IN THE CIRCUIT COURT OF THE 11II-!

JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNT,]:-, FLORIDA CASE NO:

10- 0 4983 CA 1;:; "i
L.

DON'T ASK, LLC, a Florida limited liability company, Plaintiff,

v.

SHAUN REES, individually, and RK NETMEDIA, IN&, a Florida corporation, Defendant. --------------------------~/ COMPLAINT Plaintiff, DON'T ASK, LLC, ("DON'T ASK") sues, Defendants SHAUN REES ("REES") and RK NET MEDIA, INC. ("RK") and states: 1. This is an action for damages in excess of $15,000.00, exclusive of casts,

,

interest and attorney's fees.
~~

2.

Plaintiff, DON'T ASK, is a Florida limited liability corporationwith-its

principal place of business in Ft. Lauderdale, Broward County, Florida
-.{ (/)

3.

Defendant RK is a Florida corporation with its principal place of business

in Miami Beach, Miami-Dade Florida. 4. Florida. 5. Jurisdiction and venue is appropriate with this Court since Defendant Defendant REES is a resident of Pompano Beach, Broward County

REES entered into a contract with Plaintiff in Miami, Dade County, Florida. Further the subject contract provides that venue shall be in Dade County, Florida. See Ex. "A"
EHRENSTEIN CHARBONNEAU CALDERiN
www.ecclegal.com 501 Brickell Key Drive· Suite 300· Miami, FL33131· T. 305.722.2002 . F. 305.722.2001·

o.

On or about January 4, 2008, Plaintiff entered into an Exclusive Personal with Defendant REES for a term of 7 years. See

Services Agreement ("Agreement") Exhibit "A". 7.

Pursuant to the Agreement, Plaintiff agreed to pay Defendant REES an

advance of $15,000 per month as an advance of company receipts from Plaintiffs services and merchandise. See Ex. "A" ~7(a). 8. In consideration for the advance, Defendant REES granted his personal

services and exclusive rights to Plaintiff. The personal services include, but were not limited to, his performances as an on-screen personality for Adult Entertainment and

other Entertainment mediums. See Ex. "A" ~6(a). Defendant also granted Plaintiff the exclusive right to act as Plaintiff's personal manager. See Ex. "A"~6(b). Defendant

agreed to pay Plaintiff 15% of his earnings for management of his career. See Ex. "A" ~7(b). 9. As a result of Plaintiff services, REES has become a know performer in

the Adult Entertainment Industry and as a result, products containing his services have enhanced value, creating a franchise of films in which REES is the starring actor. Upon information and belief, Defendant, REES has been circumventing the Agreement by providing services directly to the Adult Entertainment Industry and other Entertainment mediums, including Defendant RK, in violation of the Agreement. 10. All conditions precedent to the filing and/or maintenance of this action has

been performed or has been waived. COUNT I - BREACH OF CONTRACT (REES)

2
EHRENSTEIN CHARBONNEAU CALDERIN
. F. 305.722.2001 . www.ecclegal.com 501 Brickell Key Drive· Suite 300 . Miami, Fl33131 . T. 305.722.2002

11. 12.

Plaintiff incorporates

this Count by reference above-paragraphs 1-! O.

Defendant, REFS breached his agreement with Plaintiff by performing

services for other persons and entities in the Adult Entertainment industry and by failing to pay Plaintiff 15% of his career earnings. 13. Plaintiff has been damaged by Defendant's breach of the contract.

