Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 1 of 27

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MERIDIAN AUTONOMOUS INC.,
MERIDIAN USA, INC., and GLOBAL
RESOURCES MANAGEMENT
CONSULTANCY INC.,

Case No. 1:17-cv-05846 (VSB)

Plaintiffs,
v.
COAST AUTONOMOUS LLC,
PHOENIX WINGS, LTD., EMAPSCAN
LLC, PIERRE LEFEVRE, MATTHEW
LESH, COREY CLOTHIER, CYRIL
ROYERE, JONATHAN GARRETT, and
ADRIAN SUSSMANN,
Defendants.

OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
(DOC. 88)

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 2 of 27

TABLE OF CONTENTS
I.

INTRODUCTION ............................................................................................................ 1

II.

FACTUAL BACKGROUND ......................................................................................... 2

III.

DEFENDANTS’ ADMITTED CONDUCT IN NEW YORK SUPPORTS
SPECIFIC PERSONAL JURISDICTION .................................................................... 5

IV.

A.

Pierre Lefevre........................................................................................................ 6

B.

eMAPscan ............................................................................................................. 8

C.

Adrian Sussmann .................................................................................................. 9

D.

Corey Clothier..................................................................................................... 10

E.

Matthew Lesh...................................................................................................... 12

F.

Cyril Royere ........................................................................................................ 12

G.

Phoenix Wings .................................................................................................... 13

VENUE IS PROPER IN THIS DISTRICT ................................................................ 14
A.

Conversion........................................................................................................... 15
1.

Defendant Lefevre .................................................................................. 16

2.

Defendant Coast...................................................................................... 16

3.

Defendants Clothier, Lesh, Royere, and Sussmann ........................... 17

B.

Trade Secret Misappropriation ......................................................................... 18

C.

Breach of Duty of Loyalty................................................................................. 19

D.

Breach of Contract.............................................................................................. 20

E.

Unfair Competition ............................................................................................ 20

V.

SERVICE WAS PROPER ON THE INDIVIDUAL DEFENDANTS AND
PHOENIX WINGS ........................................................................................................ 21

VI.

THIS COURT HAS SUBJECT MATTER JURISDICTION................................... 22

VII.

CONCLUSION............................................................................................................... 23

i

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 3 of 27

TABLE OF AUTHORITIES
Cases 
Armstrong Pump, Inc. v. Hartman, 2010 U.S. Dist. LEXIS 94565,
*24-25, 2010 WL 3547754 ................................................................................................ 20
Broker Genius, Inc. v. Zalta, 2017 U.S. Dist. LEXIS 198951, *38 (S.D.N.Y. 2017) ........... 18
Concesionaria DHM, S.A. v. Int’l Finance Corp., 307 F. Supp. 2d 553,
559 (S.D.N.Y. 2004) .......................................................................................................... 15
Corning Data Servs. v. Kermick, 2007 U.S. Dist. LEXIS 52088, *9, 2007 WL 2080917 .... 19
Fleet Capital Corp. v. Yamaha Motor Corp., U.S.A., 2002 U.S. Dist.
LEXIS 18115, *84, 2002 WL 32063614 (S.D.N.Y. 2002) ............................................... 15
Gen. Capital Partners LLC v. Liberty Ridge, LLC, No. 07-cv-4089,
2007 WL 3010028, at *2 (S.D.N.Y. Oct. 12, 2007) .................................................... 19, 20
Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir.2005) ............................................ 14
Marketxt Holdings Corp. v. Engel & Reiman, P.C., 693 F. Supp. 2d 387,
395 (S.D.N.Y. 2010) .......................................................................................................... 15
McGowan v. Smith, 52 N.Y.2d 268, 273, 419 N.E.2d 321, 437 (1981) .................................. 6
Reynolds Corp. v. Nat’l Operator Servs., Inc., 73 F. Supp. 2d 299, 306 (W.D.N.Y. 1999) . 15
Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100,
103 (2nd Cir. 2006) .............................................................................................................. 6
Sparrow Capital, LLC v. Katcharian, 2013 U.S. Dist. LEXIS 200093,
*24 (E.D.Ky. 2013)............................................................................................................ 21
Universal Marine Med. Supply, Inc. v. Lovecchio, 8 F. Supp. 2d 214, 220 .......................... 19
Statutes 
15 U.S.C. §§ 1125, et seq....................................................................................................... 22
18 U.S.C. § 1836 .................................................................................................................... 22
18 U.S.C. §§ 1030, et seq....................................................................................................... 22
Cal. Code Civ. P. § 415.20..................................................................................................... 21
Other Authorities 
U.K. MINISTRY OF JUSTICE, RULES & PRACTICE DIRECTIONS,
Part 6-Service of Documents ................................................................................................. 22

ii

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 4 of 27

Rules 
Fed. R. Civ. P. 12(h)(1).......................................................................................................... 14
Fed. R. Civ. P. 15(a)(1)(B) ...................................................................................................... 1
N.Y. C.P.L.R. §302(a)(1)......................................................................................................... 8
United Kingdom Civil Procedure Rules Section 6.3(b)......................................................... 21

iii

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 5 of 27

I.

