019, we’ll review internally and come back with our thoughts/questions.”
11 A true and correct copy of that e-mail is attached hereto as Exhibit D.
12 12. On or about November 16, 2017, Mr. Dyne called me at my Subaru
13 office in Cherry Hill, New Jersey to inquire about the proposed 2018 agreement.
14 During that call, I expressed my concerns about the number of cars to be fielded by
15 manufacturers and the sharp increase in the proposed sponsorship fee. Mr. Dyne
16 acknowledged these concerns and we agreed to revisit the subject after the
17 Thanksgiving holiday.
18 13. On December 5, 2017, I received an e-mail from Greg Lucia, the
19 Director of Experiential Marketing at Volkswagen of America, Inc.
20 (“Volkswagen”), which is headquartered in Virginia. Mr. Lucia stated that the
21 increased fees for the 2018 GRC series “is a concern for us and not something we
22 can agree to at this point” and that “[t]here are significant concerns on our end as to
23 the stability of GRC for 2018, and I expressed those concerns to Colin [Dyne].”
24 Alicia Jones, the National Advertising Manager for American Honda Motor
25 Company, Inc. (“Honda”), responded to that e-mail, stating: “[W]e echo your
26 significant concerns. I have given upon on getting any real data from Colin/GRC.
27 Sends up big red flags that it isn’t readily provided.” A true and correct copy of
28 that e-mail is attached hereto as Exhibit E.
DMWEST #17606039 v1
1 14. On December 7, 2017, I sent an e-mail to Alpha’s Chief Strategy

2 Officer, Colby Rodriguez, expressing concerns about the number of cars that
3 would participate in 2018. A true and correct copy of that e-mail is attached
4 hereto as Exhibit F.
5 15. On December 18, 2017, Honda’s representative informed me and
6 Greg Lucia at Volkswagen that Honda would not be participating in the 2018
7 GRC series and that Honda had notified Colin Dyne and Colby Rodriguez at
8 Alpha of that fact that same day.
9 16. On January 16, 2018, I attended an in-person meeting in Detroit,
10 Michigan that was attended by: Colin Dyne, Colby Rodriguez, Jeff Swoboda for
11 Alpha; Michael Gibbs and Helmut Wahl for Red Bull; myself and Michael McHale
12 for Subaru; Lance Smith and Chris Yandell for Subaru Rally Team USA; and
13 Sven Smeets and Greg Lucia for Volkswagen; Andreas Eriksson for OMSE and;
14 Steve Arpin for OMSE.
15 17. During that January 16, 2018 meeting in Detroit, Alpha presented its
16 racing plans for the 2018 season, an unverified car competitor count, a tentative
17 schedule, and its proposed manufacturer media package offering. Subaru and
18 Volkswagen expressed concern with the huge increase in sponsorship fees and that
19 the 2018 media offering was an unexpected blow to program budgets, which did
20 not provide enough market value according to third party valuations. Subaru,
21 Volkswagen, and other attendees also expressed concerns about the accuracy of
22 the car count and lack of manufacturer participation given that Honda
23 had announced its withdrawal from the 2018 GRC series on December 18, 2018.
24 We explained that we did not want the 2018 series to be only “Subaru vs.
25 Volkswagen.” In response, Alpha representatives insisted that the manufacturers
26 compete with additional cars to compensate for the smaller field but did not offer a
27 concession in the form of reduced sponsorship fees. Near the end of this meeting,
28 Greg Lucia of Volkswagen informed the attendees that Volkswagen would not
DMWEST #17606039 v1
1 renew its manufacturer’s agreement with GRC or enter a team in the 2018 series.
2 Following this announcement, Mr. McHale informed Alpha’s representatives and
3 the other attendees that Subaru could not commit to the series at that time.
4 18. On January 22, 2018, Colby Rodriguez and Colin Dyne at Alpha
5 sent me an e-mail attaching a “Follow Up” proposal to the January 16, 2018
6 meeting in Detroit. A true and correct copy of that e-mail and proposal is attached
7 hereto as Exhibit G. In the proposal, Alpha stated that it “understands the concern
8 for the significant increase in the proposed” fees for the 2018 series and offered to
9 reduce the total fees to $ “by removing certain contents of the agreement,
10 while also devaluing the overall inventory to make the investment similar to 2017.”
11 (Exh. G, at p. 2.) However, Alpha stated that “[t]his reduction comes with the
12 understanding that the overall package will increase starting in 2019.”
13 (Id.) Alpha also recognized that the “shocking news of Honda stepping back from
14 the series last year made things challenging for the key teams/sponsors/drivers”
15 and outlined a new car count for 2018 which stated that Subaru would have the
16 “option” to run “2-3 cars” and listed several other teams that would participate in
17 2018 to reach the “minimum of 10 supercars competing at every event.”
18 (Id. at p. 3.) After receiving this proposal, Subaru reached out to these identified
19 Supercar team stakeholders to confirm whether they would in fact be participating
20 in the 2018 GRC series. However, Subaru was informed that, like Honda and
21 Volkswagen, all but two of the other Supercar team stakeholders would not be
22 participating in the 2018 GRC series.
23 19. I had also received several reports that drivers and vendors associated
24 with Alpha's GRC racing events had not been paid or paid timely. In December
25 2017 and/or January 2018, Greg Lucia from Volkswagen reported that Colin Dyne
26 had not paid Volkswagen driver Scott Speed the money he was owed, and private
27 driver Steve Arpin separately reported that Colin Dyne had not paid him the money
28 he was owed. Subaru's rallycross partner, Vermont SportsCar, forwarded me
DMWEST #17606039 v1
1 reports published in Canadian media outlets that approximately six months had
2 passed before Rockcliffe Flying Club in Ottowa was paid for its July 2017 event.
3 20. On or about January 26, 2018, based primarily on the fact that Honda,
4 Volkswagen and the majority of other Supercar team stakeholders had confirmed
5 that they would not be participating in the 2018 GRC series, I sent an e-mail on
6 behalf of Subaru to Colin Dyne at Alpha, which informed Alpha that Subaru had
7 decided not to accept Alpha’s offer to participate in the 2018 GRC series. A true
8 and correct copy of that e-mail is attached hereto as Exhibit H.
9 21. I reside in Wallingford, Pennsylvania, approximately 25 miles from
10 Subaru’s corporate headquarters in Cherry Hill, New Jersey. I, along with other
11 Subaru personnel involved in the decision to not accept Alpha’s proposed offer
12 for the 2018 GRC series, all work at Subaru’s headquarters in Cherry Hill,
13 New Jersey. All of those Subaru personnel reside in New Jersey or in the nearby
14 Philadelphia metro area.
15 22. At no point did I travel to California for the purpose of negotiating a
16 2018 Corporate Sponsorship Agreement with Alpha.
17 23. It would be much more convenient for me and all other Subaru
18 employees with knowledge relevant to the matters set forth herein to attend or
19 testify at depositions or a trial held in New Jersey, instead of California.
20 24. On or about March 14, 2018, I received a text message from Alpha’s
21 Chief Executive Officer, Colin Dyne. A true and correct copy of that text message
22 is attached hereto as Exhibit I.
23 25. On March 22, 2018, counsel for Subaru sent a cease and desist letter
24 to counsel for Alpha and Colin Dyne, a true and correct copy of which is
25 attached hereto as Exhibit J. As of the date of this declaration no response has
26 been received.
27 ////
28 ////
DMWEST #17606039 v1