Wherefore, Plaintiff demands judgment against the Defendant together with prejudgment interest. COUNT II- TORTIOUS INTERFERENCE WITH A CONTRACT (RK) 14. 15. Plaintiff incorporates into this Count by reference above-paragraphs 1-10. Plaintiff and Defendant, REES entered into an Agreement wherein REES

was required to provide exclusive personal services in the Adult Entertainment Industry and other Entertainment medium services for Plaintiff. 16. At all times material, Defendant, RK knew of the exclusive agreement

between Plaintiff and Defendant, REES and had previously acknowledged this fact in a Release and Settlement Agreement. Defendant, RK has taken for itself the "Franchise"

of REES, using his celebrity goodwill within the Adult Entertainment Industry for itself, and thereby depriving Plaintiff of earning money from that franchise. 17. Defendant unjustifiably interfered with the contract between Plaintiff and from Defendant REES' s services in the Adult

REES so it could earn profits Entertainment Industry. 18.

Because of Defendant RK's wrongful conduct, Plaintiff has been damaged,

and has lost its commissions from Defendant REES services. Wherefore, Plaintiff demands judgment against the Defendant. 3
EHREN STEIN CHARBONNEAU
CALDERiN
501 Brickell Key Drive· Suite 300· Miami, Fl33131 . T. 305.722.2002 . F. 305.722.2001 . www.ecclegal.com

COUNT III - PERMANENT INJUNCTIVE RELIEF (RK & REES)

19. 20.

Plaintiff incorporates into this Count by reference above-paragraphs 1- 10. Plaintiff has been irreparably harmed and will continue to be harmed REES refusal to provide his exclusive services to Plaintiff. or consent, Defendant, REES has been rendering

because of Defendant,

Without Plaintiff s knowledge

performances in the Adult Entertainment industry and other Entertainment mediums and he has refused to perform such services for Plaintiff. Defendant, REES has also failed to

use Plaintiff as his personal manager, and continues to enter into contracts directly with third parties to the detriment of Plaintiff. 21. Plaintiff has been irreparably harmed and will continue to be harmed

because of Defendant, RK's tortuous interference in the contact between Plaintiff and REES. Defendant, RK continues to interfere with the Agreement by directly procuring Defendant, REES' services and by contracting with him, so as to circumvent the payment of fees due to Plaintiff under the terms of the Agreement. Plaintiff has no adequate

remedy at law and has a clear legal right to the relief sought herein. 22. The entry of an injunction will serve the public interest. Plaintiff requests the Court enter a permanent injunction

WHEREFORE,

prohibiting Defendants, its employees, officers, agents, and others acting at its direction and that: (a) Defendant REES be enjoined from negotiating andlor rendering services directly with any third party; which conflict with the pledge of his acting services to Plaintiff. 4
EHRENSTEIN CHARBONNEAU CAlDERIN
F. 305.722.2001· www.ecclegal.com 501 Brickell Key Drive· Suite 300· Miami, FL33131' T. 305.722.2002'

(b)

Defendant RK be enjoined from contracting or utilizing Defendant REES' services in the Adult Entertainment Industry unless they obtain authorization and approval from Plaintiff.

Dated this

JO day of January

2010. EHRENSTEIN CHARBONNEAU CALDERIN 501 Brickell Key Drive, Suite 300 Miami, Florida 33131 T. 305.722.2002 F. 305.722.2001

RICHARD C. WOLFE Fla. Bar No: 355607

5
EHRENSTEIN CHARBONNEAU CALDERIN
. F. 305.722.2001 . www.ecclegal.com 501 Brickell Key Drive· Suite 300 . Miami, FL 33131 . T. 305.722.2002

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II.

VIDEO PRODUCTION

1. Term. The term of this Agreement (the "Term") shall be for seven (7) years commencing on the Effective Date of this Agreement unless otherwise terminated sooner by Company. . 2. Delivery. this Agreement. 3. You will record and deliver a minimum.of fifty two (52) Videos over the term of

Filming Procedure.

