Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 1 of 22

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:13-cv-23705-ALTONAGA HARD CANDY, LLC, A Florida limited liability company, Plaintiff, v. HARD CANDY FITNESS, LLC, a Delaware company, NEW EVOLUTION VENTURES, LLC, a Delaware company, Defendants. HARD CANDY FITNESS, LLC, a Delaware company, Counterclaimant, v. HARD CANDY FITNESS, LLC, a Delaware company, NEW EVOLUTION VENTURES, LLC, a Delaware company, MGHCANDY, LLC, a Delaware company, GUY OSEARY, an individual, and MADONNA LOUISE CICCONE, an individual, Counterdefendants.

SPECIALLY APPEARING DEFENDANTS MGHCANDY, LLC'S, GUY OSEARY'S, AND MADONNA LOUISE CICCONE'S NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR IN THE ALTERNATIVE TO TRANSFER TO NORTHERN (OR CENTRAL) DISTRICT OF CALIFORNIA

1 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 2 of 22

SPECIALLY APPEARING DEFENDANTS MGHCANDY, LLC'S, GUY OSEARY'S, AND MADONNA LOUISE CICCONE'S NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR IN THE ALTERNATIVE TO TRANSFER TO NORTHERN (OR CENTRAL) DISTRICT OF CALIFORNIA TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendants MGHCANDY, LLC, GUY OSEARY, and MADONNA LOUISE CICCONE, collectively hereinafter the “New Defendants,” will and hereby do move individually and collectively for an order dismissing each of them from the abovecaptioned matter pursuant to Federal Rule of Civil Procedure 12(b)(6)(2). This motion (the “Motion”) will be decided by the Honorable Cecilia M. Altonaga, in Room 12-2, located at 400 North Miami Avenue, Miami, Florida, 33128. This Motion seeks dismissal of each of the New Defendants on the basis that FLA. STAT. § 48.193 does not authorize this Court to exercise personal jurisdiction over them, and this Court's exercise of personal jurisdiction would violate the New Defendants’ due process rights under the Fourteenth Amendment. This Court may not exercise general jurisdiction over any of the New Defendants because none of them has “continuous and systematic general business contact[s]” with Florida such that they can be determined to have “engaged in substantial and not isolated activity within this state.” See e.g., FLA. STAT. § 48.193(2). Moreover, this Court may not exercise special jurisdiction over the New Defendants because none of them have personally, or through an agent or personal representative, committed any act set forth in § 48.193(1)(a)(1)-(9) which gives rise to a cause of action asserted in this litigation. In the alternative, this Motion seeks for the convenience of parties and witnesses and in the interest of justice, a transfer of this action pursuant to 28 U.S. § 1404(a), and either 28 U.S. § 1391(b)(1) or (b)(2), to the Northern (or Central) District of California, the California Districts where most of the defendants reside. This Motion is based upon this Notice of Motion and Motion, the three declarations filed concurrently with this Motion, the below Memorandum of Points and Authorities, all pleadings and papers filed in this action, and any evidence and argument presented at oral argument should the Court hold a hearing on this Motion. New Defendants specially appear for this Motion only. 2 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 3 of 22

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Hard Candy, LLC (“Hard Candy”) initiated this suit against defendants Hard Candy Fitness, LLC (“HCF”) and New Evolution Ventures, LLC (“NEV”) to try prevent HCF from using the mark HARD CANDY FITNESS for luxury fitness centers, apparel, or DVDs. This Court ruled on April 24, 2014 it could exercise personal jurisdiction over HCF and NEV, and issued an opinion [ECF No. 84] as to the basis of that decision. In that opinion, this Court explained that it premised its exercise of personal jurisdiction over California resident HCF upon its conclusions that HCF had purposely directed its marketing effort and infringing goods into Florida, and that HCF had multiple contacts with Florida, including: (1) engaging in broad marketing efforts in Florida, (2) hiring a Miami-based marketing firm to act as its marketing director, (3) hiring a resident of Miami as its Chief Marketing Officer, and (4) planning and hosting a major promotional event in Miami designed to promote allegedly infringing DVDs titled Addicted to Sweat. (ECF No. 84, p. 2). This Court also explained that its exercise of personal jurisdiction over California resident NEV was based upon its conclusion that NEV exercises “day-to-day control of the internal affairs or basic operations” over HCF. (Id. at pp. 2-5). Approximately six hours later, Hard Candy filed a First Amended Complaint (the “FAC”) naming MGHCANDY, LLC (“MGHCANDY”), GUY OSEARY (“OSEARY”), and MADONNA LOUISE CICCONE (“CICCONE”), collectively the “New Defendants,” as defendants in this action. Hard Candy relies upon unsupported conclusory allegations that the New Defendants are selling and marketing instructional fitness DVDs titled Addicted to Sweat to justify the exercise of personal jurisdiction. However, Florida’s long-arm statute does not empower this Court to exercise jurisdiction over any of the New Defendants because they have no relevant contacts with Florida. OSEARY and CICCONE have only one remote connection to the events complained of in the FAC: they are the sole members of MGHCANDY, LLC. MGHCANDY in turn has only one connection to the events complained of in the FAC: it is the non-managing member (and licensor) 3 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 4 of 22

of the two-member HCF, LLC. The New Defendants must be dismissed from this action because this Court may not exercise general jurisdiction over any of them, as none of them has “continuous and systematic general business contact[s]” with Florida such that they can be determined to have “engaged in substantial and not isolated activity within this state.” FLA. STAT. § 48.193(2). This Court may not exercise special jurisdiction over any of them, as none of them have personally, or through an agent or personal representative, committed any act set forth in § 48.193(1)(a)(1)-(9) which gives rise to a cause of action asserted in this litigation. FLA. STAT. § 48.193(1). Thus, this Court's exercise of jurisdiction over the New Defendants would offend traditional notions of fair play and substantial justice, and violate their Fourteenth Amendment due process rights. In the alternative, this Motion seeks for the convenience of parties and witnesses and in the interest of justice, a transfer of this action pursuant to 28 U.S.C. § 1404(a), and 28 U.S.C § 1391(b)(1) or (b)(2), to the Northern (or Central) District of California. California is the locus of operative facts underlying the FAC, the location where most of the relevant records and witnesses for the New Defendants are located, and the state in which four of five of the named defendants reside. Thus, the New Defendants ask this Court to dismiss them from this action, or else transfer it to California. II. STATEMENT OF FACTS OSEARY is a talent manager and businessman residing in Los Angeles, California, and he is CICCONE's personal manager and sometimes business partner. OSEARY and CICCONE are the owners of MGHCANDY. OSEARY is the MGHCANDY senior management representative, and he manages the MGHCANDY day-to-day operations and represents MGHCANDY in its business dealings from Los Angeles, California. Each of OSEARY's relevant communications with HCF has been conducted in his role as an MGHCANDY representative. Declaration of Guy Oseary ISO New Defendants' MTD [“Oseary Decl.”], ¶¶ 1 & 5. MGHCANDY is a Delaware limited liability company residing in Los Angeles, California. MGHCANDY was formed (effective November 24, 2010) for the purposes of (1) permitting OSEARY and CICCONE to invest in HCF, (2) fulfilling obligations and receiving benefits under 4 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 5 of 22

the HCF Amended and Restated Operating Agreement (the “HCF Operating Agreement”), facilitating the license and/or transfer of intellectual property rights to HCF necessary to its operation, and engaging in lawful activities necessary or advisable in connection therewith or incidental thereto. HCF was formed (effective December 23, 2008) as a Delaware limited liability company. Oseary Decl., ¶ 2; Declaration of Richard Feldstein ISO New Defendants' MTD [“Feldstein Decl.”], ¶ 3. At no time during the last 5 years have any of the New Defendants: (1) applied for or been granted a license to conduct business in Florida; (2) registered with the Florida Secretary of State to do business in Florida; (3) purchased, owned or leased any real property in Florida; (4) filed tax returns with the state of Florida; (5) borrowed money in Florida or held a mortgage or lien on any real property in Florida; (6) insured any person, and/or property for any activity in Florida; (7) opened or maintained any offices, mailing addresses, telephone numbers, bank accounts, or officers in Florida; (8) employed any company, contractor, consultant, or person located in Florida to provide them with business services relating to HCF; (9) entered into any HCF-related contract with any person or entity residing in Florida; (10) entered into any contract requiring performance in Florida of any HCF-related act; (11) distributed HCF-related promotional materials or engaged in any HCF-related solicitation activities either (a) in Florida, or (b) outside Florida that targeted Florida residents; (12) owned or operated any internet website or social media page that promoted or sold HCF-related goods or services; (13) manufactured for sale (or sold) or rendered, offered to sell or render, or marketed any HCF-related goods or services in the United States, whether over the internet or in brick and mortar stores; (14) had any dealings with Watch It Now TV, Inc. (“WINTV”), Key Priority Management (“KPM”) or Gaiam Americas, Inc. (“GAIAM”) in connection with those entities' efforts to manufacture, market, sell, or otherwise distribute Addicted to Sweat DVDs; or (15) had any connection to the hiring of, or any purposeful or significant contact with, any HCF employee or contractor in Florida regarding efforts to market or distribute Addicted to Sweat DVDs. Furthermore, there has never been an HCF club in Florida. Oseary Decl., ¶ 3; 5 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 6 of 22

