Professional Documents
Culture Documents
Defendant.
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Defendant Octane Film Cars, LLC (Octane), by its attorneys, Levi Lubarsky
Feigenbaum & Weiss LLP, for its answer to the Complaint of plaintiff Warner Bros. Pictures, a
division of WB Studio Enterprises Inc. (Warner Bros. or Plaintiff) filed on June 27, 2017,
3. Admits that it is a citizen of New York for diversity purposes, and admits that the
Complaint asserts claims exceeding $75,000, and states that the remaining allegations of
required.
4. Admits that Octane resides in this judicial district and states that the remaining
5. States that the Complaint speaks for itself as to what it purports to assert, and
denies that Plaintiff has stated any cause of action against Octane.
7. Admits that Octane is New Yorks premier source of film cars from the 1950s to
8. Admits that in December 2016, Octane and Plaintiff entered into an agreement
whereby Octane would procure for lease by Plaintiff two vintage BMW 507 automobiles for use
in filming the movie Oceans Eight in New York City in early February 2017; that the contract
price for the provision of the two BMWs in accordance with Plaintiffs specifications was
$200,000; that Octane provided written invoices to Plaintiff which Plaintiff agreed to pay, and
did pay in part, for services rendered by Octane in procuring the automobiles for lease; and that
Octane and Plaintiff exchanged certain draft agreements which were not signed, and otherwise
allege that the parties agreement was for one automobile, and states that in December 2016,
Octane and Plaintiff entered into an agreement whereby Octane would procure for lease by
Plaintiff two vintage BMW 507 automobiles for use in filming the movie Oceans Eight in New
York City in early February 2017 at a contract price of $200,000; states that Plaintiff breached
the foregoing agreement in January 2017 by unilaterally cancelling one of the automobiles when,
on information and belief, BMW offered to supply a similar automobile to Plaintiff at lower or
no cost; admits that, after said breach, Plaintiff offered to pay $124,500 for Octanes services in
connection with the second automobile, a price that would include compensation for Warner
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Bros. breach; admits that the component parts of the $124,500 figure included a $50,000 rental
fee; a $10,000 transportation fee; a $14,500 administrative/legal fee, including for work
previously performed; a $10,000 kill fee for the cancellation of one automobile; a $5,000 fee
for cancelling the wrapping of that automobile; a $5,000 finders fee; and a consulting fee of
$30,000.
10. Admits that Plaintiff paid Octane $100,000 as required by written invoices; denies
that the payment was a deposit; and admits that the film shoot, originally scheduled for
February 5, 2017 in New York City, had been pushed back to on or about and between February
11. Denies the allegations of paragraph 11 of the Complaint, except admits that
12. Denies the allegations of paragraph 12 of the Complaint, except admits that
Warner Bros. knew in December 2016 that the owners of the automobiles required the use of
Reliable Carrier, Inc. to transport the automobiles to New York City, knew that the entire risk of
loss was on Warner Bros. from the minute the automobiles left their respective owners custody
until they were returned, and knew that it was required to obtain sufficient insurance to cover its
13. Denies the allegations of paragraph 13 of the Complaint and states that Octane
was owed the $100,000 that it was paid, plus an additional $100,000 that has not yet been paid,
14. Repeats its responses to paragraphs 1-13 of the Complaint as though set forth in
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19. Repeats its responses to paragraphs 1-18 of the Complaint as though set forth in
20. Admits that the agreement between Octane and Plaintiff included a duty of good
faith and fair dealing and states that the remainder of paragraph 20 of the Complaint states a
legal conclusion as to which no response is required. To the extent that any further response is
23. Repeats its responses to paragraphs 1-22 of the Complaint as though set forth in
24. Admits that Octane received payment of $100,000 from Warner Bros. and denies
25. Denies the allegations of paragraph 25 of the Complaint, except admits that
Octane has refused to return the $100,000 to Warner Bros. because that money was owed to
Octane by Warner Bros. and Warner Bros. has no right to its return.