INTRODUCTION
Defendants’ motion to dismiss should be denied as moot because Plaintiffs have

filed an amended complaint pursuant to Fed. R. Civ. P. 15(a)(1)(B).
As alleged in the amended complaint, Defendants engaged in a scheme whereby
they illegally obtained Plaintiffs’ financial support, intellectual property, and physical
assets and unlawfully used them to form their own business to compete against—and take
the business opportunities of—Plaintiffs. Defendants admit that they traveled to New
York to meet with Plaintiffs on multiple occasions and, as alleged in the amended
complaint, it is from these and other contacts with New York that Plaintiffs’ claims arise.
In addition to traveling to New York, Defendants’ work for Plaintiffs was closely
directed and supervised from Plaintiffs’ New York head office. Defendant Lefevre
himself supervised the other individual Defendants as part of his role in Plaintiffs’ New
York head office. And Defendants’ salaries were paid from New York and Defendants
submitted their expenses to New York for reimbursement. Moreover—and although it
was shipped to various locations—the equipment used by Defendants was purchased by
Plaintiffs from New York and was invoiced to Plaintiffs’ address at 333 West 39th Street,
New York.
Defendant Coast also has directed conduct related to this case to New York.
Defendant Coast sent repeated correspondence to Plaintiffs in New York in March and
April of 2017 denying that it had any idea of the specific property it removed from
Plaintiffs’ possession and vowing that any such property “will be returned promptly.”
But in early November, those denials were proven untrue when Defendants belatedly—

1

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 6 of 27

and inexplicably—returned one of the computer “brains” of Plaintiffs’ autonomous
vehicles that Defendants had taken from Plaintiffs’ facilities six months earlier.
Defendants’ efforts to cover-up and conceal their scheme were directed to Plaintiffs in
New York.
To be sure, some conduct related to this case has occurred in Florida and
California.

But when Defendants brought suit in California alleging declaratory

judgment claims that mirror the claims in this case, that case was transferred here for lack
of jurisdiction in California. And despite Defendants’ attempts to link this case to
Florida, Defendants have not filed suit there and have failed to show that a Florida court
would have personal jurisdiction over all of the parties.
II.

FACTUAL BACKGROUND
Plaintiff Meridian created an innovative mobility solution for a range of

autonomous electric vehicles that incorporates Plaintiff GRMC’s advanced geo-spatial
and geo-intelligence solutions.

(Compl.1 ¶1).

Plaintiffs’ technology is focused on,

among other things, “urban-speed” autonomous solutions that integrate with existing
traffic management systems and transport modes. (Compl. ¶2).
From about November 2015 to May 2017, Defendants orchestrated a scheme in
which they took Plaintiffs’ intellectual property, logistical and technical expertise,
money, and physical property to obtain multi-million dollar business opportunities for
themselves at the expense of Plaintiffs. (Compl. ¶19). Without knowledge of this
1

All references to “Compl.” are to Plaintiffs’ First Amended Complaint (Doc. 94), a
copy of which is attached as Exhibit A for the Court’s convenience.

2

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 7 of 27

scheme, Plaintiffs invested millions of dollars to pursue business opportunities related to
autonomous vehicles.

(Id.).

And when those business opportunities were nearing

fruition, Defendants took Plaintiffs’ property and formed Defendant Coast to continue the
scam and to benefit from the investments made by Plaintiffs. (Id.).
Defendant Lefevre first approached Plaintiff GRMC in November 2015, trying to
sell equipment from his company, Viametris, and to promote his autonomous vehicle
plans. (Compl. ¶22). In about March 2016, Plaintiffs began to work with Defendant
Lefevre and his company, Defendant Phoenix Wings, to pursue an autonomous vehicle
project. (Id.). In addition to Defendant Lefevre, Plaintiffs brought Defendants Clothier,
Garrett, Lesh, Royere, and Sussmann into the autonomous vehicle project as employees.
(Compl. ¶23).

Plaintiffs paid Defendants salaries and expenses, arranged other

compensation, rented facilities for them in Florida, purchased supplies and equipment,
and/or provided technical staff and logistical support in an amount that exceeds
$1,250,000. (Id.).
Plaintiffs also provided technical and commercial leadership from Plaintiffs’ own
executives and technical team in New York and elsewhere. (Compl. ¶24). Plaintiffs’
CEO and CTO, Lincoln Satkunarajah—based in New York—was extensively involved
with Defendants and the autonomous vehicle project. (Id.) He has over thirty years of
experience working on highway, traffic, and transportation systems and holds, among
other degrees, a Masters of Science from the City University of London as well as
certification as a Professional Traffic Operations Engineer in the United States. (Id.) Mr.
Satkunarajah is also an inventor and owns patent rights covering foundational technology

3

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 8 of 27

in the field of autonomous vehicles. (Id.) In addition, Kay Satha, Senior Executive Vice
President of Plaintiffs—also based in New York—was deeply involved with Defendants.
(Id.) She has over 20 years of experience in the industry. (Id.)
The focus of the part of Plaintiffs’ autonomous vehicle project that included
Defendants centered primarily on two vehicle demonstrations, one at Disney World and
one for a vehicle called the World Bus. (Compl. ¶25). Defendant Clothier identified the
Disney World demonstration as Plaintiff Meridian’s “moon shot” that would allow
Plaintiff to begin receiving substantial revenue. (Id.). According to Defendant Clothier’s
calculations, the Disney World demonstration alone would give Plaintiff Meridian sales
of over $70 million in 2018. (Id.).
But on the eve of the crucial demonstrations, Defendants removed Plaintiffs’
physical property from Plaintiffs’ facility—including the demonstration vehicles—and
formed Defendant Coast to pursue the business opportunities properly belonging to
Plaintiffs. (Compl. ¶26).
Defendants also sued Plaintiffs for declaratory judgment in California federal
court in a case that Defendants admit shared “a common identity of parties and a
common nucleus of operative facts” with this case. (Doc. 33 at 11, Case No. 1:17-cv08422-VSB).