Feldstein Decl., ¶ 4; Declaration of Sara Zambreno ISO New Defendants' MT [“Zambreno Decl.”], ¶ 2. NEV and HCF are both Delaware limited liability companies residing in Lafayette, California. See Declaration of Brent Leffel ISO NEV's and HCF's Motion to Dismiss (ECF No. 131) [“Leffel Decl.”], ¶ 2; Declaration of Eric Reiter ISO NEV's and HCF's Motion to Dismiss [ECF No. 13-2], ¶ 2. Declaration of Brent Leffel ISO NEV's and HCF's Motion to Dismiss [ECF No. 131], ¶ 2. NEV exercises operational control over HCF through its subsidiary that owns 50% of, and is the managing member of, HCF. The HCF Operating Agreement provides that HCF “and its business [is] managed and operated exclusively by the [HCF] Managing Member,” subject to certain approval rights. MGHCANDY has high-level approval rights in certain matters relating to HCF's use of the HARD CANDY FITNESS mark. NEV and MGHCANDY must both approve of the following decisions before NEV may implement them: (1) development of any product, (2) the terms of any agreement for the license or distribution of any approved product(s), and (3) the identity of any licensee, operator, or owner of an HCF Club, and the material terms of necessary agreements. In addition, NEV must obtain MGHCANDY's approval as to the following decisions before NEV can implement those decisions: (4) expansion of the scope of HCF company business beyond operation of HCF clubs, (5) sale of products outside of the HCF clubs, (6) the general artistic “look and feel” of any material renovation of any HCF club, (7) all material creative decisions as to (a) HCF itself, (b) the HCF annual marketing plan, and (c) HCF products, and (8) the identity of any licensee or distributor of any approved products. Even so, NEV is not obliged to move forward with any MGHCANDY-approved course of action. Instead, once MGHCANDY approval is obtained for a course of action, NEV makes the final decision as to whether to proceed. In the event there is a conflict as to any creative decision, MGHCANDY's decision governs. Oseary Decl., ¶ 5; Feldstein Decl., ¶ 6; Leffel Decl., ¶ 5; Supplemental Declaration of Brent Leffel Filed (Under Seal) ISO NEV's and HCF's 2nd Motion to Dismiss (ECF No. 56), ¶¶ 2-4 & 6-7; ECF No. 84, p.2. 6 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 7 of 22

NEV provides periodic updates to MGHCANDY regarding HCF's strategic direction and performance, including new clubs HCF expects to open and general plans for goods and services in development. Those updates are usually emailed to MGHCANDY representatives as high-level conceptual updates as to what HCF is considering and planning, rather than detailed plans that require MGHCANDY approval. Most substantive communications between MGHCANDY and HCF consist of emails and phone calls between Brent Leffel and OSEARY, and the emails have already been produced in this litigation. Approvals sought from MGHCANDY by HCF are requested by email, and such emails have also been produced in this litigation. Craig Hoffman (former HCF CEO) never met in person with any MGHCANDY representative, and Brent Leffel (HCF President) has only had two substantive discussions with MGHCANDY member CICCONE since November 2010 (one 45 minute teleconference and one 90-minute in-person meeting in 2013). HCF has sent only one marketing plan to MGHCANDY for approval. HCF obtained MGHCANDY approval to create and then distribute the Addicted to Sweat DVD outside of HCF clubs through WINTV, KPM, and GAIAM, and it also obtained MGHCANDY approval for the artwork on the cover of the Addicted to Sweat DVD. HCF obtained no other approvals relating to the Addicted to Sweat DVD from MGHCANDY. Oseary Decl., ¶ 6; Zambreno Decl., ¶ 5. One of CICCONE's other business entities has representation and performance agreements with concert promoter Live Nation that govern the sale of studio album-related merchandise and CICCONE's concert tours and performances. As part of the contractual arrangement between Live Nation and a CICCONE business entity, Live Nation scheduled, organized, produced and financed all such concert tours, and had the right to (and did) manufacture and sell associated merchandise. From 2012-2013, Live Nation produced a world-wide concert tour. During the scheduled concerts on that tour, CICCONE performed as required by Live Nation (including during two concerts in Miami, Florida in late November 2012), without promoting HCF or HCF goods or services. CICCONE did not sell concert tickets or merchandise relating to the Hard Candy album. Instead, Live Nation compensated a CICCONE business entity for her performance and involvement in the 7 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 8 of 22

tour. CICCONE did not attend any special events that promoted Addicted to Sweat DVDs while she was in Florida for the November 2012 concerts. Oseary Decl., ¶ 4; Feldstein Decl., ¶ 5; Zambreno Decl., ¶ 3. A digital team provided by Live Nation helps Live Nation (and/or its affiliates) manage content appearing on the www.madonna.com website and all CICCONE-authorized social media pages. OSEARY arranged for HCF to work with members of that digital team (at HCF's expense) so HCF could arrange to have MGHCANDY-approved content posted on the internet. MGHCANDY has only approved the creative aspects of content HCF posted on the internet with the assistance of the digital team, meaning the format of the post (i.e. contest or other announcement or comment), and the images, graphics, colors, word choices used in the post to convey HCF's chosen message.. Similarly, HCF has obtained MGHCANDY's approval for creative choices made by HCF in connection with HCF-related goods, services, and clubs (e.g., selection of images, graphics, colors, themes, venues, and word choice). However, HCF has never asked MGHCANDY to approve: (1) any purposeful interjection of HCF goods or services into the state of Florida; (2) any purposeful marketing of HCF products or services to Floridians; (3) the publication in Florida of interviews about the Addicted to Sweat DVD; (4) any decision to sell Addicted to Sweat DVDs in Florida or to Floridians; (5) any decision to hire a Florida-based marketing firm to act as HCF's marketing director; or (6) any decision to hire a Florida resident as HCF's Chief Marketing Officer. Although MGHCANDY has approval rights over the aesthetic appearance of the HARD CANDY FITNESS mark and logos used by HCF, MGHCANDY does not have any authority to prevent HCF from making use of the substance of the HARD CANDY FITNESS mark or logos on, or in connection with, the manufacture, sale, rendering, offers to sell or render, or marketing of any approved HCF-related goods or services. Oseary Decl., ¶ 7; Zambreno Decl., ¶ 4. On May 15, 2014, MGHCANDY conveyed to HCF its rights in the unregistered mark HARD CANDY for use on clothing, bags (e.g., gym bags, tote bags and the like), jewelry, athletic gear, and fashion accessories in U.S. commerce. None of the New Defendants are involved in 8 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 9 of 22

HCF's trademark management decisions, and they have not participated in any of HCF's trademark prosecution efforts. HCF has not sought approval from any of the New Defendants for its positions or conduct in this litigation. Oseary Decl., ¶ 8. Hard Candy has conducted extensive discovery in this case, and already obtained approximately 100,000 pages of documents from HCF and 6,100 pages of documents from MGHCANDY. If this litigation moves forward against the New Defendants, their defenses will be conducted from California, and their depositions will be taken and defended by counsel that is likely to be different from HCF's and NEV's counsel. All of the New Defendants' litigation counsel is located in California. In addition, if this litigation moves forward against the New Defendants, the New Defendants will likely need to take the depositions of several witnesses located in or near California, including at least the following (on the stated topics): 1. Guy Oseary, who resides in California, will likely be deposed regarding his communications with HCF personnel, MGHCANDY's exercise of its various approval rights set forth in the HCF Operating Agreement; OSEARY's management of MGHCANDY, the roles and responsibilities carried out by each member of MGHCANDY, and OSEARY's efforts to facilitate a settlement discussion between a representative of Hard Candy and HCF; 2. Richard Feldstein, partner of business management firm Nigro Karlin Segal Feldstein & Bolno, which resides in California, will likely be deposed regarding MGHCANDY's financial and other records; 3. One or more members of the digital team who assists HCF, who reside in California, will likely be deposed regarding their provision of services to HCF in connection with HCF social media campaigns and websites; 4. Brent Leffel, who resides in California, will likely be deposed regarding the contours and limits of the business relationship between HCF and MGHCANDY, the meaning and effect of the HCF Operating Agreement, discussions that have taken place between Mr. Leffel and MGHCANDY regarding HCF and pertaining to MGHCANDY's exercise of its approval rights as set forth in the HCF Operating Agreement; 5. Colleen Sparda, who resides in California, will likely be deposed regarding the HCF marketing efforts relating to HCF goods and services and MGHCANDY's involvement therewith, if any; 6. KPM, who resides in California, will likely be deposed regarding marketing efforts directed toward selling, and sales of, Addicted to Sweat DVDs in the United States; 9 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 10 of 22