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DEFENSES
Octane, without assuming the burden of proof on those matters for which Warner Bros.
bears such burden, alleges for its defenses to Plaintiffs Complaint as follows:
FIRST DEFENSE
SECOND DEFENSE
29. The Complaint is barred because Warner Bros. failed to perform its contractual
obligations, including by, among other things, unilaterally cancelling one of the cars; materially
changing the date for delivery of the cars; materially changing the location for delivery of the
cars; and refusing to perform its insurance and transportation obligations for the cars.
THIRD DEFENSE
30. The Complaint is barred because Warner Bros. breached the duty of good faith
and fair dealing, by, among other things, arranging with BMW to supply a BMW 507 at lower
cost than the Octane contract price, and then delaying signing, and manufacturing pretextual
reasons not to sign, documentation for the gray BMW procured by Octane, in order to cause the
owner of that gray BMW to withdraw agreement to supply it. On information and belief, Warner
Bros. engaged in this conduct after it determined that it did not want the gray BMW 507
procured by Octane, and in an attempt to avoid paying contractual damages to Octane for
cancellation.
FOURTH DEFENSE
31. The Complaint is barred because return of the funds would result in unjust
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FIFTH DEFENSE
SIXTH DEFENSE
SEVENTH DEFENSE
34. Octane reserves the right to add to its defenses as additional information becomes
COUNTERCLAIMS
35. Octane asserts counterclaims against Warner Bros. for breach of contract, breach
of the duty of good faith and fair dealing, and for recovery in quantum meruit, arising from
Warner Bros. breach of an agreement to pay Octane for its procurement of two rare 1958 BMW
507 cars for lease by Warner Bros. in connection with filming the movie Oceans Eight in New
36. The Court has subject matter jurisdiction over the counterclaims pursuant to 28
U.S.C. 1332 because Octane is a citizen of New York and, on information and belief, based on
the allegations of the Complaint, Plaintiff is a citizen of Delaware and California, and the amount
37. The Court also has supplemental jurisdiction over the counterclaims pursuant to
28 U.S.C. 1367(a).
38. Venue is proper in this District pursuant to 28 U.S.C. 1391(a) because Octane
resides in this District and a substantial part of the acts and omissions giving rise to these
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39. Octane is in the business of procuring rare and vintage automobiles for use in
40. The automobiles to which Octane has access often are worth millions of dollars
and are owned by very wealthy individuals. These automobiles often have intrinsic value to their
owners that is beyond their dollar value, much as an artwork may have such value, based on the
41. In or about the summer of 2016, Octane was contacted by a prop master working
on behalf of Warner Bros. in connection with the movie Oceans Eight (the Prop Master).
Prop masters represent the production, and are responsible for organizing the purchase or rental
of all props. The Prop Master asked Octane to search for an exotic, vintage sports car, built in
the 1950s.
42. Octane informed the Prop Master, in substance, that people who owned these
types of rare and very expensive cars, and were willing to lease them, tended to be finicky and to
43. In or about October 2016, after Octane proposed various types of automobiles that
might be suitable, the Prop Master informed Octane that Warner Bros. was seeking two vintage
BMW Model 507 roadsters (BMW 507s or 507s) for use in the filming.
44. Octane informed the Prop Master that BMW 507s are very rare; that only about
250 507s were built; that not all survive; and that those that do survive are worth well over a
million dollars. Octane further explained that 507s tend to be meticulously restored and owned
by people who do not need the money they can earn by leasing them.
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45. After significant time and effort, Octane located two 507s, each built in 1958, one
in white and one in gray, each worth $3,000,000. Octane also located other 507s.