The California case was ultimately dismissed for lack of personal

jurisdiction, transferred to this Court, deemed related to this case, and assigned to the
Hon. Vernon S. Broderick.
Defendants’ scheme and their efforts to cover it up continued after they had left to
Defendant Coast. (Compl. ¶27). In a March 28, 2017 telephone call and letter to

4

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 9 of 27

Plaintiffs in New York, Coast acknowledged that “Meridian incurred some expenses that
it seeks to recoup” and proposed “possible deal terms that may entail an equity stake for
Meridian in Coast.” (Id.). On a telephone call to New York on March 31, 2017,
Defendant Coast admitted that its employees had removed property from Plaintiff
Meridian’s

facilities

that

had

been

“comingled

with

Meridian’s

property”

“unintentionally.” (Compl. ¶82). In an April 12, 2017 email to Plaintiffs in New York,
Defendants’ representative acknowledged that Defendants would be returning “some
sensors purchased with Meridian funds” that had been removed from Plaintiffs’ facilities
by Defendants. Defendants also represented that “if there are additional items that were
inadvertently removed, they will be returned promptly.” (Id.). But despite Defendants’
representations, Defendants continued to withhold at least one computer that functions as
the “brain” of Plaintiffs’ autonomous vehicles until November 2017. (Id.). During the
seven months that Defendants retained possession of Plaintiffs’ property, they repeatedly
professed ignorance of any property wrongfully in their possession, despite the fact that
the computer had been in Defendants’ possession since at least December 2016. (Id.).
III.

DEFENDANTS’ ADMITTED CONDUCT IN NEW YORK SUPPORTS
SPECIFIC PERSONAL JURISDICTION
Defendant Coast does not dispute that this Court has personal jurisdiction over it

and, as such, Defendant Coast has waived that defense under Fed. R. Civ. P. 12(h)(1).
As for the remaining Defendants, “to establish personal jurisdiction under
[N.Y.C.P.L.R.] section 302(a)(1), two requirements must be met: (1) the defendant must
have transacted business within the state; and (2) the claim asserted must arise from that

5

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 10 of 27

business activity.” McGowan v. Smith, 52 N.Y.2d 268, 273, 419 N.E.2d 321, 437 (1981).
“New York courts have held that a claim ‘arises from’ a particular transaction when there
is some articulable nexus between the business transacted and the cause of action sued
upon.” Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 103 (2nd
Cir. 2006) (“In cases where claims have been dismissed on jurisdictional grounds for lack
of a sufficient nexus between the parties’ New York contacts and the claim asserted, the
event giving rise to the plaintiff’s injury had, at best, a tangential relationship to any
contacts the defendant had with New York.”).
Here, Defendants have had direct contacts with New York from which Plaintiffs’
claims arise:
A.

Pierre Lefevre

Defendants admit that Defendant Lefevre had “contacts with New York related to
the claims.” (Doc. 87, Defs.’ Memo. at 1). And Defendants admit that “negotiations
over the Proposed Transaction described in the Complaint were conducted in face-to-face
meetings between Lincoln Satkunarajah [Plaintiffs’ President and CEO] and [Pierre
Lefevre] in Las Vegas, Nevada, Tampa, Florida, London, England and France, as well as
New York.” (Doc. 90, Lefevre Decl. ¶ 8). As such, Defendants themselves have
identified the “articulable nexus” between Mr. Lefevre’s contacts with New York and the
claims.
Defendants argue that Mr. Lefevre’s contacts do not establish personal jurisdiction
because “the bulk of Lefevre’s visits to New York were at Satkunarajah’s request, and
thus not voluntary.” (Doc. 87, Defs.’ Memo. at 6). But even if the “bulk” of the visits

6

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 11 of 27

were “not voluntary,” there can be no dispute that the remaining visits were voluntary
and thus would support jurisdiction. Moreover, in his declaration, Mr. Lefevre does not
state that his visits to New York were not voluntary—he simply says they were “at the
request of Lincoln Satkunarajah.” (Doc. 90, Lefevre Decl. ¶ 8).
The amended complaint alleges that Mr. Lefevre’s visits to New York were to
conduct business related to claims in this case.

In November 2016, Mr. Lefevre

submitted an expense reimbursement request to Plaintiffs seeking reimbursement for his
travel expenses for six separate trips to New York.

(Compl. at ¶61).

Plaintiffs

reimbursed these expenses in November of 2016. (Id.). Defendant Lefevre labeled his
list of expenses as “MERIDIAN Expenses June-November 12.” (Id.). As alleged in the
Complaint, Plaintiffs’ claims arise out of Plaintiff Meridian’s decision to “include
Defendants Lefevre, Royere, Clothier, Lesh, and Garrett in its development of
autonomous vehicles as employees.” (Compl. at ¶19). And Mr. Lefevre’s trips to New
York and his expenses were incurred in connection with his work on Plaintiffs’
autonomous vehicle project. (Compl. at ¶61). The fact that Mr. Lefevre sought—and
received—reimbursement for his six trips to New York as “MERIDIAN Expenses”
further proves that the claims in this case arise out of his contact with Plaintiffs in New
York.
In addition, Mr. Lefevre’s activities for Plaintiffs occurred as part of his work in
Plaintiffs’ “NYC head office.”