7. WINTV, who resides in California, will likely be deposed regarding marketing efforts directed toward selling, and sales of, Addicted to Sweat DVDs over the internet and internationally; 8. Amazon.com, who resides in Seattle, Washington, will likely be deposed regarding sales of Addicted to Sweat DVDs through www.amazon.com; and 9. GAIAM Americas, Inc., who resides in Colorado, will likely be deposed regarding marketing efforts directed toward selling, and sales of, Addicted to Sweat DVDs in the United States. Oseary Decl., ¶ 9. Finally, Hard Candy is currently seeking to take the depositions of MGHCANDY and NEV's Mark Mastrov, Jim Rowley, Linell Killus, and Colleen Sparda. Hard Candy's counsel has repeatedly argued it is entitled to take those depositions in Florida, rather than in California where the witnesses reside. The New Defendants have no guarantee that they will be able to recover their litigation costs from HCF. Oseary Decl., ¶ 10. III. STATEMENT OF LAW “ [P]laintiff bears the burden of proving personal jurisdiction” over the defendants. Carmel & Co. v. Silverfish, LLC, et al., No. 12-CV-21328, 2013 U.S. Dist. LEXIS 39824, at *5 (S.D. Fla. Mar. 21, 2013). The Court must assess actions of separate defendants individually. Verizon Trademark Servs., LLC, et al. v. The Producers, Inc. et al., 810 F. Supp. 2d 1321, 1332 (M.D. Fla. 2011). Once the exercise of personal jurisdiction over a defendant is challenged with the support of affidavits filed in support thereof, “the burden shifts to the plaintiff to prove ‘by affidavit the basis upon which jurisdiction may be obtained.’ ” Bioheart, Inc. v. Peschong, et al., No. 12-CV-60304, 2013 U.S. Dist. LEXIS 57259, at *4 (S.D. Fla. Apr. 22, 2013). A “plaintiff must substantiate the jurisdictional allegations in its complaint by affidavits or other competent proof, and may not merely rely upon the factual allegations set forth in the complaint.” Carmel & Co., 2013 U.S. Dist. LEXIS 39824, at *4. Florida courts conduct a two-step inquiry to determine whether they can exercise personal jurisdiction over a nonresident defendant. First, they determine whether Florida’s long-arm statute provides them with jurisdiction. Bioheart, Inc., 2013 U.S. Dist. LEXIS 57259, at *3-*4; Carmel & 10 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 11 of 22

Co., 2013 U.S. Dist. LEXIS 39824, at *4. “Florida’s long-arm statute authorizes courts to exercise specific jurisdiction under [FLA. STAT. § 48.193(1)], and general jurisdiction under [FLA. STAT. § 48.193(2)].” Carmel & Co., 2013 U.S. Dist. LEXIS 39824, at *5-*6. In relevant part, Florida’s long-arm statute provides: (1)(a) A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself . . . to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts: 1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state. 2. Committing a tortious act within this state. . . . 6. Causing injury to persons or property within this state arising out of an act or omission by the defendant outside of this state, if, at or about the time of the injury, either: a. The defendant was engaged in solicitation or service activities within this state; or b. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state I the ordinary course of commerce, trade, or use. (2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity. FLA. STAT. § 48.193(1) and (2). Federal courts must construe Florida’s long-arm statute strictly, and in the same manner as would the Florida Supreme Court. Id., at *5. Florida courts may exercise general jurisdiction over a nonresident defendant if the requirements of FLA. STAT. § 48.193(2) are met. FLA. STAT. § 48.193(2) has been interpreted to require that “continuous and systematic general business contact” with Florida must be established before the Florida courts may exercise general jurisdiction over a defendant. Id. at *7. The “continuous and systematic contacts sufficient to confer general jurisdiction present a ‘much higher 11 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 12 of 22

threshold’ than those contacts necessary to support specific jurisdiction.” Verizon Trademark Servis., LLC, 810 F. Supp. 2d at 1328. Relevant factors include: “the presence and operation of an office in Florida, the possession and maintenance of a license to do business in Florida, the number of Florida clients served, and the percentage of overall revenue gleaned from Florida clients,” the amount of communications transmitted into Florida, and the amount of marketing and advertising done in Florida. Carmel & Co. v, 2013 U.S. Dist. LEXIS 39824, at *8-9. Even in the absence of “continuous and systematic general business contact,” Florida courts may exercise specific jurisdiction over a defendant if a cause of action is alleged in the complaint that “arises from or is directly related to” the defendant’s contacts with the state of Florida (i.e., there is “some ‘direct affiliation, nexus, or substantial connection between [such] cause of action and the [defendant’s] activity within the state”). Id., at *6-7. “In order to establish a defendant is carrying on business for the purposes of the long-arm statue, the activities of the defendant must be considered collectively and show a general course of business activity in the state for pecuniary benefit.” Id., at *7-8. “Only where the long-arm statute provides jurisdiction do [courts] proceed to the second step and determine whether ‘the defendant has minimum contacts with the forum state’ and, if so, whether the district court’s exercise of jurisdiction over that defendant would ‘offend traditional notions of fair play and substantial justice’ ” under the Due Process Clause of the Fourteenth Amendment. PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 807 (11th Cir. 2010); see also Bioheart, Inc., 2013 U.S. Dist. LEXIS 57259, at *3-*4; Carmel & Co., 2013 U.S. Dist. LEXIS 39824, at *4. The test for determining minimum contacts considers the defendant's purposeful contacts with the forum and whether the defendant should reasonably have anticipated being hauled into court there. See Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985); Carmel & Co. 2013 U.S. Dist. LEXIS 39824, at *17-*18 (explaining Due Process requires that before jurisdiction may be exercised, a nonresident defendant must engage in some act through which he “purposefully avails” himself of “ ‘the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,’ ” and that he must “ ‘have ‘fair warning’ that 12 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 13 of 22

a particular activity may subject him to the jurisdiction of a foreign sovereign,’ ” and the “ ‘fair warning requirement is satisfied if the defendant has ‘purposefully directed’ his activities at the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities’ ”). Said another way, this Court may not exercise personal jurisdiction over any nonresident defendant unless such defendant has had sufficient and “purposeful 'minimum contacts' with Florida and those contacts: (1) are related to . . . or have given rise to [a cause of action set forth in the Complaint at issue]; (2) involve some purposeful availment of the privileges of conducting activities within the [state of Florida], thereby invoking the benefits and protections of its laws; and (3) are such that [the Defendants] should reasonably anticipate being haled into court in Florida.” Bioheart, Inc., 2013 U.S. Dist. LEXIS 57259, at *8-*9. A five factor test is used to determine whether the exercise of personal jurisdiction comports with fair play and substantial justice, including: (1) burden on defendant; (2) the forum’s interest in adjudicating the dispute; (3) the Plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining an efficient resolution; and (5) the shared interest of the states in furthering fundamental substantive social policies. Carmel & Co., 2013 U.S. Dist. LEXIS 39824, at *22. IV. ARGUMENT A. FLA. STAT. § 48.193(1)(a) Does Not Empower This Court To Exercise Specific Jurisdiction Over Any Of The New Defendants. Plaintiff alleges only one (non-Internet) connection between the defendants named in the FAC and the state of Florida: a fitness DVD entitled Addicted to Sweat that is allegedly being sold in Florida (and on the Internet). More specifically, Plaintiff alleges that: (1) the named defendants are “selling their Addicted to Sweat DVD across the United States of America via the Internet and in brick and mortar stores;” (2) that these “DVDs are available . . . for purchase at Target stores in this district, including but not limited to: Dadeland, Hialeah, Hollywood and Miramar;” (3) that the “DVDs are also available on various websites on the Internet, including but not limited to Amazon.com and www.addictedtosweatdvd.com;” and (4) “Defendants have used the mark Hard 13 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 14 of 22

Candy, to promote [the] fitness DVDs, including by placing the mark on clothing and promotional material, which infringes on the Hard Candy Marks previously registered and brought to the marketplace by Hard Candy, LLC.” (FAC, ¶¶ 51-53, 65 & 87.) Hard Candy also makes the broad and conclusory allegations (without alleging any supportive facts) that the New Defendants: (1) “conduct[]significant business in this district by selling Hard Candy Fitness product and/or services in this district via the Internet and/or traditional brick and mortar locations,” and (2) “direct, control, ratify, and participate in the infringing activity,” and that (3) MGHCANDY “actively participates in all of HCF’s decisions related to the use of the mark ‘Hard Candy.’ ” (FAC, ¶¶ 4-6, & 63). To the contrary, the declarations submitted in conjunction with this motion (the "Declarations") establish that none of the New Defendants: (1) conduct any HCF business in the state of Florida; (2) sell any HCF goods or services in the U.S.; (3) run HCF’s day-to-day operations; or (4) “direct, control, ratify, and participate in [any] infringing activity. ” Instead, the Declarations establish that OSEARY’s and CICCONE’s only connection to the allegedly infringing conduct lies in their investment in, and/or involvement with, MGHCANDY, and MGHCANDY’s only connection to the allegedly infringing conduct lies in the fact that it is a member (and licensor) of the HCF LLC. As established by the Declarations, there has never been an HCF club in Florida, and during the last five years none of the New Defendants have engaged in any HCF-related conduct in Florida. There is no factual basis upon which this Court may exercise specific personal jurisdiction over the New Defendants under FLA. STAT. §§ 48.193(1). The fact that MGHCANDY exercises certain approval rights (namely, that MGHCANDY has the right to veto (but not compel) certain of HCF’s conduct, and has the final say as to creative decisions with respect to HCF goods, services, and clubs) does not change this analysis. NEV exerts operational control over HCF, not MGHCANDY. HCF is not compelled to act in a manner dictated by MGHCANDY, except with respect to purely creative decisions (such as imagery, colors, themes, etc). As to all other issues, NEV makes the final operational decisions for HCF. More importantly, even a cursory review of the FAC makes clear that it is the substance of HCF’s name 14 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 15 of 22

