United States District Court, D. Connecticut
DENNIS NICOTRA, PREMIER MOTOR CARS, LLC, CUNNINGHAM GULLWING GROUP, LLC, Plaintiffs,
FERRARI FINANCIAL SERVICES, INC., Defendant.
RULING AND ORDER ON MOTION TO TRANSER VENUE
A. BOLDEN UNITED STATES DISTRICT JUDGE
Nicotra, Premier Motor Cars, LLC, and Cunningham Gullwing
Group, LLC (“Plaintiffs”) have sued Ferrari
Financial Services, Inc. (“Defendant” or
“Ferrari Financial”) over the depreciation in
value of two antique cars. Mr. Nicotra claims breach of
contract, breach of the covenant of good faith and fair
dealing, negligence, breach of fiduciary duty, violation of
the Connecticut Unfair Trade Practices Act, and constructive
trust under Connecticut state law. Defendant now moves to
dismiss these state law claims or, in the alternative,
following reasons, the motion to transfer venue is
FACTUAL AND PROCEDURAL BACKGROUND
Nicotra, a Connecticut resident, is allegedly a member of two
limited liability companies, Premier Motor Cars, LLC
(“Premier”) and Cunningham Gullwing Group, LLC
(“Cunningham”). Compl., ECF No. 1-1 ¶¶
1-3. Ferrari Financial is a corporation with its principal
place of business in New Jersey. Id. ¶ 4.
November 14, 2017, Mr. Nicotra, Premier, Cunningham, and
Ferrari Financial allegedly entered into a security agreement
in which Ferrari Financial “agreed to extend a line of
credit to Premier and Cunningham, and Premier and Cunningham
granted” Ferrari Financial a lien in certain
automobiles, including an early 20th century Alfa
Romeo and a mid-20th century Ferrari. Id.
cars allegedly were appraised and inspected about once a
year. Id. ¶ 7. As of October 27, 2017, the
appraised value of the Alfa Romeo was $2, 228, 130 and the
appraised value of the Ferrari was $1, 787, 500. Id.
¶¶ 7-8. As of October 22, 2018, the appraised value
of the Alfa Romeo was $2, 418, 130 and the appraised value of
the Ferrari was $1, 693, 267. Id. ¶ 9. As of
October 2018, both cars had a total appraised value of $4,
111, 397. Id. The value allegedly remained steady
through October 2018. Id. ¶ 10.
December 14, 2018, Mr. Nicotra allegedly signed a forbearance
agreement, listed as the “Authorized Representative of
Borrower.” Id. ¶ 11. On the same day, an
individual listed as the “Authorized Representative of
Ferrari Financial Services, Inc.” allegedly signed the
same forbearance agreement. Id. Premier and
Cunningham are both identified as “Borrower.”
Id. ¶ 12.
forbearance agreement allegedly states that “the
Borrower is in possession of the Alfa Romeo and the Ferrari;
that the Borrower is in default under the [security
agreement]; that there is an outstanding balance due under
the [security agreement]; and that the Borrower requests
[Ferrari Financial] forbear from exercising its rights under
the [security agreement].” Id. ¶ 13.
forbearance agreement also allegedly references a consignment
agreement. Id. ¶ 14. Either the forbearance
agreement or the consignment agreement allegedly states that
during Ferrari Financial's possession and control of the
two cars, “it will market and attempt to sell the
automobiles, and will forbear from exercising any of its
rights under the [security agreement] with respect to the
outstanding balance.” Id. The forbearance
agreement further allegedly states “that any proceeds
from the sale of the Alfa Romeo or the Ferrari will be used
to satisfy the Borrower's outstanding obligations under
the [security agreement], and that proceeds over the payoff
would go to Premier and Cunningham.” Id.
During the forbearance period, Ferrari Financial will
allegedly use reasonable efforts to sell the cars for
“a price that is sufficient to payoff the Outstanding
Balance.” Id. ¶ 15. The combined
appraised values of the two cars allegedly “were and
are significantly more than the outstanding balance.”
Id. ¶ 16.
consignment agreement allegedly does not identify a borrower
or lender, similarly to the forbearance agreement.
Id. ¶ 18. Ferrari Financial is listed as the
“Consignee” and Mr. Nicotrais listed as the
December 14, 2018, Mr. Nicotra signed the consignment
agreement. Id. ¶ 19. An “Authorized
Representative of Ferrari Financial Services, Inc.”
signed the consignment agreement the same day. Id.
about December 14, 2018, both cars were delivered to 250
Sylvan Avenue in Englewood Cliffs, New Jersey, the address of
Ferrari Financial. Id. ¶¶ 21; 4.
Financial allegedly did not sell either car. Id.
¶ 22. Nor did Ferrari Financial allegedly attempt to
sell either car in a commercially reasonable manner, use
reasonable efforts during the forbearance period to sell
either car, or use reasonable efforts to sell either car
during the forbearance period “for a price sufficient
to pay off the outstanding balance.” Id.
¶ 23. Ferrari Financial allegedly put in minimal,
inexpensive efforts to sell the car, none of which were
commercially reasonable. Id. ¶ 25.
reasonable methods to sell the cars allegedly would include:
marketing and selling the cars separately; showing the
automobiles in dealerships; and entering the cars in
“at least three major auctions for rare and collectible
investment-grade automobile[s].” Id. ¶
tele-marketing and advertising efforts undertaken by Ferrari
Financial allegedly caused the two cars “significant
negative publicity[, ]” which Ferrari Financial
allegedly should have understood. Id. ¶ 28. The
allegedly lackluster efforts “tarnished the reputation
of each of these automobiles, and greatly diminished and
undermined the market” for each. Id. ¶
28, 2019, Ferrari Financial removed this case to federal
court. Notice of Removal, ECF No. 1 (May 28, 2019). See
also Statement in Support of Removal, ECF No. 2 (May 28,
2019); Notice of Pending Mots., ECF No. 3 (May 28, 2019). The
original Complaint alleged breach of contract, breach of
covenant of good faith and fair dealing, negligence, breach
of fiduciary duty, violation of the Connecticut Unfair Trade
Practices Act (“CUTPA”), and constructive trust.
3, 2019, Ferrari Financial timely filed a motion to dismiss
or transfer venue. Mot. to Dismiss or Transfer Venue, ECF No.
12 (July 3, 2019) (“Mot. to Dismiss”); see
also Mem. in Support of Mot. to Dismiss, ECF No. 13
(July 3, 2019) (“Def.'s Mem.”).
August 23, 2019, Plaintiffs timely filed a memorandum in
opposition. Mem. in Opp., ECF No. 16 (Aug. 23, ...