(Compl. ¶69).

According to the “Communications

Protocols and Approval System” for Plaintiff Meridian Autonomous, Defendants were
required to “obtain final approval from NYC Head Office (Pierre [Lefevre], Kay [Satha],

7

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 12 of 27

and [Lincoln Satkunarajah]) on all critical matters.” (Id.). And Defendant Lefevre
prepared a detailed description of the Meridian “Business & Technical Development
2016,” which stated under the heading “Human Resources” that Defendant Lefevre
would work on product development in “New York” as an “Employee.” (Id.).
B.

eMAPscan

This court has specific personal jurisdiction over eMAPscan under N.Y. C.P.L.R.
§302(a)(1) because its principal and “authorized manager,” Defendant Pierre Lefevre,
transacted business in New York that gives rise to the claims against Defendant
eMAPscan. (Compl. ¶¶116-120). Defendant Lefevre entered into the Confidentiality
Agreement that gives rise to the breach of contract claim against eMAPscan in this case.
(Compl. ¶116). The Confidentiality Agreement signed by Lefevre applies to himself and
to any of his “partners” or “affiliates.” (Compl. ¶117). Defendant eMAPscan is an
affiliate of Lefevre because, as alleged in the complaint, Lefevre formed eMAPscan for
the purpose of improperly using Plaintiff Meridian’s trade secrets, property, and
intellectual property obtained in breach of the Confidentiality Agreement. (Compl. ¶85).
By its terms, the Confidentiality Agreement creates ongoing “obligations of
confidentiality, non-disclosure, and non-use” that last for seven years from its April 2016
effective date. (Compl. ¶119). In addition, the parties chose New York law to govern the
Confidentiality Agreement and Lefevre admits that he traveled to New York “5 or 6
times” to work on the “Possible Transaction” contemplated in the Confidentiality
Agreement. (Compl. ¶85). All of these facts support the exercise of specific personal
jurisdiction over defendant eMAPscan. Agency Rent a Car Sys. v. Grand Rent a Car

8

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 13 of 27

Corp., 98 F.3d 25, 29 (2d Cir. N.Y. 1996) (facts supporting personal jurisdiction include
“(i) whether the defendant has an on-going contractual relationship with a New York
corporation. . . (ii) whether the contract was negotiated or executed in New York, and
whether, after executing a contract with a New York business, the defendant has visited
New York for the purpose of meeting with parties to the contract regarding the
relationship; (iii) what the choice-of-law clause is in any such contract.”). Alternatively,
Plaintiffs request the opportunity to conduct jurisdictional discovery.
It would not be “fundamentally unfair” for eMAPscan to be subject to this Court’s
specific personal jurisdiction because eMAPscan could foresee being hailed into New
York court. The complaint alleges that Lefevre is a principal, an authorized member, and
is authorized to manage Defendant eMAPscan. (Compl. ¶8). Thus, eMAPscan—by
virtue of its principal, registered agent, and authorized manager Lefevre—was well aware
of the obligations of Lefevre and his affiliates under the Confidentiality Agreement. The
fact that eMAPscan was formed after the Confidentiality Agreement was signed is
immaterial because Defendant Lefevre was aware of the ongoing obligations under that
agreement. And as such, the possibility of litigation in New York arising out of the
Confidentiality Agreement was foreseeable to eMAPscan.
C.

Adrian Sussmann

Defendant Sussmann admits he visited New York in September 2016 and met with
Defendant Lefevre and the president and CEO of Plaintiffs, Mr. Satkunarajah, for two
days on September 7 and 8, 2016. (Doc. 93, Sussmann Dec. ¶ 10). Plaintiffs paid Mr.
Lefevre’s travel expenses to attend that meeting in New York. (Compl. ¶51). During the

9

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 14 of 27

meetings on September 7 and 8, 2016, Mr. Sussmann discussed in detail Plaintiffs’
autonomous vehicle project and his role in it. (Id.).
In addition, Mr. Sussmann was an employee and agent of Plaintiffs and, among
other things, represented Plaintiffs in discussions with Disney. (Id.). Less than a month
after Mr. Sussmann’s meeting in New York with Plaintiffs, Mr. Sussmann conducted
negotiations with Disney on behalf of Plaintiffs regarding a project to provide “up to 30
vehicles for their [Disney’s] parking operations.” (Id.). Mr. Sussmann represented to
Disney that “we [Plaintiffs] were working on the 2nd generation and it should be ready
by January.” (Id.). Mr. Sussmann sent an email to Mr. Satkunarajah which stated that if
“we can land the Disney project for [Plaintiff] Meridian I am sure it will open the door
for many other [Plaintiff] GRMC services.” (Id.). There is no dispute that Plaintiff
Meridian Autonomous Inc. and Plaintiff Global Resources Management Consultancy,
Inc. (GRMC) are located at 333 West 39th Street, New York, New York. (Compl. ¶3, 5).
And Mr. Sussmann’s actions representing Plaintiffs in business discussions with Disney
and reporting those discussions back to New York establish sufficient contacts with New
York for personal jurisdiction.
D.