and logos which Hard Candy objects to being used in connection with HCF's goods and services−not the aesthetic characteristics (e.g., colors, images, designs, etc.) of HCF's goods, services, name or logos. However, MGHCANDY has no authority to stop HCF from making use of the Hard Candy Fitness name or logos in connection with approved HCF goods or services. Thus, to the extent the sale of Addicted to Sweat DVDs (or any other HCF conduct) subjects HCF to personal jurisdiction in Florida, such activities cannot justly be attributed to the New Defendants. In light of this failing, Florida courts are not authorized to exercise specific personal jurisdiction over either of the New Defendants. See FLA. STAT. §§ 48.193(1)(a). B. FLA. STAT. § 48.193(2) Does Not Empower This Court To Exercise General Jurisdiction Over Any Of The New Defendants. A Florida court cannot exercise general personal jurisdiction over a defendant for which the court cannot exercise specific personal jurisdiction. Verizon Trademark Servs.., 810 F. Supp. 2d at 1328-1329 (explaining that the “continuous and systematic contacts sufficient to confer general jurisdiction present a ‘much higher threshold’ than those contacts necessary to support specific jurisdiction,” and finding no general personal jurisdiction over a defendant who have no employees, property, or computer servers in Florida, and have never sold goods, engaged in or solicited business, or paid taxes in Florida). For all the same reasons set forth above, there is no factual basis upon which this Court can conclude that any of the New Defendants are “engaged in substantial and not isolated activity with [the] state” that empowers this Court to exercise general jurisdiction over any of them under FLA. STAT. § 48.193(2). FLA. STAT. § 48.193(2). The FAC also makes a vague allegation in ¶ 57 that “Defendants have begun to promote Hard Candy Fitness apparel through various means, including the Internet,” and the FAC also references the HCF Website (www.hardcandyfitness.com) a few times. (See, e.g., FAC ¶¶ 30, 35, 57, & 119.) However, these vague allegations are insufficient to establish that New Defendants have engaged in purposeful, continuous and systematic general business contact with Florida for five reasons: (1) New Defendants have not promoted apparel in Florida; (2) the HCF Website does 15 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 16 of 22

not sell (or offer to sell) any apparel or anything else; (3) the HCF Website is aimed at a worldwide audience, and does not specifically target Florida, (4) the New Defendants do not operate the HCF Website; and (5) the New Defendants are not selling (or offering to sell) HCF apparel on any other Internet Website. Bioheart, Inc., 2013 U.S. Dist. LEXIS 57259, at *6 & *11-*15 (relying upon evidence establishing that a website on which a tortious act was alleged to have occurred had been accessed in the forum to establish personal jurisdiction under former FLA. STAT. § 48.193(1)(b) [now FLA. STAT. § 48.193(1)(a)(2], but going on to hold that non-commercial activity on a website that is “visible throughout the world, and not directed at or used to contact a particular forum” does not satisfy the “minimum contacts” requirement in the absence of evidence that such activity was purposefully directed at a Florida audience). Because there is no basis for the assertion of personal jurisdiction over the New Defendants under the Florida long-arm statute, this action should be summarily dismissed as to each of the New Defendants. Carmel & Co., 2013 U.S. Dist. LEXIS 39824, at *3 (citing Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999) for the proposition that “a court without personal jurisdiction is powerless to take further action”); Verizon Trademark Servs., 810 F. Supp. 2d at 1323. C. This Court’s Exercise Of Personal Jurisdiction Over Any Of The New Defendants Would Violate Their Right To Due Process Under The Fourteenth Amendment. Even if the Florida long-arm statute appeared to provide a basis for the exercise of personal jurisdiction over the New Defendants by this Court (which it does not), this action must be dismissed if there are insufficient minimum contacts between the New Defendants and the forum to “satisfy the Due Process Clause of the Fourteenth Amendment so that maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Carmel & Co., 2013 U.S. Dist. LEXIS 39824, at *4. This action must be dismissed as to the New Defendants because they do not have the required minimum contacts with Florida, and exercise of jurisdiction in this matter would offend traditional notices of fair play and substantial justice. The locus of operative facts is in California, and both MGHCANDY and OSEARY reside in 16 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 17 of 22

California, where their business records are also located. Hard Candy cannot establish that any of the New Defendants have any HCF-related connection to Florida, and none of the New Defendants are responsible for HCF's allegedly infringement of Hard Candy's purported trademark(s). This Court’s decision to exercise personal jurisdiction over HCF is based upon relatively few contacts with Florida. MGHCANDY’s connection to Florida is far more attenuated than is HCF’s, because its only connection to Florida is through its association with HCF. MGHCANDY is a nonmanaging member of the HCF limited liability company, and it has only a limited (and often waivable) right to veto (but not compel) certain HCF decisions regarding HCF’s use of the HARD CANDY FITNESS marks. MGHCANDY can only truly control the purely creative aspects of HCF's use of the HARD CANDY FITNESS marks−and the creative aspects of HCF's uses of the HARD CANDY FITNESS marks are not at issue in this case. MGHCANDY simply had no fair warning prior to prior to service of the summons and FAC upon it that investing in HCF would cause Hard Candy to sue MGHCANDY in Florida. OSEARY’s connection to Florida is even more attenuated than is MGHCANDY’s. OSEARY is a member of the MGHCANDY limited liability company, and all of his HCF-related actions were engaged in while he was acting within the scope of his role as a senior management representative of MGHCANDY. OSEARY had no fair warning prior to service of the summons and FAC upon him that representing MGHCANDY in its dealings with HCF would cause Hard Candy to sue him personally in Florida. Finally, CICCONE’s connection to Florida is more attenuated still. She too is a member of the MGHCANDY limited liability company, but she has had virtually no direct responsibility for any MGHCANDY dealings with HCF, and only two personal interactions with HCF personnel regarding HCF operations. Hard Candy has already demonstrated it will likely try to depose all witnesses in Florida for its own convenience. If this litigation moves forward against the New Defendants in Florida, the New Defendants will have to incur substantial extra expense (which may not be recoverable from HCF), and spend additional time attending and defending depositions and otherwise litigating this case outside of their own state. Even if the New Defendants are successful in recovering their costs 17 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 18 of 22

from HCF, the increased cost of defending the New Defendants in this litigation will negatively affect HCF’s profitability, and thus reduce profits that flow to MGHCANDY as a member of HCF. In addition, the New Defendants’ ability to defend themselves against Hard Candy's allegations may well be severely hampered if the case is tried in Florida. Many of the witnesses likely to be asked to testify at trial on behalf of the New Defendants are third party witnesses (e.g., Richard Feldstein, one or more California-based members of the digital team that assists HCF, KPM, WINTV, GAIAM, and Amazon), and the New Defendants will have no ability to compel their appearance at trial in Florida under FRCP 45. These multiple burdens on the New Defendants outweigh Plaintiff’s interest in obtaining relief in this case in Florida. Additionally, Florida has virtually no vested interest in the outcome of this primarily federal question litigation. No state law claims are alleged, and Hard Candy's causes of action do not arise out of any of the New Defendants’ actual conduct within the state. In fact, the only Florida interest that could be served by keeping this action in a Florida court is providing Floridian resident, Hard Candy, with a convenient forum in which to litigate this case. For all the reasons set forth above, the exercise of personal jurisdiction over the New Defendants would not comport with principles of fair play and substantial justice. None of the other factors relevant to this determination weigh strongly in favor or against jurisdiction, and so it is clear that forcing New Defendants to litigate this case in Florida would violate traditional notions of fair play and substantial justice, and the exercise of personal jurisdiction would be improper. This action must be dismissed as to the New Defendants. Bioheart, Inc., 2013 U.S. Dist. LEXIS 57259, at *16 (refusing to exercise personal jurisdiction because (1) the defendant resided in California, (2) all tortious conduct alleged took place while defendant resided in California, (3) there was no showing that it would be overall more convenient or effective to litigate the action in Florida than in California, and (4) plaintiff did not set forth any interest Florida had in adjudicating the dispute other than the fact that plaintiff resided in Florida). /// 

18 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 19 of 22

D. For the Convenience Of Witnesses And The Interests of Justice, If Not Dismissed As To Any Of The New Defendants, This Matter Should Be Transferred To California. Requests to transfer venue are governed by federal statute 28 U.S.C. § 1404(a). “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). A two-pronged inquiry is used to determine whether transferring venue is proper: (1) the proposed venue must be one in which the action could originally have been brought by Plaintiff, and (2) a balance of the private and public factors must justify the transfer. Cellularvision Tech. & Telecomm., L.P. v. Alltel Corp., 508 Supp.2d 1186, 1189 (S.D. Fla. 2007). The factors to be considered under the second prong of the analysis include: (1) the convenience of the parties; (2) convenience of the witnesses; (3) relative ease of access to sources of proof; (4) the locus of operative facts; (5) the weight accorded a Plaintiff’s choice of forum; (6) the public interest; and (7) trial efficiency. See Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005); Meterlogic, Inc. v. Copier Solutions, Inc., 185 F. Supp. 2d 1292, 1299 (S.D. Fla. 2002); Mason v. Smithkline Beecham Clinical Labs., 146 F.Supp. 2d 1355, 1359 (S.D. Fla. 2001). If CICCONE is dismissed from this action altogether, the first prong of the analysis is plainly satisfied because this action could have been brought in either the Northern or Central District of California (the “California Venues”) pursuant to 28 § 1391(b)(1) because both NEV and HCF reside in Lafayette, California, and both MGHCANDY and OSEARY reside in Los Angeles, California. In addition, even if CICCONE is not ultimately dismissed from this action, this action could have been brought in either of the California Venues pursuant to 28 U.S.C. § 1391(b)(2), because HCF’s and NEV’s, and MGHCANDY’s and OSEARY’s business activities are the subject of this litigation, and their business activities are run out of Lafayette, California and Los Angeles California, respectively. 28 U.S.C. § 1391(b)(2). An analysis of the relevant private and public factors favors transfer. California is far more 19 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 20 of 22