(a) Company will pay Video Production COSt for each Video. You will use gOOdfaith efforts to make technically and commercially satisfactory Videos.f!elivery of a Video will occur only when you deliver to Company the Videos and all materials which Company needs to release a Video (including actor clearances and certifications in accordance with all laws an~ regulations governing the adult entertainment industry) without any third party claims and as oth~rwise in compliance with this Agreement. (b) You shall not enter into any agreement of behalf of Company or incur, directly or indirectly, any liability or expense of any kind for which Company may be held liable, in connection with any filming session hereunder or otherwise, without having first 0 tained Company's prior written approval as to the nature, extent and limit thereof. 4. Ownership of Rights and Exclusivity.

. (a) Company owns, in perpetuity, all rights i? the Videos and any other recordings made by you before the Term and delivered to Company, toqether with the performances on those recordings and copyrights in the recordings. Company also ownslany artwork used in the packaging or exploitation of your records. For the purposes of this clause, you are our employee for hire. If for any reason, you are not considered our employee for hire, you hereb~ assign to Company all copyrights in the Videos and any other recordings made by you before the Term and delivered to Company for the life of such copyrights. Any grant to Company of copyrights includes a~y extensions and renewals of those copyrights. (b) Company has the exclusive right to exploit and license or assign for exploitation the Videos delivered in connection with this Agreement or any derivatives thereof. Company can exploit the Videos in any Format or any other medium or field of use, in ~he form delivered or otherwise. Company also has the exclusive right to use your Licensed Marks in connection with our exploitation of the Videos or as otherwise set forth in this Agreement. (c) You hereby agree that all Videos made prior to this Agreement that you acquire the rights to prior to, during or after the Term are hereby deemeoltncorporated by reference with the same force. effect and rights granted to Company as for newly created Videos and all such rights are hereby assigned to Company.

.

5. Recoupment. Company has the right to recoup from Costs, advances and other recoupable costs. III. PERSONAL APPEARANCES

cross

Receipts all Video Production

1. Rights Granted. You hereby grant, for the Term and the Territory, to Company the following exclusive rights to: (i) promote your live performances including but not limited to live appearances at venues and tours; (ii) identify Company as the etclusive promoter thereof; (iii) sell-off your live performances to a third party local promoter; (iv) to use our Licensed Marks in connection with the performances, concerts, tours, tour website, including the ad ertising and promotion thereof; (v) secure sponsorship agreements granting sponsorship rights in c~nnection with your performances, and

Page 6 of 8

CASE NO. 10-04983 required to provide exclusive personal services in the Adult Entertainment Industry and other Entertainment medium services for Plaintiff. 16, At all times material, Defendant, RK knew of the exclusive agreement between Plaintiff and Defendant, REES and had previously acknowledged this fact in a Release and Settlement Agreement. Defendant, RK has taken for itself the "Franchise" of REES, using his celebrity goodwill within the Adult Entertainment Industry for itself, and thereby depriving Plaintiff of earning money from that franchise. 17. Defendant (RK) unjustifiably interfered with the contract between Plaintiff and REES so it could earn profits from Defendant REES's services in the Adult Entertainment Industry. 18. Because of Defendant RK's wrongful conduct, Plaintiff has been damaged, and has lost its commissions from Defendant REES services. 4. Plaintiff and his counsel have violated § 57.105, Florida Statutes, and should be sanctioned because in a Release and Partial Settlement, Plaintiff affirmatively consented to: A. RK (and LLL) contracting, paying, and utilizing Rees' s services in the Adult Entertainment Industry in the future without having any obligation to obtain Don't Ask's authorization and approval (which Don't Ask incredibly asserts); and B. The Release and Partial Settlement not serving as the basis for a cause of action against Defendant (which is exactly what Don't Ask has improperly attempted to do in its Complaint). Plaintiff s position is frivolous and sanctionable. that Plaintiff would take this position before this Court. UNDISPUTED FACTS On January 4, 2008, Plaintiff contends to have entered into an Exclusive Personal Services Agreement with Rees, a copy of which is attached as Exhibit A to Plaintiff s Complaint. Subsequently, on June 12,2008, after issues arose solely between Rees, RK (and LLL), RK, Rees, LLL, and Don't Ask entered into a Release and Partial Settlement (the "Release"). Release is specifically referenced in Paragraph 16 of Plaintiff s Complaint. The Indeed, it is nothing short of an outrage