46. The Prop Master informed Octane that Warner Bros. wanted to proceed with
47. Because Warner Bros. wanted two identical gray cars, however, it was necessary
to have the exterior of the white car wrapped in gray, and its interior draped to change the
interior color from red to black. Due to the high risk of damage from the wrapping process,
many owners of valuable cars refuse to allow it. Octane, however, was able to secure the
owners agreement, and Warner Bros. agreed to pay the additional cost involved.
48. In or about early December, at the Prop Masters request, Octane provided written
contract terms for Warner Bros. These terms included, in substance and in part, that: 1) Octane
would arrange for the leasing of the white and gray 507s described in paragraph 45, above, from
their owners, for use in filming by Warner Bros. in New York City on or about February 5, 2017;
2) the white car would be wrapped/draped to match the gray car; 3) Warner Bros. had full
responsibility for the cars from the time they left the owners custody until they were returned,
and bore the entire risk of any loss; 4) Warner Bros. would procure sufficient insurance to cover
the foregoing liabilities; and 5) Warner Bros. would pay Octane $200,000 for its services
49. At or about the same time, and in all events by no later than December 13, 2016,
Octane informed Warner Bros that, as required by the owners of the 507s, transport of the cars to
New York City would be handled by Reliable Carriers, Inc. (Reliable), a highly regarded
carrier widely used to transport high end and priceless concept cars. Octane also supplied
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Warner Bros. with Reliables Certificate of Insurance, reflecting, among other things, $5,000,000
50. By agreement of the parties, the $200,000 contract price was to be paid in
installments. Octane had invoiced Warner Bros. for $30,000 on December 2, 2017. On
December 22, 2016, the Prop Master told Octane to send all of its remaining invoices, which
Octane did on the same day. Payment was required as follows: $30,000 by January 1, 2017;
$70,000 on or before January 5, 2017; $75,000 on or before January 23, 2017; and the final
payment of $25,000 (subject to change if, for example, additional services were required) was to
51. The Prop Master told Octane to proceed to do everything necessary to have the
two cars delivered for filming in New York City on time. Indeed, in a January 5 email to BMW
(which had been engaged to wrap the white 507), Octane, and others, the Prop Master wrote:
we would have both BMWs traveling to the NY/NJ area around Feb 3 and they arrive on the
5th, We would have six days to accomplish the physical wrapping and covering of the interior
panels of the white BMW to match the hero grey BMW 507. (Emphasis added).
52. Warner Bros. timely paid the first Octane invoice of $30,000.
53. Warner Bros. timely paid the second Octane invoice of $70,000.
54. Octane performed its obligations as agreed and was prepared to deliver the two
BMW 507s for filming in New York on February 5. In addition to having spent substantial time
and effort to locate the 507s, Octane expended substantial time and effort to arrange for the
wrapping of the white car, including, without limitation, by having numerous communications
with the Prop Master, Warner Bros., BMW, and BMWs agent. Octane also spent substantial
time and effort working with the car owners, who became increasingly concerned and impatient
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as Warner Bros. delayed in making plans, finalizing arrangements, and executing written
agreements with them, and addressing Warner Bros. and BMWs demands. Octane also spent
money, including making payment to one of the owners and retaining counsel to work on
finalizing written agreements between Octane and Warner Bros., and separately, between
Warner Bros. and the owners of the 507s. Warner Bros. well knew of Octanes expenditure of
55. On or about January 11, 2017, after Octane had invested substantial time and
effort in connection with procuring cars to Warner Bros. specifications, including the wrapping
project, Octane was told that Warner Bros. no longer wanted the white car, because it had found
a gray BMW 507 elsewhere. In breach of its agreement with Octane, Warner Bros. cancelled the
white 507.
