Case 1:17-cv-04848 Document 1 Filed 06/27/17 Page 1 of 7

James D. Weinberger (jweinberger@fzlz.com)

Leo Kittay (lkittay@fzlz.com)
FROSS ZELNICK LEHRMAN & ZISSU, P.C.
4 Times Square, 17th Floor
New York, NY 10036
(212) 813-5900

Attorneys for Plaintiff Warner Bros. Pictures,

a division of WB Studio Enterprises Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

WARNER BROS. PICTURES, a division of COMPLAINT

WB STUDIO ENTERPRISES INC.,

Plaintiff,

-against-

OCTANE FILM CARS, LLC,

Defendant.

Plaintiff Warner Bros. Pictures, a division of WB Studio Enterprises Inc., (Warner

Bros. or Plaintiff), by and through its attorneys, Fross Zelnick Lehrman & Zissu, P.C., as and

for its Complaint against Octane Film Cars, LLC (Octane or Defendant), hereby alleges as

follows:

THE PARTIES

1. Plaintiff Warner Bros. is a Delaware corporation with its principal place of

business at 4000 Warner Blvd. Burbank, CA 91522.

2. Defendant Octane is a New York limited liability company with its principal

place of business at 38 High Avenue, 4th Floor, Nyack, NY 10960.

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JURISDICTION AND VENUE

3. Pursuant to 28 U.S.C. 1332, this Court has subject matter jurisdiction as the

plaintiff and defendant are citizens of different states and the amount in controversy exceeds the

sum of $75,000.

4. Venue is appropriate in this district pursuant to 28 U.S.C. 1391(b)(1) because

defendant resides in this judicial district.

FACTUAL BACKGROUND

5. Plaintiff Warner Bros. brings this action for breach of contract, breach of

covenant of good faith and fair dealing, and unjust enrichment against Octane.

6. Warner Bros., based in Burbank, California, is among the worlds foremost

producers of entertainment content, including motion pictures and television programming and

video games.

7. Octane, based in Nyack, New York, holds itself out as New Yorks premier

source of automobiles for use in motion pictures.

8. In or about December 2016, Warner Bros. and Octane entered into an agreement

whereby Octane agreed to act on behalf of Warner Bros. in connection with the rental of a

vintage BMW 507 automobile for Warner Bros. use in a feature motion picture. Although the

parties contemplated entering into a writing to memorialize their agreement, and exchanged

written drafts incorporating many of the agreements material terms, no written agreement was

ultimately signed.

9. Under the parties agreement, Octane was to procure, arrange for the

transportation of, and deliver to Warner Bros. a BMW 507 for a minimum two-day shoot. In

exchange Warner Bros. would pay $124,500 to Octane, consisting of a two-day rental fee of

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$50,000, a transportation charge of $10,000, an administration/legal fee of $14,500, a

cancellation/kill fee relating to a second BMW 507 that Warner Bros. had decided not to rent of

$15,000, a finders fee of $5,000 and a consulting fee of $30,000.

10. In December 2016 and January 2017, Warner Bros. performed its obligations

under the agreement by paying to Octane a deposit in the form of two installment payments in

the total amount of $100,000 in contemplation of a shoot to take place between February 10 and

February 13, 2017.

11. Octane, however, failed to perform its obligations under the agreement. The

owner of the BMW 507 (the BMW Owner) that Octane had arranged for use made a number

of arbitrary and unreasonable demands. For instance, on the afternoon of Friday, February 3,

2017, after exigencies of production required that the shoot be re-scheduled to early March 2017,

and moved from New York to Los Angeles, the BMW Owner insisted that even though the draft

agreements no longer accurately reflected the shooting schedule or location, Warner Bros.

needed to sign all documents by the close of business that same day or else, as Octane conveyed

to Warner Bros., the BMW Owner would pull the p[l]ug. Notwithstanding the fact that the

agreement terms still needed to be revised to account for the changed production schedule,

Octane informed Warner Bros. that the BMW Owner wants the document signed today or there

is no car. He will walk. Notably, and contrary to its obligations as Warner Bros. consultant for

purposes of ensuring that the transaction took place, Octane made no attempt to salvage the

arrangement or assuage the BMW Owners unreasonable concerns and expectations. To the

contrary, Octane, acting solely in its own interests, pressured Warner Bros. to execute what it

knew was an unacceptable and factually inaccurate agreement.