Curiously enough,

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CASE NO. 10-04983CA however, it was not attached to Plaintiff s Complaint. Motion. The Release is attached as Exhibit A to this

Plaintiff's allegations which purportedly support its action for tortious interference are

squarely contradicted -and thus negated- by the Release. The Release independently defines Rees as the "Model"; Mike Imber and/or LLL

Advertising, Inc. as the "Producer"; RK Netmedia, Inc. as "RK" (the distributor of the films); and Don't Ask, LLC as "Dont Ask" (the furnisher of personal services to Rees). or individuals agreed to, accepted, and executed the Release. The Release expressly provides that RK (and the Producer) shall continue to negotiate, contract with, and compensate Rees directly (not Don't Ask) forfuture services as follows: Whereas, Model, Producer and RK wish to commence good faith discussions with respect to the terms and conditions upon which Model will render future services to Producer; Whereas, Don't Ask is entering into this Release and Partial Settlement (the "Release ") solely for the purposes of perfecting the rights granted to RK and/or the Producer. Nothing contained in the Release shall serve as the basis for Plaintiff to bring an action against Defendant or the Producer; 1. Recitals. The parties agree that the above recitals are true and correct and are incorporated herein by reference. 2. Release. ... Additionally this Release shall, subject to Model's receipt of the consideration set forth in Section 3 hereof, serve to confirm and ratify that the release contained herein shall apply, in all tespects, to Model's future service and Model's agreement to sign any and all future documentation RK and Producer's may reasonably require to affirm RK and Producer's rights with respect to Model's future services performed for RK and Producer on the terms contained herein. 3. ... Provided Model is continuing to film "Milfhunter" episodes, RK agrees to pay Model $6,500 bi-weekly (the "Royalty Payment") through the date of the last new episode featuring Model's Services is first posted on the weekly updated www.milihunter.com site (the "End Date"). The parties agree to negotiate in good faith an ongoing royalty that Model will receive after the End Date '" All of these entities

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CASE NO 10-04983 4. Continuation of Claims. The parties acknowledge that Model has taken the position that Model may be owed additional compensation with respect to the performance of such services or with respect to the past or future exploitation of the Content. Producer and RK dispute that Model is owed additional compensation of the Content except as provided herein; and Producer and RK believe that Model has received compensation in excess of the amount that Model should have been paid under the verbal agreement between Model and Producer ... Notwithstanding anything herein to the contrary, the parties agree that the resolution of any unresolved disputes between the parties shall not effect the grant of rights contained herein or RK's obligation to compensate Model as provided herein. See Exhibit A (emphasis added). Don't Ask further agreed that nothing in the Release shall serve as the basis for a cause of action by Don't Askagainst RK as follows. Whereas, ... Nothing contained in the Release shall serve as the basis for Plaintiff to bring an action against Defendant or the Producer; Id (emphasis added). Therefore, based upon the above, RK was expressly authorized by Plaintiff to perform the very activities which Plaintiff alleges are the basis of their claims against RK. MEMORANDUM OF LAW

Under Florida Statutes Section 57.105, a party can recover attorney's fees for having to litigate claims or defenses that have no legal or factual support. A party can also recover fees for

unnecessary litigation, and for unwarranted delays caused by the opposing party or its counsel. Florida Statutes § 57.105 provides as follows: 1. Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's

attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

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CASE NO, 10-04983 CA

a.
b.

'Vas not supported by the material facts necessary to establish the claim or defense; or Would not be supported by the then-existing law to those material facts.
application of

Fla. Stat. § 57.105 (emphasis added).

Prejudgment interest is awardable under this statute.

Id.