EXHIBIT A
[PROPOSED SEALED DOCUMENT
LODGED WITH THE COURT]


EXHIBIT B


EXHIBIT C

From: "Weir, Robert" <rwei@SUBARU.com>

Date: Monday, October 23, 2017 at 10:39 AM
To: Colby Rodriguez <crodriguez@redbullglobalrallycross.com>
Cc: Colin Dyne <cdyne@redbullglobalrallycross.com>
Subject: RE: 2018 Auto Manufacturer Partnership Agreement
Hey Guys,
Nice job with LA. We would love to see that level of presentation and turnout at every round
next year.
Thanks for sending the respective proposals for 2018/2019, we’ll review internally and come
back with our thoughts/questions.
Any further information you can share on the following would help me during our review:
-2018 locations
-Expected/confirmed MFG’s for 2018
-List of Supercar competitors for 2018
-When you expect to share the news on your digital partner
Regards,
Rob
Rob Weir | Motorsports Manager | Subaru of America, Inc. | o. 856.488.3453 |
rweir@subaru.com
Weir, Robert
From: Alicia Jones <alicia_jones@ahm.acura.com>

Sent: Tuesday, December 5, 2017 1:24 PM
To: Lucia, Greg; Weir, Robert
Subject: RE: VW / Honda GRC Intro
We echo your significant concerns. I have given up on getting any real data from Colin/GRC. Sends up big red flags that it
isn’t readily provided.
Alicia Jones
National Advertising Manager
310-783-3239 office
310463-3597 mobile
American Honda Motor Co., Inc.
1919 Torrance Blvd., M/S 100-3E-1G, Torrance, CA 90501
alicia_jones@ahm.honda.com
From: Lucia, Greg [mailto:Greg.Lucia@vw.com]