Corey Clothier

Defendant Clothier admits he visited the New York offices of Plaintiff Meridian
“on 3 occasions (September, October, and November 2016)” and that these “trips to New
York lasted 1 to 2 days each.” (Doc. 89, Clothier Dec. ¶11). According to Defendant
Clothier’s declaration, he visited New York in September 2016 “to negotiate the terms of
my independent contractor relationship with [Plaintiff] Meridian.” (Doc. 89, Clothier

10

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 15 of 27

Dec. ¶9). Plaintiffs paid Defendant Clothier’s expenses, including expenses he listed as
“New York,” on November 10, 2016. (Compl. ¶59). In addition, Plaintiffs provided Mr.
Clothier a laptop he used in conducting his business for Plaintiffs. (Id.). As part of Mr.
Clothier’s responsibilities with Plaintiffs, he was required to obtain “final approval from
NYC Head Office (Pierre [Lefevre], Kay, and [Lincoln Satkunarajah]) on all critical
matters.” (Id.).
In addition, and among other things, Defendant Clothier spoke with Disney on
behalf of Plaintiffs and reported to Plaintiffs in New York that Disney wanted up to 100
vehicles in 2017 from Plaintiffs. (Id.). Defendant Clothier told Plaintiffs in New York
that Disney was Plaintiffs “moon shot” and that working towards Disney’s business
would lead to Plaintiffs receiving more business from others. (Id.). Defendant Clothier
outlined to Defendants in New York that the plan was to provide a vehicle demonstration
involving two vehicles. (Id.).
Moreover, Defendant Clothier, along with Defendant Lesh, signed a contract on
behalf of Plaintiff Meridian with Stantec. (Compl. ¶¶197, 198). Defendants listed
Defendant Clothier as Plaintiff Meridian’s “Chief Strategy Officer” and Defendant Lesh
as Plaintiff Meridian’s “Chief Commercial Officer” under their signatures in the Stantec
agreement. (Id.). The Stantec agreement identified Plaintiff Meridian as “Meridian
Autonomous, Inc., 333 West 39th Street, Suite 202, New York, NY 10018.” (Id.). Prior
to signing the agreement, Defendants Clothier and Lesh obtained approval from
executives in Plaintiffs’ New York Head Office. (Id.).

11

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 16 of 27

Defendant Clothier thus has sufficient contacts with New York to support personal
jurisdiction.
E.

Matthew Lesh

Like the other individual defendants, Defendant Lesh admits he travelled to New
York on multiple occasions. (Doc. 91, Lesh Dec. at ¶9). According to Defendant Lesh,
one of these occasions was for a meeting with “Corey Clothier, Pierre Lefevre, and
Lincoln Satkunarajah.” (Doc. 91, Lesh Dec. at ¶9). As alleged in the First Amended
Complaint, this trip occurred in the first week of October and the purpose of this trip was
to discuss Mr. Lesh’s employment by Plaintiff Meridian Autonomous for the autonomous
vehicle project. (Compl. ¶58). After this meeting, Plaintiffs began paying Mr. Lesh his
salary and expenses. (Id.). In addition, Mr. Lesh traveled to New York to meet with Mr.
Satkunarajah in November 2016 to discuss the autonomous vehicle project. (Id.). Like
Mr. Clothier and Mr. Royere, Mr. Lesh was required to obtain “final approval from NYC
Head Office (Pierre [Lefevre], Kay, and [Lincoln Satkunarajah]) on all critical matters.”
(Id.). Also like Mr. Clothier and Mr. Royere, Mr. Lesh was required to “copy at least
Kay [Satha, Plaintiffs’ executive in New York] in all communications, including with
external parties and internal team members.” (Compl. ¶65). Finally, as noted above, Mr.
Leash signed an agreement with Stantec on behalf of Plaintiff Meridian which lists
Plaintiffs’ address in New York. (Compl. ¶¶197, 198).
F.

Cyril Royere

Defendant Royere admits he traveled to New York “to meet with Lincoln
Satkunarajah and his patent lawyers” on November 7 and 8, 2016. (Doc. 92, Royere Dec.

12

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 17 of 27

¶ 9). The purpose of this meeting was to discuss the technology being developed by
Plaintiffs in connection with Plaintiffs’ autonomous vehicle project. (Compl. ¶65). As
with Defendants Clothier and Lesh, Mr. Royere was required to obtain “final approval
from NYC Head Office (Pierre [Lefevre], Kay [Satha], and [Lincoln Satkunarajah]) on
all critical matters.” (Id.). In addition, Mr. Royere was required to “copy at least Kay
[Satha] in all communications, including with external parties and internal team
members.” (Id.). Kay Satha is a senior executive for Plaintiffs based in New York. (Id.).
In mid-December 2016, Defendant Royere sent an email to Plaintiffs in New York in
which he admitted that the software he had created for autonomous vehicles did not work
and was based on pirated source code. (Id.). And based on these contacts, personal
jurisdiction in New York is properly exercised over Defendant Royere.
G.

Phoenix Wings

Defendant Lefevre is a principal and agent of Defendant Phoenix Wings and
Defendant Royere acted as an agent of Phoenix Wings. (Compl. ¶¶9-10). In April 2016,
Plaintiffs and Defendant Phoenix Wings entered into a non-binding term sheet. (Compl.
¶29). The non-binding term sheet was negotiated and signed by Defendant Lefevre.
(Id.). Mr. Lefevre admits in his declaration that the negotiations over the proposed
transaction between Defendant Phoenix Wings and Plaintiffs were conducted in face-toface meetings, including in New York. (Doc. 90, Lefevre Decl. ¶ 8, 1120). In addition,
Plaintiff Meridian engaged Phoenix Wings to provide various consulting services and
these services were performed by Lefevre and Royere for the autonomous vehicle
project. (Compl. ¶¶7, 29). The services provided by Defendant Lefevre on behalf of

13

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 18 of 27

Phoenix Wings were performed in New York during at least several of the six trips to
New York that were paid for by Plaintiffs. (Id.). Defendants Phoenix Wings and Lefevre
also attempted to negotiate a deal with Plaintiffs in New York after they rejected
Plaintiffs’ offer related to the non-binding term sheet in early 2017. (Compl. ¶7).
IV.