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12. The BMW Owner, through Octane, also insisted that Warner Bros. use a carrier

that refused to bear the risk for its own negligence in transporting the car to the shoot a

substantial issue for a vehicle with a stated value of $3,000,000. When Warner Bros. attempted

to negotiate the negligence issue with the carrier in good faith on February 3, 2017, the BMW

Owner became incensed, advised Octane that he was refusing to allow his car to be used, and

pulled the plug.

13. Following Octanes breach of the agreement, Warner Bros. asked for the return of

the $100,000 deposit it had paid, but Octane refused to return any part of the money, asserting

that because it had worked tirelessly it should be entitled to keep the entire amount of the

deposit even though it had breached the agreement and failed to provide the BMW 507 to

Warner Bros. as promised.

FIRST CLAIM FOR RELIEF

(Breach of Contract)

14. Warner Bros. repeats and realleges paragraphs 1 through 13 above with the same

force and effect as if fully set forth herein.

15. Warner Bros. and Octane entered into a valid and binding agreement.

16. Warner Bros. has performed all of its obligations under the agreement, except as

excused or prevented by Octane.

17. Octane materially breached the agreement by, among other things, failing to

procure a BMW 507 for use by Warner Bros. in connection with the feature motion picture (a

failure that was all but preordained through Octanes selection of an intractable and unreasonable

vehicle owner), and refusing to return to Warner Bros. amounts that were paid to Octane in

contemplation of its performance under the agreement.

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18. As a result of Octanes material breaches of the agreement, Warner Bros. has

been damaged, which damages are the natural and proximate consequence of Octanes breach of

the agreement, in an amount to be determined at trial, but no less than $100,000.

SECOND CLAIM FOR RELIEF

(Breach of the Covenant of Good Faith and Fair Dealing)

19. Warner Bros repeats and realleges paragraphs 1 through 18 above with the same

force and effect as if fully set forth herein.

20. Implied in the agreement between Warner Bros. and Octane was a covenant of

good faith and fair dealing pursuant to which Octane covenanted and agreed to not undertake any

act that would frustrate, impair or destroy the purpose or performance of the agreement.

21. Octanes actions as set forth above breached this implied covenant of good faith

and fair dealing. Among other things, Octane, even though it had agreed to act as Warners

consultant, actively sought to frustrate the purpose of the agreement by actively taking the side of

the BMW Owner against Warner Bros. on, among other things, t issue of liability for the vehicle

during its transportation to the shoot and other unreasonable demands made by the BMW Owner.

22. Octanes breach of the implied covenant of good faith and fair dealing caused

substantial harm and damage to Warner Bros. in an amount to be determined at trial, but no less

than $100,000.

THIRD CLAIM FOR RELIEF

(Unjust Enrichment)

23. Warner Bros. repeats and realleges paragraphs 1 through 22 above with the same

force and effect as if fully set forth herein.

24. In consideration for its anticipated performance under the agreement, Octane

received payment from Warner Bros. in the amount of $100,000.

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25. As alleged herein, Octane materially breached the agreement, failed to perform its

obligations, but nonetheless has refused to return the $100,000, or any portion of it, paid by

Warner Bros. under the agreement.

26. It would be unjust and inequitable to allow Octane to be enriched in this manner

at the expense of Warner Bros.

27. By reason of the foregoing, Octane has been unjustly enriched at the expense of

Warner Bros., and Warner Bros. has suffered damages in an amount to be established at trial but

in no event less than $100,000.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Warner Bros. prays that this court:

a. Award to Warner Bros. compensatory damages in an amount to be determined at

trial, but in no event less than $100,000;

b. Award to Warner Bros. its costs incurred in connection with this action; and

c. Award to Warner Bros. such other and further relief as the Court may deem just

and proper.

JURY TRIAL DEMAND

Plaintiff demands a jury trial in this action.

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Dated: June 27, 2017 Respectfully submitted,

New York, NY
FROSS ZELNICK LEHRMAN & ZISSU, P.C.

By: /s/ James D.Weinberger

James D. Weinberger (jweinberger@fzlz.com)
Leo Kittay (lkittay@fzlz.com)
4 Times Square, 17th Floor
New York, New York 10036
(212) 813-5900

Attorneys for Plaintiff Warner Bros. Pictures,

a division of WB Studio Enterprises Inc.

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