Sent: Tuesday, December 05, 2017 10:01 AM
To: Weir, Robert ; Alicia Jones
Subject: RE: VW / Honda GRC Intro
Rob / Alicia –
Sorry, just an update on our end: I met with Colin while in LA for Auto Show. While he was positive about GRC and the
addition of new sponsors (Total, a tire manufacture and Polaris), the increased Media fee is a concern for us and not
something we can agree to at this point. We are going thru a formal evaluation process with our agencies, but without
the details or even confirmation of the Turner digital platform, we are waiting on GRC to provide real details on the
deliverables for 2018. There are significant concerns on our end as to the stability of GRC for 2018 and I expressed those
concerns to Colin. We want a healthy, competitive field on the track in 2018, and without that this series offers very
little appeal to fans, OEM’s, broadcast platforms or anyone else - at any cost.
Looking forward to connecting on the 18th if possible.
Greg Lucia
Director, Experiential Marketing
Volkswagen of America, Inc.

2200 Ferdinand Porsche Drive
Herndon, VA 20171
Office: 703.364.7146
Mobile: 571.888.4127
Email: Greg.Lucia@vw.com
http://www.vw.com
1
From: "Weir, Robert" <rwei@SUBARU.com>

Date: Thursday, December 7, 2017 at 7:32 AM
To: Colby Rodriguez <crodriguez@redbullglobalrallycross.com>
Subject: RE: Subaru Activation / Hospitality
Hi Colby,
Thanks for checking in. I should be able to circle back with you towards the end of the month on these
topics.
In the meantime, we have concern about car count for next year. I have spoken directly to VW and
Honda, so we know their current status for 2018. Who else can you confirm for next year? I assume
Austin Dyne as well. We’ll field two cars next year. We don’t intend at this time to support additional
entries with VSC or a third party in 2018. I appreciate any insight you can provide on this.
Also, knowing the venues for next year would be helpful in our review process.
Thank you,
Rob
Rob Weir | Motorsports Manager | Subaru of America, Inc. | o. 856.488.3453 | rweir@subaru.com


EXHIBIT G

Weir, Robert
From: Weir, Robert

Sent: Friday, January 26, 2018 12:52 PM
To: Colin Dyne; Colby Rodriguez
Cc: McHale, Michael; Lance@vtcar.com; Chris Yandell
Subject: Subaru Rallycross Announcement
Dear All,
Regrettably, Subaru of America has decided to decline the GRC MFG offering for 2018. We appreciate GRC’s efforts to
make concessions, but following the recent exit of other MFG-supported programs from the series and the concern of
total supercar entries for 2018, we feel there’s too much instability to present our factory racing program for this
season.
We respect this is tough news, and we wish the series best of luck.
With Regards,
Rob
Rob Weir | Motorsports Manager | Subaru of America, Inc. | o. 856.488.3453 | rweir@subaru.com
1
Peter L. Haviland
Tel: 424.204.4321
Fax: 424.204.4350
havilandp@ballardspahr.com
March 22, 2018
Via E-mail and U.S. Mail
Michael J. Avenatti, Esq.

mavenatti@eaganavenatti.com
Ahmed Ibrahim, Esq.
aibrahim@eaganavenatti.com
Eagan Avenatti, LLP
520 Newport Center Drive, Suite 1400
Newport Beach, CA 92660
Re: ALPHA GRP, Inc. v. Subaru of America, Inc., No. 18-cv-02133

Demand that Colin Dyne Cease Harassing Communications and
Unauthorized Contact with Subaru Personnel
Dear Mr. Avenatti:
This firm is litigation counsel for Defendant Subaru of America, Inc. (“Subaru”) and its officers and
employees in connection with the above-referenced lawsuit.
We understand that Colin Dyne, the Chief Executive Officer of ALPHA GRP, Inc., has sent
threatening, harassing and defamatory messages to Subaru personnel, including Mr. Robert Weir.
These messages suggest that Mr. Dyne has become dangerously angry and irrational.
On March 14, 2018, Mr. Dyne wrote to Mr. Weir:
"Nice Job Rob

I will make sure that U loose ur job over this
You are a worthless no spine human ..
Even your own people hate You ask Lance what he thinks of u !
Scum I’ll see u on the other side … I have been in contact with
Japan and I am sure u will hear from THEM"
On March 16, 2018, Mr. Dyne sent another message to Mr. Weir, attaching a press release
concerning an unrelated lawsuit which resulted in an award of several hundred million dollars to one
of the parties. Mr. Dyne wrote to Mr. Weir:
"Have a nice weekend."

DMEAST #33934964 v1
Michael J. Avenatti, Esq.