Plaintiff and Plaintiff s counsel filed his case with full knowledge that there was no legal or factual basis for the claim. Before filing his case, Plaintiff, or its counsel, knew or should have

known that Counts II and III of the Complaint are frivolous because: • Plaintiff has not (and cannot) allege sufficient facts to establish the requisite malicious interference sufficient to state a claim for tortious interference with a contract. The Release, which is specifically referenced in Paragraph 16 of Plaintiffs Complaint, contradicts the allegations asserted by Plaintiff. Defendant was expressly authorized by Plaintiff in the Release to perform the very activities which Plaintiff alleges are the basis for their claims of interference. Plaintiffs contention that RK had some sort of obligation to obtain authorization and approval from Plaintiff to contract or utilize Rees's services in the Adult Entertainment Industry is belied by the express terms of the Release. The Release expressly provides that RK had the right to negotiate, contract with, and compensate Rees directly (not Don't Ask).
,

Plaintiff cannot claim that any of Defendant's actions were unjustified because, at all times material hereto, Defendant's sole purpose was to safeguard their own business interests, i.e., safeguard its relationship with Rees pursuant to the express terms of the Release, rather than interfere in Don't Ask's relationship. Plaintiff cannot establish as a matter of law any of the elements necessary to plead a claim for injunctive relief. The subject of Count III concerns the collection of money damages. Paragraph 21 of Plaintiffs Complaint specifically alleges, "Defendant, RK continues to

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CASE NO. 10-04983 CA interfere with the Agreement by directly procuring Defendant, Rees' services by contracting with him (which RK has every right to do per the Release), so as to circumvent the payment of fees due to Plaintiff under the terms of the Agreement." (emphasis added). The alleged interference therewith will not (and cannot) cause, as a matter of Florida substantive law, irreparable injury. Where a party has an adequate legal remedy and the opportunity to pursue a . money judgment (without regard to whether any such judgment, if obtained, is. collectible), injunctive relief is not an available remedy. Under these circumstances, Plaintiff and Plaintiffs counsel knew or should have known that its claims are frivolous. Therefore, sanctions are warranted under Florida Statutes § 57.105. Pursuant to Florida

Statutes § 57.1 05(4), this motion was served on counsel for Plaintiff on March 8, 2010, but was not filed with the Court. CONCLUSION Based upon the foregoing, it is clear that Plaintiff and Plaintiff s counsel were fully aware that they had no grounds to assert meritorious claims against Defendant. This is a "textbook

example" of when Florida Statutes § 57.1 05 should be applied, and an award for attorneys' fees should be ordered in favor of Defendant. WHEREFORE, under the authority of Florida Statutes § 57.105, Defendant respectfully requests that this Court enter an order: (1) determining that Defendant is entitled to attorneys'

fees under Florida Statutes § 57.105 from Plaintiff; (2) reserving jurisdiction to determine the amount of the award; and (3) granting any other relief this Court deems proper.

.

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CASE NO. 10-04983

Respectfully submitted, LEVINE KELLOGG LEHMAN SCHNEIDER + GROSSMAN LLP Counsel for Defendant Miami Center, 34th Floor 201 South Biscayne Blvd. Miami, Florida 33131 Phone: (305) 403-8788 Fax: (305) 403-8789 By: \
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And BRYN & ASSOCIATES, P. A. Co-counsel for Defendant One Biscayne Tower, Suite 2680 2 South Biscayne Boulevard Miami, Florida 33131 Telephone: 305.374.0501 Facsimile: 305.372.8068 MARK 1. BRYN, P.A. Florida Bar No. 321842

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fll( to ~l'icdel in connecaon with SErvices the date hereof or the exptoitanon of the products of such Services; or, (2) prohibit Mode! or from prosecuting or defending any claims that either of them may have with respect to the IP Rights. Notwithstanding anything herein to the contrary. the parties agree that the resolution of any unresolved disputes between the parties shall not effect the grant of rights contained herein or IUCsobligation to compensate Model as provided herein. Producer and/or
to

rue

4.