56. On information and belief, Warner Bros. cancelled the white 507 because, in
January 2017, BMW, which had previously been unable to procure any 507s for the film,
supplied Warner Bros. with a similar gray 507. On information and belief, BMW was a sponsor
of Oceans Eight, and agreed to supply the similar gray 507 at lower or no cost. On information
and belief, Warner Bros. intentionally and in bad faith breached its contract with Octane, because
57. Octane objected to Warner Bros. attempt to extricate itself from the $200,000
contract to which it had agreed. Nevertheless, in an effort to reach accommodation, the parties
negotiated new terms pursuant to which Warner Bros. would pay Octane $124,500. That total
price included the following components: $25,000 per day for the rental of the gray 507 in New
York City in February, for a total of $50,000; $10,000 for transportation of the gray car; an
administrative/legal fee of $14,500 to account for fees that Warner Bros. had caused Octane to
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incur; a kill fee of $10,000 for Warner Bros. cancellation of the white car; a $5,000 finders
fee; a $5,000 wrap cancellation fee; and a $30,000 consulting fee. Warner Bros. had already
paid $100,000; the remaining payment was due either upon completion of filming or February
59. Warner Bros. knew that Octane was continuing its work to supply the gray 507
60. The gray 507 was scheduled to be transported to New York during the weekend
of February 4-5, 2017. Warner Bros., however, still, as of February 3, had not executed written
documentation, and the owner of the gray car became increasingly impatient and concerned with
Warner Bros. conduct. Warner Bros. was aware of the owners concerns and also knew that
there was a risk that if Warner Bros. continued to drag its feet, the owner would withdraw from
the agreement, because Octane had repeatedly informed Warner Bros., in substance, that the
owner would withdraw if the difficulty of the process (caused throughout by Warner Bros.
gamesmanship) began to outweigh the enjoyment of having the car used in the film.
61. On February 3, 2017, Warner Bros. counsel informed Octanes counsel that its
production schedule had changed; that filming had been delayed for at least a month; and that
62. Octane had no obligation to supply Warner Bros. with a gray BMW 507 in Los
Angeles in March. Rather, the agreement between Octane and Warner Bros. was for Octane to
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63. On information and belief, Warner Bros. well knew before February 3 that its
production schedule had been delayed by at least a month and that its filming location had
changed to a location 3,000 miles away, but did not inform Octane.
64. On information and belief, Warner Bros. knew before February 3 that it would not
need the gray BMW 507 that it agreed to pay Octane to supply.
65. On information and belief, Warner Bros. had determined before February 3 that it
would need only one gray BMW 507, and that it would use the car provided by BMW instead of
66. On information and belief, Warner Bros. decided before February 3, that it would
try to find a way out of its agreement with Octane which would not require it to pay contract
67. To that end, on or about February 1, Warner Bros. counsel told Octanes counsel,
for the first time, that Warner Bros. demanded a change to Reliables standard terms for
transporting the gray 507. Warner Bros. made this last-minute demand despite having known
since early December that the owner of the gray car required that Reliable be the carrier.
68. Warner Bros. purported objection to Reliables standard terms was that the terms
disclaimed liability for ordinary negligence in transporting the car to New York, thereby placing
69. On information and belief, Warner Bros. purported objection was a pretext to
enable it to get out of its contract with Octane without paying contract damages. Warner Bros.
had already agreed that it had sole liability for the car from the moment it left the owners
custody and also had agreed to procure its own insurance to cover damage to the car. Thus,
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Warner Bros. liability, if it accrued, would have been covered by the insurance it had agreed to
substance, that since the films production schedule had changed, there was no need for Warner
Bros. to engage in further discussion regarding Reliable at that time and that discussions could be
71. On information and belief, on February 6, 2017, despite advice not to do so,
Warner Bros. counsel called Reliable, and told Reliable that there was no urgent need to speak
about Reliables terms because the production schedule had changed, with filming to take place
72. On information and belief, Reliable informed the owner of the gray 507 of its
conversation with Warner Bros. regarding the delay in the production schedule and change in the
location. At that point, the owner of the gray BMW elected not to proceed. Nor was the owner
required to proceed, since neither the owner nor Octane had agreed to supply the gray 507 in
California in March.