March 22, 2018
Page 2
These messages followed a January 1, 2018 letter from Mr. Dyne to Subaru executives accusing Mr.
Weir, as well as Michael McHale, of being "rogue managers" who through their "incompetence" had
"brought shame" to Subaru. The defamations in the letter referenced invented, unsupportable "facts."
We also understand that Mr. Dyne has physically assaulted Mr. Weir, by poking a finger in Weir’s
chest while yelling at him, on at least one prior occasion at a public racing event.
We are certain that you are aware of the liabilities associated with Mr. Dyne’s threatening and
defamatory behavior.
Demand is made that Mr. Dyne immediately cease all individual contact, whether by e-mail, text,
phone, social media, or other means with Subaru personnel, and physically stay away from Mr. Weir
and any other Subaru personnel, whether at Subaru’s offices or at public events. Please confirm
your agreement to comply with this demand not later than Monday, March 26, 2018, by 12:00 noon
Pacific Time.
All rights are reserved.
Sincerely,
/s/ Peter L. Haviland

Peter L. Haviland
PLH
DMEAST #33934964 v1

Subaru&#39;s Motion To Dismiss, Rob Weir&#39;s Statement and Exhibits

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Subaru&#39;s Motion To Dismiss, Rob Weir&#39;s Statement and Exhibits

Transféré par

Droits d'auteur :

Formats disponibles

Case 2:18-cv-02133-MWF-MRW Document 7 Filed 04/06/18 Page 1 of 29 Page ID #:32

1 Peter L. Haviland, 144967 REDACTED VERSION OF

1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

1 DATED: April 6, 2018 Peter L. Haviland

20 C. Venue Is Also Improper in California Requiring Dismissal

9 Almont Ambulatory Surgery Center, LLC v. UnitedHealth Group, Inc.,

19 Chrysler Credit Corp. v. Country Chrysler, Inc.,

26 G.P.P., Inc. v. Guardian Prot. Prod., Inc.,

1 Geo. F. Martin Co. v. Royal Ins. Co. of Am.,

8 Jocer Enterprises, Inc. v. Compass Constr., Inc.,

15 Language Door Inc. v. MyAsia LLC,

24 Pac. Gas & Elec. Co. v. Bear Stearns & Co.,

1 Piper Aircraft Co. v. Reyno,

8 Stragent LLC v. Audi AG,

15 Statutes and Rules

1 MEMORANDUM OF POINTS AND AUTHORITIES

1 claim of Subaru's "tortious interference" with other sponsors, Honda and

1 racing series pursuant to written corporate sponsorship agreements which contained

1 On October 20, 2017, following the issuance of Subaru’s press release,

1 B. The Typical § 1404(a) Factors Also Require Transfer

3 Although Plaintiff’s consistent agreement to abide by a New Jersey forum-

1 1. An Adequate Alternative Forum Exists.

1 (b) New Jersey is a More Convenient Forum.

1 multiple other locations throughout the United States and internationally.

10 federal courts in California and New Jersey routinely resolve.

13 In contrast to a motion to transfer venue under § 1404(a), an action must be

1 It is undisputed that Subaru is a New Jersey corporation with its principal

1 D. Alternatively, the Entire Action Should Be Dismissed for Failure

3 To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege

1 Peter L. Haviland, 144967 REDACTED VERSION OF

1 I, Robert Weir declare as follows:

1 7. In September 2017, I attended the GRC race in Seattle, Washington.

1 14. On December 7, 2017, I sent an e-mail to Alpha’s Chief Strategy

From: "Weir, Robert" <rwei@SUBARU.com>

From: Alicia Jones <alicia_jones@ahm.acura.com>

From: Lucia, Greg [mailto:Greg.Lucia@vw.com]

Looking forward to connecting on the 18th if possible.

Volkswagen of America, Inc.

From: "Weir, Robert" <rwei@SUBARU.com>

Rob Weir | Motorsports Manager | Subaru of America, Inc. | o. 856.488.3453 | rweir@subaru.com

From: Weir, Robert

Rob Weir | Motorsports Manager | Subaru of America, Inc. | o. 856.488.3453 | rweir@subaru.com

March 22, 2018

Via E-mail and U.S. Mail

Michael J. Avenatti, Esq.

Re: ALPHA GRP, Inc. v. Subaru of America, Inc., No. 18-cv-02133

Dear Mr. Avenatti:

On March 14, 2018, Mr. Dyne wrote to Mr. Weir:

"Nice Job Rob

"Have a nice weekend."

Michael J. Avenatti, Esq.

All rights are reserved.

/s/ Peter L. Haviland

Vous aimerez peut-être aussi

Subaru's Motion To Dismiss, Rob Weir's Statement and Exhibits

Subaru's Motion To Dismiss, Rob Weir's Statement and Exhibits