VENUE IS PROPER IN THIS DISTRICT
As an initial matter, the heading in Defendants’ Memorandum suggests that they

are challenging venue “as to all claims and defendants.” (Doc. 87; Defs.’ Memo. at 13).
But nowhere do Defendants make any arguments—or even mention—Defendants
eMAPscan or Phoenix Wings and, as a result, Defendants eMAPscan and Phoenix Wings
have waived any venue defense under Fed. R. Civ. P. 12(h)(1).
Courts conduct a two-part inquiry to determine whether venue is appropriate under
Section 1391(b)(2). First, the Court must “identify the nature of the claims and the acts
or omissions that the plaintiff alleges give rise to those claims.” Daniel v. Am. Bd. of
Emergency Med., 428 F.3d 408, 432 (2d Cir. 2005). Second, the Court determines
whether “a substantial part of those acts or omissions occurred in the district where suit
was filed, that is, whether ‘significant events or omissions material to [those] claim[s] . . .
have occurred in the district in question.’” Id. (quoting Gulf Ins. Co. v. Glasbrenner, 417
F.3d 353, 357 (2d Cir.2005)). As to the second part of this inquiry, “‘[s]ubstantiality’ for
venue purposes is more a qualitative than a quantitative inquiry.” Daniel, 428 F.3d at
432-33. As such, “[w]hen material acts or omissions within the forum bear a close nexus
to the claims, they are properly deemed ‘significant’ and, thus, substantial, but when a
close nexus is lacking, so too is the substantiality necessary to support venue.” Id. at 433.

14

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 19 of 27

Importantly, venue is appropriate in “each district where a substantial part of the
events . . . occurred,” and thus venue may be appropriate in this district even if a greater
portion of events occurred elsewhere. Concesionaria DHM, S.A. v. Int’l Finance Corp.,
307 F. Supp. 2d 553, 559 (S.D.N.Y. 2004). “A plaintiff does not have to prove that his or
her chosen venue is the best forum for the action, a plaintiff need only demonstrate that
the choice is a permissible one.” Reynolds Corp. v. Nat’l Operator Servs., Inc., 73 F.
Supp. 2d 299, 306 (W.D.N.Y. 1999).
A.

Conversion

Under New York law, “a conversion takes place when someone, intentionally and
without authority, assumes or exercises control over personal property belonging to
someone else, interfering with that person’s right of possession.” Marketxt Holdings
Corp. v. Engel & Reiman, P.C., 693 F. Supp. 2d 387, 395 (S.D.N.Y. 2010).
Defendants have failed to establish that the location where they took actual
physical possession of Plaintiffs’ property is the only place where “a substantial part” of
the acts or omissions giving rise to Plaintiffs’ claims occurred. “It is not necessary that
one take actual physical possession of property to be guilty of conversion.” Fleet Capital
Corp. v. Yamaha Motor Corp., U.S.A., 2002 U.S. Dist. LEXIS 18115, *84, 2002 WL
32063614 (S.D.N.Y. 2002) (“No manual taking of the property or application of it to the
defendant’s own use is required. The exercise of dominion over property to the exclusion
of and in defiance of the owner’s right is a conversion.”). Thus, to the extent Defendants
contend that they took actual physical possession of Plaintiffs’ property outside of New

15

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 20 of 27

York, they have failed to establish that that location is the only place where a
“substantial” part of the conversion occurred.
1.

Defendant Lefevre

Defendant Lefevre was a New York employee of Plaintiffs who was entrusted
with Plaintiffs’ personal property. As part of his role in the New York head office of
Plaintiffs, the other Defendant employees of Plaintiffs were required to get approval from
Defendant Lefevre on all critical matters. (Compl. ¶69). Defendant Lefevre also agreed
to send to Plaintiffs’ New York head office a set of keys to the Plaintiffs’ facility from
which personal property was illegally removed, but he never sent them. (Compl. ¶79).
In addition, Defendant Lefevre sent an email message to Plaintiffs’ executives in New
York expressing his desire to work together in a “decent and respectful way to manage
the transition”—and it was during this “transition” time that Plaintiffs’ property was
illegally converted. (Id.). Defendant Lefevre was also identified as the recipient on
invoices for shipments of personal property sold to Plaintiffs listed at their New York
address that was unlawfully converted by Defendants. (Id.). Finally, Defendant Lefevre
was paid a salary from and submitted his expenses for reimbursement to Plaintiffs’ New
York head office. (Id.).
2.

Defendant Coast

As for Defendant Coast, Defendants do not dispute that personal jurisdiction over
Defendant Coast is proper in New York and argue that “the Central District of California
is a proper venue for these claims.” (Doc. 87; Defs.’ Memo. at 13). But simply because
California may be a “proper venue” does not mean that venue is not also proper in New

16

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 21 of 27

York. And, in any event, as alleged in the complaint, Defendant Coast had repeated
communications with Plaintiffs in New York (in-person, by telephone, and by email)
related to, and in furtherance of, its conversion of Plaintiffs’ property. (Compl. ¶¶27, 82).
3.