convenient for the New Defendants and third party witnesses, because most relevant business records and witnesses can be found in California or on the West Coast. In addition, the New Defendants will defend themselves from California, where their trial counsel is located. Also, the New Defendants would spend additional funds and time defending themselves out-of-state if this case stays in Florida. In addition, the locus of operative facts is clearly in California, where NEV, HCF and the New Defendants are managed. It is clear that the main thrust of the FAC is to challenge HCF’s use of its HARD CANDY FITNESS mark in connection with its luxury fitness clubs, and to stall (or circumvent) the cancellation proceeding initiated by HCF for U.S. Trademark Registration No. 2819833 [HARD CANDY]. In such an action, only inefficiencies are likely to be caused by trying the case in Florida rather than California. Moreover, it would be unjust to exercise jurisdiction over the New Defendants in this case. Given the cost and inconvenience of travel, The New Defendants’ third party witnesses are very likely to refuse to testify at trial in Florida, whereas they would not have that option if the case were tried in California. Plaintiff, however, will suffer no unfair prejudice by litigating in California because it will be able to compel any of its own employees located in Florida to appear for trial in California should it prove necessary, all the defendants are easily located on the West Coast, and the key non-party witnesses with knowledge relating to sales of Addicted to Sweat DVDs are located in California, Washington, and Colorado. Thus, trying this case in Florida would impose unfair burdens upon New Defendants and their third party witnesses for no good reason, offending traditional notions of fair play and substantial justice. The weight given to a Plaintiff’s choice of forum should not be so great as to permit a Plaintiff to hugely inconvenience multiple parties and third party witnesses (or prejudice defendants' ability to effectively try their case) when the New Defendants' connection to Florida is as tenuous as it is here. Thus, the public interest weighs in favor of transferring this action to the Northern District of California (or, as a second choice, to the Central District of California). With respect to the other factors, they are neutral to a transfer. Under these circumstances, if the FAC is not dismissed as to any of the New Defendants, this action against should be transferred to the 20 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 21 of 22

Northern (or Central) District of California pursuant to 28 U.S.C. § 1404(a). V. CONCLUSION For the reasons set forth above, the New Defendants ask this Court to dismiss the FAC as to them, or in the alternative, transfer the action to the Northern District of California (as a first choice), or to the Central District of California (as a second choice). LOCAL RULE 7.1(a)(3) CERTIFICATION I, Yano Rubinstein, hereby certify that counsel for the New Defendants has conferred with counsel for all parties who may be affected by the relief sought in this Motion, namely Plaintiff, pursuant to Local Rule 7.1(a)(3) in a good faith effort to resolve the issues raised in the Motion, but has been unable to do so.

DATED: July 2, 2014

 

Respectfully submitted,

Yano Rubinstein (CBN 214277) [email protected] RUBINSTEIN LAW 660 4th St. 302 San Francisco, CA 94017 Telephone: (415) 967-1970 Facsimile: (415) 236-6409 Attorneys for Defendants MGHCANDY, LLC, GUY OSEARY, and MADONNA LOUISE CICCONE. Admitted Pro Hac Vice

21 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109 Entered on FLSD Docket 07/02/2014 Page 22 of 22

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the counsel of record on the service list who are deemed to have consented to electronic service are being served this 12th day of November, 2013 with a true and correct copy of the foregoing SPECIALLY APPEARING DEFENDANTS MGHCANDY, LLC'S, GUY OSEARY'S, AND MADONNA LOUISE CICCONE'S NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR IN THE ALTERNATIVE TO TRANSFER TO NORTHERN (OR CENTRAL) DISTRICT OF CALIFORNIA and the accompanying DECLARATIONS OF GUY OSEARY, RICHARD FELDSTEIN, AND SARA ZAMBRENO filed in support thereof via the Court’s CM/ECF system.

____________________________________

22 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-1 Entered on FLSD Docket 07/02/2014 Page 1 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:13-cv-23705-ALTONAGA HARD CANDY, LLC, A Florida limited liability company, Plaintiff, v. HARD CANDY FITNESS, LLC, a Delaware company, NEW EVOLUTION VENTURES, LLC, a Delaware company, Defendants.

HARD CANDY FITNESS, LLC, a Delaware company, Counterclaimant, v. HARD CANDY FITNESS, LLC, a Delaware company, NEW EVOLUTION VENTURES, LLC, a Delaware company, MGHCANDY, LLC, a Delaware company, GUY OSEARY, an individual, and MADONNA LOUISE CICCONE, an individual, Counterdefendants.

DECLARATION OF RICHARD FELDSTEIN IN SUPPORT OF SPECIALLY APPEARING DEFENDANTS MGHCANDY, LLC'S, GUY OSEARY'S, AND MADONNA LOUISE CICCONE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR IN THE ALTERNATIVE TO TRANSFER TO NORTHERN (OR CENTRAL) DISTRICT OF CALIFORNIA 1 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF RICHARD FELDSTEIN IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-1 Entered on FLSD Docket 07/02/2014 Page 2 of 6

DECLARATION OF RICHARD FELDSTEIN I, Richard Feldstein, declare as follows: 1.

I am a partner of Nigro Karlin Segal Feldstein & Bolno ("NKSF&B"), an

accounting and business management firm based in Los Angeles, California. I have worked for NKSF&B since 2007. NKSF&B (and I, in particular) provide business management and accounting services to MGHCANDY, LLC ("MGHCANDY") and MADONNA LOUISE CICCONE ("CICCONE"), both of whom are named as defendants in this litigation. I make this declaration in support of MGHCANDY's, GUY OSEARY'S ("OSEARY's"), and CICCONE's (collectively, the "New Defendants'") motion to dismiss or transfer this action. I have personal knowledge of the following facts and could testify competently as to the following if called upon to do so: 2.

As a partner in NKSF&B, I have exclusively provided personal and business

accounting services, and business management services, to CICCONE for at least the last five years. As CICCONE's business manager and personal and business accountant, I have personal knowledge of, and have handled and become familiar with, CICCONE's business and financial practices and transactions. As a partner in NKSF&B, I have also exclusively provided business management and accounting services to MGHCANDY since the company's formation in November 2010. As the business manager and accountant for MGHCANDY, I have personal knowledge of, and have handled and become familiar with, MGHCANDY's business and financial practices and transactions. 3.

MGHCANDY is a Delaware limited liability company. It resides in Los Angeles,

California, where it deems the Los Angeles NKSF&B office, located at 10960 Wilshire Blvd., 5th Floor, Los Angeles, California 90024, to be its principal place of business. MGHCANDY is a non-managing member of Hard Candy Fitness, LLC ("HCF"), a named defendant in this litigation. MGHCANDY was formed (effective November 24, 2010) pursuant to the Delaware Limited Liability Company Act, Chapter 434 of Title 6 of the Delaware Code, 6 Del. Code §§ 2 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF RICHARD FELDSTEIN IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-1 Entered on FLSD Docket 07/02/2014 Page 3 of 6

18-101 et seq., as amended from time to time. MGHCANDY was formed for the purposes of permitting OSEARY and CICCONE to hold an ownership interest in HCF, fulfilling obligations and receiving benefits as set forth under the HCF Amended and Restated Operating Agreement (the "HCF Operating Agreement"), facilitating the license and/or transfer of certain intellectual property rights to HCF necessary to its operation, and engaging in lawful business or activities necessary or advisable in connection therewith or incidental thereto. CICCONE and OSEARY are the sole members of MGHCANDY. The MGHCANDY Operating Agreement designates OSEARY as MGHCANDY's senior management representative. In this role, OSEARY represents MGHCANDY in its business dealings. HCF was also formed (effective December 23, 2008) as a Delaware limited liability company pursuant to the Delaware Limited Liability Company Act, Chapter 434 of Title 6 of the Delaware Code, 6 Del. Code §§ 18-101 et seq. 4.

At no time during the last five years, has either CICCONE or MGHCANDY: (1)

applied for or been granted a license to conduct business in Florida; (2) registered with the Florida Secretary of State to do business in Florida; (3) purchased, owned or leased any real property in Florida; (4) filed tax returns with the state of Florida; (5) borrowed any money in Florida or held a mortgage or other lien on any real property in Florida; (6) insured any person, and/or property for any activity in Florida; (7) opened or maintained any offices, mailing addresses, telephone numbers, bank accounts, or officers in Florida; (8) hired or otherwise employed any company, contractor, consultant, or person located in Florida to provide them with any business services relating to HCF; (9) entered into any HCF-related contract with any person or entity residing in Florida; (10) entered into any contract requiring them to perform any HCFrelated act in Florida; (11) distributed HCF-related promotional materials or engaged in any HCF-related solicitation activities either (a) within the state of Florida, or (b) outside the state of Florida that targets residents of the state of Florida; (12) owned or operated any internet website or social media page (including without limitation any such page that can be found on www.facebook.com, www.twitter.com, or elsewhere) that promoted or sold HCF-related goods 3 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF RICHARD FELDSTEIN IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-1 Entered on FLSD Docket 07/02/2014 Page 4 of 6

or services; (13) manufactured for sale (or sold) or rendered, offered to sell or render, or marketed any HCF-related goods or services in the United States, whether over the internet or in brick and mortar stores; (14) had any dealings with Watch It Now TV, Inc. ("WINTV"), Key Priority Management ("KPM") or Gaiam Americas, Inc. ("GAIAM") in connection with those entities' efforts to manufacture, market, sell, or otherwise distribute the Addicted to Sweat DVDs; or (15) had anything to do with the hiring of, or any purposeful or significant contact with any Florida-based HCF employee or contractor regarding on-going efforts to market or distribute the Addicted to Sweat DVDs. 5.

