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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION CAPITAL PROMOTIONS, L.L.C., a Limited Liability Company, Plaintiff, v. DON KING PRODUCTIONS, INC., Defendant. ) ) ) ) ) ) ) ) ) )

No. 4:10-CV-0048HEA

OPINION, MEMORANDUM AND ORDER This matter is before the Court on Defendant Don King Productions, Inc.'s ("DKP" hereinafter) Motion for Summary Judgment [ECF No. 39]. Plaintiff Capital Promotions, L.L.C. ("Capital") filed a Memorandum in Opposition to DKP's motion [ECF No. 45], to which DKP replied [ECF No. 52]. For the reasons set forth below, DKP's motion is granted. Factual Background1 Capital filed this action against DKP on January 12, 2010, alleging intentional interference with contractual relationships (Count I), fraud (Count III), conspiracy to interfere with contractual relationships (count V), and prima facie tort (Count VII) relative to an agreement between DKP and Walter Tyeson Fields ("Fields") for a

The Court's recitation of the facts is drawn form the parties' statements of material facts filed in conjunction with Fraternity Defendants' motion for summary judgment and Plaintiff's opposition.

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bout between Fields and Ray Lunsford in St. Louis, Missouri, on February 5, 2005 ("St. Louis Fight"). Capital contends that it had a Promotional Rights Agreement ("PRA") with Fields, of which DKP was aware, providing Capital with exclusive rights to promote all fights for Fields. Plaintiff also seeks punitive damages against DKP (Counts II, IV, VI, and VIII). Capital and Fields signed a PRA in February 2000. The PRA granted Capital exclusive rights to schedule fights involving Fields from February 4, 2000 through February 4, 2005, unless otherwise noted. Pursuant to the terms of the PRA, Capital was to provide Fields with a minimum of four fights per year during the term of the PRA. In order for a bout to be arranged under the PRA, the agreement required Fields and Capital to execute Capital's customary bout agreement and/or the standard boxing contract required by the athletic or boxing commission with jurisdiction over the bout. In September of 2003, Fields fought Sherman Williams for a purse of $18,000. Although the reasons are disputed, there was an issue with this check clearing. In December of 2003, Fields fought Julius Long in a fight promoted by Capital for a purse of $10,000. The check for the purse, tendered by Capital to Fields, bounced. After the second purse payment from Capital to Fields bounced, Fields retained counsel to represent him and refused to speak to Capital directly. Fields testified that as of January of 2004, Fields did not believe that Capital was his promoter. On January 15, 2004, the law firm of Kolesar and

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Leathem sent a letter to Capital claiming that Capital had breached the PRA with Fields, and that the PRA was terminated.2 On November 8, 2005, Fields and Capital began a three day arbitration proceeding administered by the American Arbitration Association ("AAA"). The proceeding was styled "Walter Tyeson Fields, Claimant, and Capital Promotions, LLC and Bob Stupak Presents, LLC, Arbitration No. 79 181 00070 05" (the "Arbitration"). Capital was represented by counsel, it introduced exhibits, it presented testimony from three witnesses, and cross-examined three other witnesses. The Arbitrator's Award stated in part: Based upon the foregoing, it is the Arbitrator's decision: (1) (2) CAPITAL take nothing by way of its alleged claims which were never properly filed with AAA. FIELDS be awarded the contractual amount of $2,500 per fight for the three fights not scheduled by CAPTIAL during the remaining term of the PRA, which ended on August 4, 2005, for a total amount of $7,500. CAPITAL pay cost of Arbitration of Claimant. CAPITAL pay attorney fees of Claimant in the amount of $10,000, for total award of attorney fees to Claimant of $15,000. CAPITAL pay all other costs of this Arbitration submitted by AAA with fifteen days of this decision.

(3) (4) (5)

Plaintiff disputes that the Law Office of Kolesar & Leatham represented Fields at the time they dispatched the letter; however, upon review of the January 15, 2004 correspondence, it is clear to the Court that Kolesar & Leatham were contacting Plaintiff on behalf of Fields, their client. See ECF No. 39, Exh. 4.

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ECF No. 39, Exh. G at 7.3 Summary Judgment Standard The standard for summary judgment is well settled. In determining whether summary judgment should issue, the Court must view the facts and inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Woods v.DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005); Littrell v. City of Kansas City, Mo., 459 F.3d 918, 921 (8th Cir. 2006). The moving party has the burden to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in his pleadings but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Anderson 477 U.S. at 256; Littrell , 459 F.3d at 921. "The party opposing summary judgment may not rest on the allegations in its pleadings; it must `set forth specific facts showing that there is a genuine issue for trial.'" United of Omaha Life Ins. Co.
The Arbitrator's Award was confirmed by the District Court for Clark County, Nevada on June 8, 2006.
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v. Honea, 458 F.3d 788, 791 (8th Cir.2006) (quoting Fed.R.Civ.P. 56(e)); "`Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)." Hitt v. Harsco Corp., 356 F.3d 920, 923 (8th Cir. 2004). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party" on the question. Anderson, 477 U.S. at 248; Woods, 409 F.3d at 990. To survive a motion for summary judgment, the "nonmoving party must `substantiate his allegations with sufficient probative evidence [that] would permit a finding in [his] favor based on more than mere speculation, conjecture, or fantasy.' Wilson v. Int'l Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)(quotation omitted)." Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003). A plaintiff may not merely point to unsupported self-serving allegations, but must substantiate allegations with sufficient probative evidence that would permit a finding in the plaintiff's favor. Wilson v. Int'l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir.1995). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. 242 at 252; Davidson & Associates v. Jung, 422 F.3d 630, 638 (8th Cir. 2005). Summary Judgment will be