Defendants Clothier, Lesh, Royere, and Sussmann

Defendants Clothier, Lesh, and Royere were required to obtain “final approval
from NYC Head Office (Pierre [Lefevre], Kay [Satha], and [Lincoln Satkunarajah) on all
critical matters.” (Compl. ¶65). As alleged in the Complaint, Defendants failed to obtain
approval from Plaintiffs’ head office in New York City to take any actions with respect to
Plaintiffs’ personal property. (Compl. ¶79).
Defendants omission—the failure to obtain final approval from the New York
office—has a “close nexus” to Plaintiffs’ conversion claim because that omission
establishes that Defendants’ actions with respect to Plaintiffs’ personal property were
“without authorization.” And because Defendants’ omission was the failure to take an
action that is directly connected to Plaintiffs’ New York office, a substantial part of
Plaintiffs’ conversion claim arises in this district.
With respect to Defendant Sussmann, he admits that he visited New York in
September 2016 and met with Defendant Lefevre and the president and CEO of
Plaintiffs, Mr. Satkunarajah, for two days on September 7 and 8, 2016. (Doc. 93,
Sussmann Dec. ¶ 10). During the meetings on September 7 and 8, 2016, Mr. Sussmann
discussed in detail Plaintiffs’ autonomous vehicle project and his role in it. (Id.). Mr.
Sussmann also was an employee and agent of Plaintiffs and, among other things,
represented Plaintiffs in discussions with Disney regarding the autonomous vehicle

17

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 22 of 27

project. (Id.). As alleged in the complaint, Defendants’ conversion arose out of—and
was possible because of—Defendants’ work on Plaintiffs’ autonomous vehicle project
and the relationships of trust and confidence between Plaintiffs and, among others,
Defendant Sussmann.
B.

Trade Secret Misappropriation

Defendants limit their venue challenge to Plaintiffs’ trade secret claims to
arguments related to “Lefevre and the Individual Defendants.” (Doc. 87; Defs.’ Memo.
at 13).

Defendants have thus waived any venue challenge related to trade secret

misappropriation as to Defendant Coast.
As alleged in the amended complaint, Defendants Clothier, Lefevre, Lesh, Royere,
and Sussmann gained access to Plaintiffs’ trade secrets in New York. Specifically, the
amended complaint alleges that Defendants each met with the Plaintiffs in New York and
that during these meetings Plaintiffs disclosed trade secrets to Defendants. (Compl.
¶105). Although Plaintiffs disclosed these trade secrets to Defendants based on the
understanding that they would not be used without Plaintiffs’ authorization and consent,
Defendants used them without Plaintiffs’ authorization or consent. (Id.). In addition,
Plaintiffs entered into a non-disclosure agreement with Defendant Lefevre that protected
Plaintiffs’ trade secrets and the obligations in that agreement extend to the other
Defendants as his “affiliates.” (Compl. ¶117). “One of the ways in which a plaintiff may
establish that trade secrets were misappropriated under New York law is by showing that
a defendant ‘used the trade secrets in breach of an agreement’ between the parties.”
Broker Genius, Inc. v. Zalta, 2017 U.S. Dist. LEXIS 198951, *38 (S.D.N.Y. 2017). The

18

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 23 of 27

non-disclosure agreement was negotiated in New York, is governed by New York law,
and was at least partially executed in New York. Gen. Capital Partners LLC v. Liberty
Ridge, LLC, No. 07-cv-4089, 2007 WL 3010028, at *2 (S.D.N.Y. Oct. 12, 2007) (“[T]he
fact that the underlying contract was at least partially negotiated and executed in New
York is, standing alone, sufficient for this action to proceed in this District.”)
Because Defendants’ acquisition of Plaintiffs’ trade secrets occurred in New York
and their obligation not to use them without Plaintiffs’ consent flowed to Plaintiffs in
New York, a “substantial part” of Plaintiffs’ trade secret claim arose in New York.
Universal Marine Med. Supply, Inc. v. Lovecchio, 8 F. Supp. 2d 214, 220 (“The
gravamen of a complaint for misappropriation is the wrongful taking of a trade secret,
which allegedly occurred in New York. Thus, venue is proper for this claim in the
Eastern District of New York.”).
C.

Breach of Duty of Loyalty

As set forth in the amended complaint, Defendants Clothier, Lefevre, Lesh,
Royere, and Sussmann owed a duty of loyalty to Plaintiffs as employees and
representatives of Plaintiffs.

This duty arose out of meetings in New York and

correspondence with Plaintiffs in New York. (Compl. ¶98). In addition, Defendants’
duty to Plaintiffs in New York arose out of Plaintiffs’ supervision of Defendants from
New York and the payment of Defendants’ salaries and expenses from New York. (Id.);
Corning Data Servs. v. Kermick, 2007 U.S. Dist. LEXIS 52088, *9, 2007 WL 2080917
(venue was proper in New York for breach of duty of loyalty claim against former
employee who “was supervised by, and reported to, Linderman, who resides in Corning,

19

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 24 of 27

New York. Moreover, [employee] received paychecks, work assignments, and travel
plans from Corning, New York and sent his expense slips to a location within New
York.”).
D.