As CICCONE's business manager and personal and business accountant, I also

have personal knowledge of, and have handled and become familiar with the financial and other business terms of CICCONE's business entity's representation and performance arrangement with concert promoter Live Nation. For at least the last 5 years, Live Nation has exclusively produced world-wide concert tours in which CICCONE performed. As part of the contractual arrangement between Live Nation and one of CICCONE's business entities, Live Nation scheduled, organized, produced and financed all such concert tours, and had the right to (and did) manufacture and sell associated merchandise. To the best of my knowledge, CICCONE has not sold concert tickets or merchandise connected with the Live Nation concert tours during the last five years. Instead, during that time, Live Nation paid one of CICCONE's business entities for her performance and involvement in such tours as contractually agreed. 6.

As CICCONE's business manager and accountant for MGHCANDY, I have

personal knowledge of, and have become familiar with the HCF Operating Agreement. The HCF Operating Agreement (¶ 6.1) provides that HCF "and its business shall be managed and operated exclusively by the Managing Member" except as set forth elsewhere in the HCF Operating Agreement. An entity ultimately owned by NEV has a membership interest in, and is technically the managing member of HCF, though NEV exercises operational control over HCF. The HCF Operating Agreement (¶ 6.4 and ¶ 6.8) gives MGHCANDY high-level approval rights 4 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF RICHARD FELDSTEIN IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-1 Entered on FLSD Docket 07/02/2014 Page 5 of 6

in certain matters relating to the use of the HARD CANDY FITNESS mark. NEV and MGHCANDY must both approve of the following decisions before NEV may implement them: (a) the identity of any licensee, operator, or owner of an HCF Club, and the material terms of such agreements, (b) development of any product under the Hard Candy Fitness name, and (c) the terms of any agreement for the license or distribution of any approved products. In addition, NEV must obtain MGHCANDY's approval as to the following decisions before NEV can implement those decisions: (d) expansion of the scope of HCF company business beyond operation of HCF clubs, (e) sale of products outside of the HCF clubs, (f) the general artistic "look and feel" of any material renovation of any HCF club, (g) all material creative decisions as to HCF itself, the HCF annual marketing plan, and HCF products, and (h) the identity of any licensee or distributor of any approved products. NEV is not obligated to move forward with every MGHCANDY-approved decision. Instead, once MGHCANDY approval is obtained, NEV makes the final decision as to whether to proceed or not. However, in the event there is a conflict as to any creative decision, MGHCANDY's decision governs. /// /// /// /// /// /// /// /// /// ///

5 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF RICHARD FELDSTEIN IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-1 Entered on FLSD Docket 07/02/2014 Page 6 of 6

Case 1:13-cv-23705-CMA Document 109-2 Entered on FLSD Docket 07/02/2014 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:13-cv-23705-ALTONAGA HARD CANDY, LLC, A Florida limited liability company, Plaintiff, v. HARD CANDY FITNESS, LLC, a Delaware company, NEW EVOLUTION VENTURES, LLC, a Delaware company, Defendants.

HARD CANDY FITNESS, LLC, a Delaware company, Counterclaimant, v. HARD CANDY FITNESS, LLC, a Delaware company, NEW EVOLUTION VENTURES, LLC, a Delaware company, MGHCANDY, LLC, a Delaware company, GUY OSEARY, an individual, and MADONNA LOUISE CICCONE, an individual, Counterdefendants.

DECLARATION OF GUY OSEARY IN SUPPORT OF SPECIALLY APPEARING DEFENDANTS MGHCANDY, LLC'S, GUY OSEARY'S, AND MADONNA LOUISE CICCONE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR IN THE ALTERNATIVE TO TRANSFER TO NORTHERN (OR CENTRAL) DISTRICT OF CALIFORNIA

1 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF GUY OSEARY IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-2 Entered on FLSD Docket 07/02/2014 Page 2 of 10

DECLARATION OF GUY OSEARY I, Guy Oseary, declare as follows: 1.

I am a talent manager and business man residing in Los Angeles, California. I am

also the personal manager and a business partner of international pop star and icon MADONNA LOUISE CICCONE ("CICCONE"), a named defendant in this action. I own an interest in multiple business ventures, including an ownership interest in MGHCANDY, LLC ("MGHCANDY"). CICCONE holds the remaining ownership interest in MGHCANDY, making CICCONE and me the sole members of MGHCANDY. I have been designated under the MGHCANDY Operating Agreement as the senior management representative of MGHCANDY representing MGHCANDY in its business dealings. I am also named personally as a defendant in this litigation. I make this declaration in support of my, MGHCANDY's, and CICCONE's (collectively, the "New Defendants") motion to dismiss or transfer this action. I have personal knowledge of the following facts and could testify competently as to the following if called upon to do so: 2.

MGHCANDY is a Delaware limited liability company. It resides in Los Angeles,

California, where it deems the Los Angeles office of accounting and business management firm Nigro Karlin Segal Feldstein & Bolno ("NKSF&B"), located at 10960 Wilshire Blvd., 5th Floor, Los Angeles, California 90024, to be its principal place of business. MGHCANDY is a nonmanaging member of Hard Candy Fitness, LLC ("HCF"), a named defendant in this litigation. MGHCANDY was formed (effective November 24, 2010) pursuant to the Delaware Limited Liability Company Act, Chapter 434 of Title 6 of the Delaware Code, 6 Del. Code §§ 18-101 et seq., as amended from time to time (the "Delaware LLC Act"). MGHCANDY was formed for the purposes of permitting myself and CICCONE to hold an ownership interest in HCF, fulfilling obligations and receiving benefits as set forth under the HCF Amended and Restated Operating Agreement (the "HCF Operating Agreement"), facilitating the license and/or transfer of certain intellectual property rights to HCF necessary to its operation, and engaging in lawful business or 2 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF GUY OSEARY IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-2 Entered on FLSD Docket 07/02/2014 Page 3 of 10

activities as necessary or advisable in connection therewith or incidental thereto. HCF was also formed (effective December 23, 2008) as a Delaware limited liability company pursuant to the Delaware LLC Act. 3.

As MGHCANDY's senior management representative and CICCONE's personal

manager, I have personal knowledge of and am very familiar with MGHCANDY's, CICCONE's, and my own business and financial practices and assets during the last five years. At no time during the last five years have any of the New Defendants: (1) applied for or been granted a license to conduct business in Florida; (2) registered with the Florida Secretary of State to do business in Florida; (3) purchased, owned or leased any real property in Florida; (4) filed tax returns with the state of Florida; (5) borrowed any money in Florida or held a mortgage or other lien on any real property in Florida; (6) insured any person and/or property for any activity in Florida; (7) opened or maintained any offices, mailing addresses, telephone numbers, bank accounts, or officers in Florida; (8) hired or otherwise employed any company, contractor, consultant, or person located in Florida to provide them with any business services relating to HCF; (9) entered into any HCF-related contract with any person or entity residing in Florida; (10) entered into any contract requiring them to perform any HCF-related act in Florida; (11) distributed HCF-related promotional materials or engaged in any HCF-related solicitation activities either (a) within the state of Florida, or (b) outside the state of Florida that targets residents of the state of Florida; (12) owned or operated any internet website or social media page (including without limitation any such page that can be found on www.facebook.com, www.twitter.com, or elsewhere) that promoted or sold HCF-related goods or services; (13) manufactured for sale (or sold) or rendered, offered to sell or render, or marketed any HCFrelated goods or services in the United States, whether over the internet or in brick and mortar stores; (14) had any dealings with Watch It Now TV, Inc. ("WINTV"), Key Priority Management ("KPM") or Gaiam Americas, Inc. ("GAIAM") in connection with those entities' efforts to manufacture, market, sell, or otherwise distribute the Addicted to Sweat DVDs in this 3 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF GUY OSEARY IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-2 Entered on FLSD Docket 07/02/2014 Page 4 of 10

case; or (15) had anything to do with the hiring of, or any purposeful or significant contact with any Florida-based HCF employee or contractor regarding on-going efforts to market or distribute the Addicted to Sweat DVDs. There has never been an HCF club in Florida. 4.

As CICCONE's personal manager, I have personal knowledge of and am familiar

with the terms of her representation and performance agreements (through one of her other business entities) with concert promoter Live Nation, as well as her performance schedule and performances themselves. During the last five years, Live Nation has exclusively produced world-wide concert tours in which CICCONE performed. As part of the contractual arrangement between Live Nation and one of CICCONE's business entities, Live Nation scheduled, organized, produced and financed all such concert tours, and had the right to (and did) manufacture and sell associated merchandise. From 2012-2013, Live Nation produced a worldwide concert tour. During the scheduled concerts, CICCONE performed as required by Live Nation (including during two concerts in Miami, Florida in late November 2012), without promoting HCF or HCF goods or services. CICCONE did not attend any special events that promoted Addicted to Sweat DVDs while she was in Florida for the November 2012 concerts. To the best of my knowledge, CICCONE has not directly sold concert tickets or merchandise connected with the Live Nation concert tours during the last five years. Instead, during that time, Live Nation compensated one of CICCONE's business entities for her performances and involvement in such tours as contractually agreed. 5.