73. Warner Bros. then demanded return of the $100,000 it had paid Octane.
75. Octane and Warner Bros. had a valid and binding agreement for Octane to
procure two automobiles, one white and one gray BMW 507, for use by Warner Bros. in New
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76. Warner Bros. materially breached the agreement by cancelling the white 507 on
or about January 11, 2017, without cause and without fault by Octane.
77. Warner Bros. materially breached the agreement on or about February 3, 2017, by
cancelling delivery of the gray 507 in New York scheduled for early February 2017.
78. Octane has performed all of its obligations under the agreement, except as caused
79. Warner Bros. has paid Octane only $100,000 and has refused to pay the
80. As a result of Warner Bros. breaches of contract, Octane has been damaged in an
82. After breaching its contract with Octane by cancelling the white BMW 507, as set
forth in the First Cause of Action, Warner Bros. agreed that, in connection with Octanes
procurement of the gray BMW 507, Warner Bros. would pay Octane $124,500, which sum
included $50,000 for the rental of the gray 507; $10,000 for transportation of that car; an
administrative/legal fee of $14,500 to account for fees that Warner Bros. had caused Octane to
incur; a kill fee of $10,000 for Warner Bros. cancellation of the white BMW 507; a $5,000
finders fee; a $5,000 wrap cancellation fee; and a $30,000 consulting fee.
83. Warner Bros. materially breached the agreement on or about February 3, 2017, by
cancelling delivery of the gray 507 in New York scheduled for early February 2017.
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84. Octane has performed all of its obligations under the agreement, except as caused
85. Warner Bros. has paid Octane only $100,000 and has refused to pay the
remaining $24,500.
86. As a result of Warner Bros. breach of contract, Octane has been damaged in an
88. A covenant of good faith and fair dealing is implied in the agreements between
Octane and Warner Bros. pursuant to which Warner Bros. covenanted and agreed not to
undertake any act that would frustrate, impair or destroy the purpose or performance of the
agreements.
89. After agreeing with Octane that it would pay $200,000 for Octane to supply two
BMW 507s, one white and one gray, in New York in early February 2017, Warner Bros.
obtained a gray BMW 507 from another source, believed to be BMW, at lower or no cost.
Warner Bros. then decided to film in California at least a month later, and further decided that
the gray 507 it obtained from BMW was sufficient and that it did not need the automobiles for
90. Warner Bros. cancelled the white BMW, but agreed to new terms for the
provision of only the gray BMW that would include some compensation to Octane for Warner
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91. Warner Bros. then decided to cancel the gray BMW that Octane was to supply,
but to do so in a way that it believed could enable it to avoid paying Octane any contract
damages. To that end, Warner Bros. made the pretextual excuse that the terms of the Reliable
contract were objectionable and delayed signing documentation in an effort to cause the owner of
92. By virtue of Warner Bros. pretexts, delays, and unilateral and material changes to
the location and delivery date of the gray BMW, Warner Bros. caused the owner of the gray
93. Warner Bros. conduct constitutes a breach of the duty of good faith and fair
dealing.
94. Warner Bros. has paid Octane only $100,000 and has refused to pay the
remaining $100,000.
95. Octane has been damaged by Warner Bros. breach of the duty of good faith and
97. This Fourth Cause of Action is asserted in the alternative to the First, Second and
98. Octane performed in good faith services for Warner Bros. in connection with
99. Warner Bros. accepted these services, including, but not limited to, Octanes work
in locating the two BMW 507s; negotiating and working with the cars owners; working with
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BMW, the Prop Master and others in connection with wrapping the white BMW 507; and
performing other tasks necessary to deliver both cars in New York in early February 2017.
101. Warner Bros. has only paid Octane $100,000, which is insufficient compensation
102. Octane is entitled to receive from Warner Bros. reasonable compensation for its
3. Awarding Octane its costs and attorneys fees in this action; and
4. Awarding Octane such other and further relief as the Court deems just and proper.
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