Mlscellaneous.
a. Each party shan bear their own attorneys' fees with regard to this Release. h. This Release shall be governed by and construed under the laws of the State of Florida with venue Iying in the courts located In Miami-Dade

County.
C.

In the event that any term or condition of this Release is adjudged by a court of competent Jurisdiction or by operation of any applicable law to be invalid or unenforceable, it shall not affect any other clause or provision, wHh the remainder of this Release remaining in full force and effect.

d. Each party represents that such party has full po wer and authority to enter into thls Release, such party is legally competent to do so arid the same does not violate any term or provision of any contract, agreement, rtocument, court order or law by which such party may be
bound, e. Thls Release may be executed in one or more counterparts,

which f.

shan constitute one and the same instrument.

each of

This release sbaH be deemed dated the date of last execution hy the parties hereto.

AGl~EED TO AND ACCEPTED:

X~O(I,. -Shawn Rees, i

ividually

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Agreed to and Accepted:

Name: (~..:\ ...~,h~' : (::::::"){J"'\.~\~
Title:

RK Netmedia, Inc.

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.

Acknowledgement of Rights Granted This Acknowledgement undersigned, is signed this 12th day of June, 2008, by the

Shawn Rees, to acknowledge that I have previously affirmed to RK

Netmedia, Inc (the "Company"), pursuant to that certain agreement executed in May 2008, and prior release agreements (collectively, the "Agreement"), my previous works I have appeared in and

grant of rights with respect to all videographic performed "Works"). services

for in connection with the "Milf Hunter" video series (the specifically acknowledges my previous grant of

This Acknowledgment

such rights to the Company including, but not limited to the right to use my name, aliases, likeness, and personal services in connection with or in promotion of the

Works and the Company's right and license to use all videos, films, photographs and soundtracks .produced in connection with and/or utilizing the Works and all

derivatives thereof for a perpetual term for use in various mediums including, but not limited to, video on demand, television and satellite broadcast.

Shawn Rees

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!i\JCi\/lDU/·\L SER\/iCE:8y delivering to the vvithiil GaiTled psrson 3 CCP/ of L~-iis the ~J((j~OUf"""D-T 3_8 endorsed by me, and at the same time! delivered to ths vvithin narned person a copy of the cd'nplajnt~ petjt!~ initjal pi6adjng as furnished by the piaintiff Of petitioner.

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I-]}. SUBSTITUTE SERVICE: 81( leaving a copy of this writ, with the date and hour of service endorsed theron by me,
and a copy of the complaint, petition Of initiaf p!,s2ding as njfnishe1j tly thE: pJ2jntlff or petn~one( at the \.flli'thin(i2rned person's usual place of abode, with a member of his family above the age of (15) (18) years to 'Nit: HARK YASENCHEK, CO-RESIDENT and informing such person of their contents.

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CORPOF:/\TE SER\'lCE: By delivering 2. copy of th:s iNrit with the date and hour of service endorsed theron by rne and a copy of plaintiff's initial pleading as furnished by the plaintiff to _ as POSTED RESiDENTIAL:
SPiCUOUS

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of said corporation in the absence of any suoerior officer

By attaching a copy of this summons, tocsthsr with a copy of the complaint, to a coni.-.\ L,t:::..;

place on thE; property described therin. After at least two attempts, a minimum of six (S) hours apart
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The usual placeot
(ecoress posted)

residence of the tenant in

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f'JOSERVICE: For the reason that after diligent search and inquir/ failed to find said _________ County, Florida. OTHERRETURNS

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NOTE: NOT AT GIVEN ADD. ATTEMPTED 2ND ADD. 2739 POHPANO BCH, CURRENT RESIDENT BENJAMIN COHEN •
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RICHARD C .vJOLFE. ESQ. 501 BRICK.ELI, KEY DP.. ~S'TE MINH FL 33131
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