As the senior management representative of MGHCANDY, I manage the day-to-

day operations of MGHCANDY from Los Angeles, California. Each of my interactions and communications with HCF has been conducted in my role as the senior management representative for MGHCANDY. Based on this role, I have personal knowledge of, and have handled and become familiar with MGHCANDY business and am familiar with the HCF Operating Agreement. The HCF Operating Agreement (¶ 6.1) provides that HCF "and its business shall be managed and operated exclusively by the Managing Member" except as set 4 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF GUY OSEARY IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-2 Entered on FLSD Docket 07/02/2014 Page 5 of 10

forth elsewhere in the HCF Operating Agreement. An entity ultimately owned by NEV has a membership interest in, and is technically the managing member of HCF, though NEV exercises operational control over HCF. The HCF Operating Agreement (¶ 6.4 and ¶ 6.8) gives MGHCANDY high-level approval rights in certain matters relating to the use of the HARD CANDY FITNESS mark. NEV and MGHCANDY must both approve of the following decisions before NEV may implement them: (a) the identity of any licensee, operator, or owner of an HCF Club, and the material terms of such agreements, (b) development of any product, and (c) the terms of any agreement for the license or distribution of any approved products. In addition, NEV must obtain MGHCANDY's approval as to the following decisions before NEV can implement those decisions: (a) expansion of the scope of HCF company business beyond operation of HCF clubs, (b) sale of products outside of the HCF clubs, (c) the general artistic "look and feel" of any material renovation of any HCF club, (d) all material creative decisions as to HCF itself, the HCF annual marketing plan, and HCF products, and (e) the identity of any licensee or distributor of any approved products. NEV is not obligated to move forward with any MGHCANDY-approved course of action. Instead, once MGHCANDY approval is obtained, NEV makes the final decision as to whether or not to proceed. However, in the event there is a conflict as to any creative decision, MGHCANDY's decision governs. 6.

NEV provides periodic updates to MGHCANDY regarding HCF's strategic

direction and performance, including the new clubs HCF expects to open and general plans for new goods and services in development. However, those updates are typically emailed to me and they constitute conceptual updates as to what is being considered and planned at a high level, rather than detailed plans that require MGHCANDY approval. Most substantive communications between HCF and MGHCANDY consist of emails and phone calls between Brent Leffel and myself, and I understand that such emails in MGHCANDY's possession have already been produced in this litigation. Approvals sought from MGHCANDY by HCF have been requested by email, and I understand that such emails that are still in MGHCANDY's 5 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF GUY OSEARY IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-2 Entered on FLSD Docket 07/02/2014 Page 6 of 10

possession have already been produced in this litigation. Former HCF representative (and former CEO) Craig Hoffman never met in person with either myself or CICCONE to discuss HCF operations, and Brent Leffel (HCF President) has only had two substantive meetings with MGHCANDY member CICCONE since November 2010 (one 45 minute teleconference and one 90-minute in-person meeting in 2013). HCF has only sent a single marketing plan to MGHCANDY for its approval. HCF obtained MGHCANDY's approval to create and then distribute the Addicted to Sweat DVD outside of HCF clubs through WINTV, KPM, and GAIAM, and it also obtained MGHCANDY's approval for the artwork on the cover of the Addicted to Sweat DVD. HCF obtained no other approvals relating to the Addicted to Sweat DVD from MGHCANDY. 7.

A digital team provided by Live Nation helps Live Nation (and/or its affiliates)

manage the content appearing on the www.madonna.com website and all CICCONE-authorized social media pages. I arranged for HCF to work with members of that digital team (at HCF's expense) so that HCF could make arrangements to have MGHCANDY-approved content posted on the www.madonna.com website and/or other CICCONE-authorized social media accounts. MGHCANDY has only approved the creative aspects of content HCF posted on the internet with the assistance of the digital team, meaning the format of the post (i.e. contest or other announcement or comment), and the images, graphics, colors, word choices used in the post to convey HCF's message. Similarly, HCF has obtained MGHCANDY's approval for creative choices made by HCF in connection with HCF-related goods, services, and clubs (e.g., selection of images, graphics, colors, themes, venues, and word choice). HCF has never asked MGHCANDY to approve: (1) any purposeful interjection of HCF goods or services into the state of Florida; (2) any purposeful marketing of HCF goods or services to residents of the state of Florida; (3) the publication of any interviews about the Addicted to Sweat DVD in Florida; (4) any decision to try to sell Addicted to Sweat DVDs in Florida or to residents of Florida; (5) any decision to hire a Florida-based marketing firm to act as HCF's marketing director; or (6) any 6 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF GUY OSEARY IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-2 Entered on FLSD Docket 07/02/2014 Page 7 of 10

decision to hire a Florida resident as HCF's Chief Marketing Officer. In addition, though MGHCANDY has approval rights over the aesthetic appearance of the HARD CANDY FITNESS mark and logos used by HCF, MGHCANDY does not have any authority to prevent HCF from making use of the substance of the HARD CANDY FITNESS mark or logos on, or in connection with, its manufacture, sale, rendering, offers to sell or render, or marketing of any approved HCF-related goods or services. 8.

On or about May 15, 2014, MGHCANDY assigned to HCF its rights in the

unregistered mark HARD CANDY for use on clothing, bags (e.g., gym bags, tote bags, etc.), jewelry, athletic gear, and fashion accessories sold in U.S. commerce. None of the New Defendants is involved in HCF's trademark management decisions. None of the New Defendants have participated in any of HCF's trademark prosecution efforts. HCF has not sought approval from any of the New Defendants for its positions or conduct in this litigation. 9.

My understanding is that Hard Candy has conducted extensive discovery in this

case, and already obtained approximately 100,000 pages of documents from HCF and 6,100 pages of documents from MGHCANDY. As MGHCANDY's senior management representative and CICCONE's personal manager, I have personal knowledge of and am very familiar with MGHCANDY's and CICCONE's (as well as my own) business and legal practices and counsel. If this litigation moves forward against the New Defendants, it is my understanding that all of their defenses will be conducted from California where their litigation counsel is located, and their depositions will be taken and defended by counsel that is likely to be different from HCF's and NEV's counsel. In addition, if this litigation moves forward against the New Defendants, it is my understanding that the New Defendants will likely need to take the depositions of several witnesses located in or near California, including at least the following (on the stated topics): a. Myself, who resides in California, will likely be deposed regarding my communications with HCF personnel, MGHCANDY's exercise of its various approval rights set forth in the HCF Operating Agreement; my 7 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF GUY OSEARY IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-2 Entered on FLSD Docket 07/02/2014 Page 8 of 10

management of MGHCANDY, the roles and responsibilities carried out by each member of MGHCANDY, and my efforts to facilitate a settlement discussion between a representative of Hard Candy and HCF; b. Richard Feldstein, partner of business management firm Nigro Karlin Segal Feldstein & Bolno, who resides in California, will likely be deposed regarding MGHCANDY's financial and other business records; c. One or more members of the digital team who assists HCF who each reside in California, will likely be deposed regarding their provision of services to HCF in connection with HCF social media campaigns and websites; d. Brent Leffel, who resides in California, will likely be deposed regarding the scope and nature of the business relationship between HCF and MGHCANDY, the HCF Operating Agreement, discussions between Mr. Leffel and MGHCANDY regarding HCF and pertaining to MGHCANDY's exercise of its approval rights as set forth in the HCF Operating Agreement; e. Colleen Sparda, who resides in California, will likely be deposed regarding the HCF marketing efforts relating to HCF goods and services and MGHCANDY's involvement therewith, if any; f. KPM, who resides in California, will likely be deposed regarding marketing efforts directed toward selling, and sales of, Addicted to Sweat DVDs in the United States; g. WINTV, who resides in California, will likely be deposed regarding marketing efforts directed toward selling, and sales of, Addicted to Sweat DVDs over the internet and internationally;

8 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF GUY OSEARY IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-2 Entered on FLSD Docket 07/02/2014 Page 9 of 10

h. Amazon.com, who resides in Seattle, Washington, will likely be deposed regarding sales of Addicted to Sweat DVDs through www.amazon.com; and i. GAIAM Americas, Inc., who resides in Colorado, will likely be deposed regarding marketing efforts directed toward selling, and sales of, Addicted to Sweat DVDs in the United States. 10.

MGHCANDY and I are informed that Hard Candy is currently seeking to take the

depositions of MGHCANDY and NEV's Mark Mastrov, Jim Rowley, Linell Killus, and Colleen Sparda, and that Hard Candy's counsel has repeatedly argued it is entitled to take those depositions in Florida, rather than in California where the witnesses reside. Although the New Defendants are entitled to indemnification from HCF in connection with this litigation, the New Defendants are agreed that there is at least the chance that New Defendants will not be able to recover all their litigation costs from HCF. /// /// /// /// /// /// /// /// /// /// /// /// /// 9 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF GUY OSEARY IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-2 Entered on FLSD Docket 07/02/2014 Page 10 of 10

Case 1:13-cv-23705-CMA Document 109-3 Entered on FLSD Docket 07/02/2014 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:13-cv-23705-ALTONAGA HARD CANDY, LLC, A Florida limited liability company, Plaintiff, v. HARD CANDY FITNESS, LLC, a Delaware company, NEW EVOLUTION VENTURES, LLC, a Delaware company, Defendants.