Breach of Contract

As alleged in the amended complaint, the non-disclosure agreement was
negotiated in New York, is governed by New York law, and was at least partially
executed in New York. (Compl. ¶¶45, 119); Gen. Capital Partners LLC v. Liberty Ridge,
LLC, No. 07-cv-4089, 2007 WL 3010028, at *2 (S.D.N.Y. Oct. 12, 2007) (“[T]he fact
that the underlying contract was at least partially negotiated and executed in New York
is, standing alone, sufficient for this action to proceed in this District.”) In addition, there
were multiple communications in and to New York related to the contract and its breach.
(Compl. ¶¶29, 61, 69, 79, 82). Armstrong Pump, Inc. v. Hartman, 2010 U.S. Dist.
LEXIS 94565, *24-25, 2010 WL 3547754 (“In evaluating venue in a breach of contract
action . . . the § 1391 (a)(2) standard may be satisfied by as little as a single
communication transmitted to or from the district in which the cause of action was filed,
given a sufficient relationship between the communication and the cause of action.”).
As such, venue over the breach of contract claim is proper in New York.
E.

Unfair Competition

Defendants allege that venue is improper as to Plaintiffs’ claims for unfair
competition “because they are all derivative of the conversion and misappropriation
claims.” (Doc. 87; Defs.’ Memo. at 13). But as set forth above, Plaintiffs’ conversion

20

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 25 of 27

and misappropriation claims are properly venued in this district and, as such, venue is
also proper in this district over Plaintiffs’ unfair competition claims.
V.

SERVICE WAS PROPER ON THE INDIVIDUAL DEFENDANTS AND
PHOENIX WINGS
With respect to individual defendants Sussmann, Clothier, Lesh, and Royere, each

of them is identified by Coast as a “Managing Director” or “Officer” of Defendant Coast.
(Compl. ¶84). The process server attempted to personally serve the complaint and
summons on individual defendants Sussmann, Clothier, Lesh, and Royere at the offices
of Defendant Coast on three occasions: August 8, 9, and 10, 2017. (Doc. 53, 56, 57, and
58). On the third attempt, the process server left a copy of the complaint and summons
with a legal assistant at the address listed for Defendant Coast’s offices.

(Id.).

Thereafter, copies of the complaint and summons were mailed to the individual
defendants and the individual Defendants admitted they received them by mail in a letter
to this Court. (Doc. 70 (October 10, 2017 Letter from David Hickey to Court); Doc. 70-1
(Copies of supplemental proofs of service showing mailing of complaint and summons)).
As such, substituted service was accomplished pursuant to Cal. Code Civ. P. § 415.20.
As for Phoenix Wings, Article 19 of the Hague Convention provides for service to
be made pursuant to the “internal law of a Contracting State” for documents coming from
abroad. Sparrow Capital, LLC v. Katcharian, 2013 U.S. Dist. LEXIS 200093, *24
(E.D.Ky. 2013). Here, the United Kingdom is the state of destination or contracting state,
and the applicable internal laws are contained in Part 6 of the United Kingdom’s Civil
Procedure Rules (“U.K. Civil Rules”). Id.; See U.K. MINISTRY OF JUSTICE, RULES &

21

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 26 of 27

PRACTICE

DIRECTIONS,

Part

6

-

Service

of

Documents,

available

at

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06 (noting that the Rules
apply to service in England and Wales of any document in connection with civil or
commercial proceedings in a foreign court or tribunal). Section 6.3(b) of the U.K. Civil
Rules provides that service may be made by “first class mail, document exchange, or
other service which provides for delivery on the next business day.” As set forth in the
proof of service for Phoenix Wings, the complaint and summons were served by Federal
Express. (Doc. 77). And, accordingly, service on Phoenix Wings was properly made.
VI.

THIS COURT HAS SUBJECT MATTER JURISDICTION
As alleged in the amended complaint, Plaintiffs’ cause of action for violation of

the United States Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, relates to
Defendants misappropriation of trade secrets related to autonomous transportation
technology and products.

(Compl. ¶102).

Defendants Coast, Phoenix Wings, and

Lefevre admit in their amended complaint in the related action (Case No. 1:17-cv-08422VSB) that they own “autonomous transportation technology” that is “used in, or intended
for use in, interstate commerce.” (Doc. 18 at ¶¶182-84; First Amended Complaint). The
amended complaint in this case alleges that this “autonomous transportation technology”
that Defendants admit to using in interstate commerce includes Plaintiffs’ trade secrets.
(Compl. ¶102). And, as a result, subject matter jurisdiction exists as to Plaintiffs’ claim
under 18 U.S.C. § 1836. In addition, Plaintiffs have alleged causes of action under the
Lanham Act (15 U.S.C. §§ 1125, et seq.) and the United States Computer Fraud and

22

 Case 1:17-cv-05846-VSB Document 95 Filed 12/22/17 Page 27 of 27

Abuse Act (18 U.S.C. §§ 1030, et seq.), which also give this Court subject matter
jurisdiction.
VII.

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss should be denied as

moot in light of the amended complaint filed by Plaintiffs.
Dated: December 22, 2017

Respectfully submitted,
/s/ Perry R. Clark
Perry R. Clark
Email: perry@perryclarklaw.com
Law Offices of Perry R. Clark
825 San Antonio Road
Palo Alto, CA 94303
Tel.: 650-248-5817
Attorney for Plaintiffs
MERIDIAN AUTONOMOUS INC.,
MERIDIAN USA, INC., and GLOBAL
RESOURCES MANAGEMENT
CONSULTANCY INC.

23