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granted when, viewing the evidence in the light most favorable to the nonmoving party and giving the nonmoving party the benefit of all reasonable inferences, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Samuels v. Kansas City Mo. Sch. Dist., 437 F.3d 797, 801 (8th Cir. 2006). "Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment." Thomas v. Corwin, 483 F.3d 516, 526-7(8th Cir. 2007). "Simply referencing the complaint, or alleging that a fact is otherwise, is insufficient to show there is a genuine issue for trial." Kountze ex rel. Hitchcock Foundation v. Gaines, 2008 WL 2609197, 3 (8th Cir. 2008). Discussion Defendant DKP requests that the Court grant it summary judgment on all counts on the grounds that, as a matter of law, Capital is collaterally estopped from contesting that it committed a prior, material breach of the PRA and that Fields's participation in the St. Louis fight was not a breach of the PRA. Further, DKP suggests that the Court grant it summary judgment because it was the actions of Capital, not DKP, that caused Capital to sustain any of its alleged injuries. Additionally, Defendant argues the Court should grant DKP summary judgment because Capital cannot prove that it sustained any damage as a result of DKP's

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conduct. And finally, DKP contends that summary judgment is appropriate in favor of DKP because the claims for punitive damages and/or conspiracy are dependent upon the other claims on which DKP should be granted summary judgment. Issue Preclusion / Collateral Estoppel DKP contends that Capital is precluded from re-litigating any issue in this case that is identical to an issue decided in the Arbitration. Courts are to look at state law in determining whether to apply issue preclusion, also known as collateral estoppel. Royal Ins.Co. of Am. v. Kirksville Coll. Of Osteopathetic Med., Inc., 304 F.3d 804, 807 (8th Cir.2002). Under Missouri law, three factors are considered in determining whether to apply the doctrine of collateral estoppel: (1) whether the issue decided in the prior adjudication was identical to the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; and (3) whether the party against whom collateral estoppel is asserted was a party in privity with a party to the prior adjudication. Liberty Mut. Ins.Co. V. FAG Bearings Corp., 335 F.3d 752, 758 (C.A.8 Mo. 2003). In some cases, courts are to apply an additional factor when analyzing collateral estoppel. Id. In instances where non-mutuality exists among the parties in the previous and current litigations, courts are to determine whether the party against whom preclusion is asserted had a "full and fair opportunity" to litigate the issue. Id. quoting Aetna Cas. & Sur. Co. v. Gen.

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Dynamics Corp., 968 F.2d 529, 532-533. Where there has been a final and binding arbitration between parties, courts are collaterally estopped from re-litigating the facts determined in the arbitration proceeding. Pratt v. Purcell Tire and Rubber Co., Inc., 846 S.W.2d 230, 233 (8th Cir.1993). With regard to the elements of collateral estoppel, Capital agrees with Defendant DKP that the issue in the first action was identical to the issue in the present action. Further, Capital agrees with DKP that the Arbitration Award is a final judgment on the merits. Capital also agrees that DKP was in privity with Fields, and that the third collateral estoppel factor has been met. Thus, Capital admits that the collateral estoppel elements have been met with regard to the Arbitrator's Award; however, Capital's interpretation of the Award differs from DKP's. Capital contends the Arbitrator found the PRA valid through August 4, 2005 and that Defendant is precluded from arguing that Capital did not have an enforceable contract with Tye Fields on February 5th of 2005. While the Arbitrator's Award is by no means a beacon of clarity, there are firm conclusions to be drawn from it. Specifically, the Arbitrator held that Capital failed to schedule the agreed upon number of fights, which was four fights per year. The plain language of the Arbitrator's Award states, "CAPITAL, by failing to fulfill its contractual obligation as to the number of fights promoted for Fields in said time

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frame, breached the PRA." ECF No. 39, Exh. G at 6 (emphasis added). To determine the time frame to which the Arbitrator was referring, the Court had to look no further than the two paragraphs immediately preceding the "said time frame" language. Upon review of the Award, the time frame to which the Arbitrator was referring was "July 10, 2004 through February 4, 2005." Id. During that period

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