Opportunity Fund, LLC v. Epitome Systems, Inc., 912 F. Supp. 2d 531

Opportunity Fund and Epitome executed a May 2008 Loan and Security Agreement granting Opportunity Fund a security interest in Epitome’s assets as collateral.
Epitome issued a July 2008 Secured Promissory Note to repay $100,000 by August 31, 2008, with a NY law and New York forum clause.
In March 2009, Epitome’s assets were sold to Savana via a Bill of Sale, which Plaintiff contends was a de facto consolidation/merger and a fraudulent attempt to escape liability.
Savana contends the transaction was an asset purchase at a public sale by Sovereign Bank, with no assumption of Epitome’s liabilities.
Plaintiff amended the complaint to name Savana as the defendant; Savana moves to dismiss for lack of personal jurisdiction, for forum, and for failure to state claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Savana has specific jurisdiction as Epitome’s successor	Epitome’s contacts sustain jurisdiction; Savana is its successor.	Savana lacked the necessary contacts and is not a proper successor for jurisdiction.	Specific jurisdiction over Savana remains proper; 12(b)(2) denied.
Whether the forum selection clause in the Note warrants dismissal under 12(b)(3)	Clause should enforce forum in New York, supporting dismissal elsewhere.	Clause precludes proper venue; dismissal warranted.	12(b)(3) motion denied; court may consider forum non conveniens sua sponte but declines to decide here.
Whether New York law governs successor liability and underlying contract claims	Choice of NY law applies to successor liability and contract claims.	Potential Ohio law governs; forum law should apply as chosen.	New York law governs; NY standards for successor liability apply to the claims.
Whether plaintiff’s conversion claim is duplicative of contract and should be dismissed	Conversion is a separate remedy from breach of contract.	No distinct tort; damages arise from contract breach.	Count II (conversion) is dismissed; remaining counts survive.
Whether the remaining counts (breach of contract, promissory estoppel, unjust enrichment) state a claim against Savana as successor	Plaintiff pleads valid theories against Savana as successor.	Some theories fail as a matter of law given the alleged contract.	Counts I, III, and IV survive; Count II dismissed.

Thomson v. Toyota Motor Corp. Worldwide, 545 F.3d 357 (6th Cir.2008) (alter ego/successor jurisdiction compatible with due process)
Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640 (5th Cir.2002) (successor jurisdiction for alter ego/successor)
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (U.S. 1985) (purposeful availment and minimum contacts framework)
Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544 (6th Cir.2007) (minimum contacts in Rule 12(b)(2) analysis)
Nationwide Mut. Ins. Co. v. Tryg Int’l Ins. Co., Ltd., 91 F.3d 790 (6th Cir.1996) (three-part due process framework for specific jurisdiction)
Calphalon Corp. v. Rowlette, 228 F.3d 718 (6th Cir.2000) (long-arm statutory/due process alignment)
CompuServe Inc. v. Patterson, 89 F.3d 1257 (6th Cir.1996) (resolve Rule 12(b)(2) with favorable view to non-movant)