HARD CANDY FITNESS, LLC, a Delaware company, Counterclaimant, v. HARD CANDY FITNESS, LLC, a Delaware company, NEW EVOLUTION VENTURES, LLC, a Delaware company, MGHCANDY, LLC, a Delaware company, GUY OSEARY, an individual, and MADONNA LOUISE CICCONE, an individual, Counterdefendants. DECLARATION OF SARA ZAMBRENO TURNER IN SUPPORT OF SPECIALLY APPEARING DEFENDANTS MGHCANDY, LLC'S, GUY OSEARY'S, AND MADONNA LOUISE CICCONE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR IN THE ALTERNATIVE TO TRANSFER TO NORTHERN (OR CENTRAL) DISTRICT OF CALIFORNIA

1 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF SARA ZAMBRANO IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-3 Entered on FLSD Docket 07/02/2014 Page 2 of 5

DECLARATION OF SARA ZAMBRENO TURNER I, Sara Zambreno Turner, declare as follows: 1.

I have been employed by Guyo Entertainment, which is owned by GUY

OSEARY ("OSEARY"), a named defendant in this litigation since calendar year 2000. Guyo Entertainment furnishes personal management services to MADONNA LOUISE CICCONE ("CICCONE"), who is also a named defendant in this litigation, and has done so since 2005. While employed at Guyo Entertainment (both as an "Assistant" and (since 2012) an "Assistant Manager," both titles referred to collectively hereinafter as "Assistant"), I have worked extensively with CICCONE, and I am familiar with her personal, business, and performance schedules, as well as her business and personal transactions. I also regularly act as a conduit through which information is passed between CICCONE and other persons, and with the exception of only a handful of occasions (approximately five) after November 24, 2010, I acted as the conduit for communications between CICCONE, on the one hand, and representatives of Hard Candy Fitness, LLC ("HCF") and/or New Evolution Ventures, LLC ("NEV"), on the other hand, on HCF-related matters. I make this declaration in support of MGHCANDY, LLC's, GUY OSEARY's, and CICCONE's motion to dismiss or transfer this action. I have personal knowledge of the following facts and could testify competently as to the following if called upon to do so: 2.

As an Assistant for CICCCONE, I have personal knowledge of and am very

familiar with CICCONE's conduct and business practices during the last five years. In that time, neither CICCONE (nor I as an Assistant for CICCCONE) have: (1) personally owned or operated any internet website or social media page (including without limitation any such page that can be found on www.facebook.com, www.twitter.com, or elsewhere) that promoted or sold HCF-related goods or services; (2) manufactured for sale (or sold) or rendered, offered to sell or render, or marketed any HCF-related goods or services in the United States, whether over the internet or in brick and mortar stores; (3) had any dealings with Watch It Now TV, Inc. 2 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF SARA ZAMBRANO IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-3 Entered on FLSD Docket 07/02/2014 Page 3 of 5

("WINTV"), Key Priority Management ("KPM") or Gaiam Americas, Inc. ("GAIAM") in connection with those entities' efforts to manufacture, market, sell, or otherwise distribute the Addicted to Sweat DVDs at issue in this case; (4) had anything to do with the hiring of, or any purposeful or significant contact with any Florida-based HCF employee or contractor regarding on-going efforts to market or distribute Addicted to Sweat DVDs; (5) opened or maintained any offices, mailing addresses, or telephone numbers in Florida; (6) hired or otherwise employed any company, contractor, consultant, or person located in Florida to provide CICCONE with any business services relating to HCF; (7) entered into any contract requiring CICCONE to perform any HCF-related act in Florida; or (8) distributed HCF-related promotional materials or engaged in any HCF-related solicitation activities within the state of Florida. 3.

As an Assistant for CICCCONE, I am also very familiar with CICCONE's

performance schedule and conduct during the period 2012-2013, including CICCONE's concert performances and appearances in November and December 2012. In 2012 and 2013, Live Nation produced a world-wide concert tour. As part of the arrangement between Live Nation and CICCONE's business entity, Live Nation scheduled, organized, and produced the concerts scheduled on the tour, and manufactured and sold merchandise under the HARD CANDY mark. CICCONE performed during the concerts scheduled on that tour in compliance with her performance contract with Live Nation, including when she performed in Miami, Florida in late November 2012. During the scheduled concerts, including those in Miami, Florida in November 2012, CICCONE performed without promoting HCF and/or HCF products while doing so. CICCONE did not attend any special events in Miami, Florida that were designed to (or did) promote Addicted to Sweat DVDs while she was there to perform in November 2012. 4.

As the Assistant to CICCONE, I have communicated with HCF and NEV

personnel for the purpose of handling various logistical issues (including, e.g., logistical issues relating to CICCONE and other dancers' personal appearances at HCF clubs.). The only other purpose of my communications with HCF and/or NEV personnel is to act as the conduit through 3 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF SARA ZAMBRANO IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-3 Entered on FLSD Docket 07/02/2014 Page 4 of 5

which CICCONE (as a representative of MGHCANDY) can stay informed as to any creative decisions she is asked to make on behalf of MGHCANDY, and to convey those decisions when necessary. However, HCF has never asked CICCONE (either individually or in her capacity as an MGHCANDY representative) to approve: (1) any purposeful interjection of HCF goods or services into the state of Florida; (2) any purposeful marketing of HCF goods or services to residents of the state of Florida; (3) the publication of any interviews about the Addicted to Sweat DVD in Florida; (4) any decision to try to sell Addicted to Sweat DVDs in Florida or to residents of Florida; (5) any decision to hire a Florida-based marketing firm to act as HCF's marketing director; or (6) any decision to hire a Florida resident as HCF's Chief Marketing Officer. 5.

CICCONE has only personally conducted two meetings with any HCF or NEV

personnel regarding HCF operations since November 24, 2010, the first being a 45 minute phone call, and the second a 90 minute meeting in New York, New York. /// /// /// /// /// /// /// /// /// /// /// /// ///

4 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

DECLARATION OF SARA ZAMBRANO IN SUPPORT OF MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-3 Entered on FLSD Docket 07/02/2014 Page 5 of 5

Case 1:13-cv-23705-CMA Document 109-4 Entered on FLSD Docket 07/02/2014 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No.: 1:13-cv-23705-ALTONAGA HARD CANDY, LLC, A Florida limited liability company, Plaintiff, v. HARD CANDY FITNESS, LLC, a Delaware company, NEW EVOLUTION VENTURES, LLC, a Delaware company, Defendants.

HARD CANDY FITNESS, LLC, a Delaware company, Counterclaimant, v. HARD CANDY FITNESS, LLC, a Delaware company, NEW EVOLUTION VENTURES, LLC, a Delaware company, MGHCANDY, LLC, a Delaware company, GUY OSEARY, an individual, and MADONNA LOUISE CICCONE, an individual, Counterdefendants.

[PROPOSED] ORDER GRANTING SPECIALLY APPEARING DEFENDANTS MGHCANDY, LLC'S, GUY OSEARY'S, AND MADONNA LOUISE CICCONE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR IN THE ALTERNATIVE TO TRANSFER TO NORTHERN (OR CENTRAL) DISTRICT OF CALIFORNIA

1 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

[PROPOSED] ORDER GRANTING NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-4 Entered on FLSD Docket 07/02/2014 Page 2 of 3

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Defendants’ Specially Appearing Defendants MGHCandy, LLC's, Guy Oseary's, and Madonna Louise Ciccone's (the “New Defendants”) Motion to Dismiss for Lack of Personal Jurisdiction, or In The Alternative to Transfer to the Northern (or Central) District of California (the “New Defendants' Motion to Dismiss”) came before this Court and the Court, having considered the New Defendants' Motion to Dismiss together with all papers on file, finds that for the reasons set forth in the New Defendants' Motion to Dismiss this Court may not exercise personal jurisdiction over either MGHCandy, LLC, Guy Oseary, or Madonna Louise Ciccone. Thus, the Court Grants the New Defendants' Motion to Dismiss, and hereby dismisses the New Defendants from this action without prejudice to refile against them in an appropriate District Court.

IT IS SO ORDERED _____________________________________ The Honorable Cecilia Altonaga

2 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

[PROPOSED] ORDER GRANTING NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER

Case 1:13-cv-23705-CMA Document 109-4 Entered on FLSD Docket 07/02/2014 Page 3 of 3

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the counsel of record on the service list who are deemed to have consented to electronic service are being served this 12th day of November, 2013 with a true and correct copy of the foregoing [PROPOSED] ORDER GRANTING SPECIALLY APPEARING DEFENDANTS MGHCANDY, LLC'S, GUY OSEARY'S, AND MADONNA LOUISE CICCONE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR IN THE ALTERNATIVE TO TRANSFER TO NORTHERN (OR CENTRAL) DISTRICT OF CALIFORNIA via the Court’s CM/ECF system.

____________________________________

3 Rubinstein Law | 660 4th Street #302, San Francisco, California 94017 | (415) 967-1970 | www.rublaw.com

[PROPOSED] ORDER GRANTING NEW DEFENDANTS' MOTION TO DISMISS OR TRANSFER