UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

BROWARD DIVISION

 

In re:

SEVEN STARS ON THE HUDSON

CORPORATION, d/b/a ROCKIN’ JUMP Case No19-17544 - RBR

Chapter 11

Debtor,

____________________________________/

SEVEN STARS ON THE HUDSON Adversary Proceeding

CORPORATION, d/b/a ROCKIN’ JUMP, No. 19-01230-RBR

 Plaintiff

v.

MDG POWERLINE HOLDINGS, LLC

AND XBK MANAGEMENT LLC,

d/b/a XTREME ACTION PARK,

Defendants.

___________________________________

DEBTOR’S RESPONSE TO XBK’S NOTICE OF MOTION 

FOR JOINDER IN MDG’S MOTION TO DISMISS

The Plaintiff-Debtor, Seven Stars On The Hudson Corporation, d/b/a Rockin’ Jump 

(“Debtor” or “Plaintiff”) hereby submits this response to the Joinder of XBK Management LLC, 

d/b/a Xtreme Action Park (“Xtreme”), filed on October 4, 2019 and hereby states:

1) On October 4, 2019, Xtreme filed its Joinder Motion giving notice that “it join[ed] 

and adopt[ed] the arguments and grounds raised by Defendant MDG Powerline Holdings, LLC”

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(“Landlord” or MDG Powerline) in the Landlord’s Motion to Dismiss Adversary Motion, dated

October 4, 2019 (DE #16) (“Landlord Motion” or “Motion”).

2) When the Landlord in its Motion stated that “Plaintiff’s claims against MDG 

Powerline are based entirely on the false premise that Xtreme Action Park was an agent of MDG 

Powerline, such that the alleged conduct of Xtreme is somehow attributable to MDG Powerline”, 

Xtreme concurred with this statement by its Joinder Application and has specifically adopted as 

its own the position that it has never represented to Plaintiff that it was Landlord’s agent without 

the Landlord’s knowledge. 

3) When the Landlord in its Motion argued that there could not have been a breach by 

it of the Covenant of Quiet Enjoyment because the Landlord “shall not be liable for any 

interference or disturbance by other tenants or third persons”, Xtreme concurred with this 

statement by its Joinder Application and has specifically adopted as its own statement that its 

relationship with the Landlord is solely that of a tenant.

4) Plaintiff has alleged, based on various communications (or lack thereof), that 

Xtreme acted as an agent for the Landlord. With Xtreme now adopting the statements of the 

Landlord to the effect that there was no agency relationship and that this is a “false premise”, 

Plaintiff is compelled to illustrate that the allegations in the pleading are accurate and lend further 

support to the Complaint.

5) First, Xtreme not only acted as the agent of the Landlord, but the Landlord 

authorized and did not disavow Xtreme’s representations to Plaintiff that Xtreme was its 

authorized agent (at least as to certain things). For example, Xtreme’s general manager in an email 

to Plaintiff’s owner dated January 18, 2018, stated that it had the right to obtain Plaintiff’s 

financials as it was the Landlord’s “proxy”. Significantly, the Landlord’s representatives who 

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were copied on this email (including its outside counsel) did nothing to disavow this representation

to Plaintiff. See id. In another email dated August 17, 2018, Xtreme’s general manager stated 

that it “[spoke] with the full authority of the [L]andlord and the lease”. The Landlord’s 

representatives, including its outside counsel who were copied on this email, similarly did nothing 

to disavow this statement to Plaintiff. See Email annexed as Exhibit 14. This is consistent with 

the allegations in the Complaint alleging that Xtreme acted in concert with the Landlord and with 

the description of Xtreme in the Lease as a “Landlord Entity”. Complaint, Exh. 1, Art. 8.

6) Second, MDG Powerline’s attorney also directed Plaintiff to remove its front 

registration desk because “Xtreme . . . will be reconstructing its front desk area”. In ordering 

Plaintiff to remove the desk, MDG Powerline cited to section 3(h)(c) of the Second Amendment 

to the Lease1 which Provides as follows:

In the event that Landlord reconstructs and/or expands the front 

desk area outside the lease Premises within the building and said 

reconstruction provides sufficient room for Tenant to place the 

registration area within the same, the parties agree that Tenant shall 

be permitted to perform its registration activities, subject to the 

terms and conditions set forth by Landlord, in the above mentioned 

reconstructed and expanded front desk area. (Emphasis Added).

The letters from MDG Powerline’s attorney to Plaintiff are annexed hereto collectively as Exhibit

15 (emphasis added).

7) If Xtreme were simply another tenant, the provision cited above by MDG 

Powerline’s attorney would have no application. However, its citation to the Second Amendment 

to the Lease as applying to Xtreme’s construction certainly shows that Xtreme was treated by the 

Landlord as its agent or a Landlord Entity and that it was the Landlord that was holding out Xtreme 

1 This is annexed as Exhibit 2 to the Adversary Complaint.

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as its agent for purposes of forcing Plaintiff to remove its satellite desk. Plaintiff offers this as an 

illustration of Xtreme’s relationship to the Landlord.

8) The Plaintiff responded to these letters that are annexed collectively as Exhibit 15

and attached its response to the Complaint. (see Exh. 11 attached to the Complaint which responds 

to the Landlord’s allegations contained in the July 31st letter from the Landlord, which in turn 

references the June 1, 2018 letter from the Landlord). In its complaint, the Plaintiff referred to 

these letters from the Landlord as “contrived complaints”. Complaint ¶ 63.

9) In addition, there are several allegations in the Complaint which state that Xtreme 

acted as the Landlord’s agent on multiple occasions. See, e.g., Complaint, ¶¶ 29, 34, 42. It is 

certainly a key part of the Landlord’s Motion to Dismiss. See, e.g., Landlord’s Motion, section I; 

see also D.E. #16 (Xtreme’s Joinder Application fully adopting arguments in Landlord’s Motion).

10) On a motion to dismiss, this Court is permitted to examine the documents which 

are attached here as it relates to the Landlord’s Motion to Dismiss as well as Xtreme’s Joinder 

Application without converting the motion to one for summary judgment. Such documents can be 

submitted for the purpose of elaborating on the allegations in the pleading and for illustrative 

purposes only. See Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir., 2012)(“[i]n the turmoil 

concerning civil pleading standards stirred up by Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 

173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 

L.Ed.2d 929 (2007), a plaintiff who is opposing a Rule 12(b)(6) or Rule 12(c) motion and who 

can provide such illustration may find it prudent to do so . . . [and] [i]t may also be prudent to 

explain to the district court that the materials are being submitted for illustrative purposes and 

should not be used to convert the motion into a Rule 56 motion for summary judgment.)); see also 

SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir.2010) (“[t]his Court, 

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. . . has recognized an important qualification to [Rule 12(b)(6)] where certain documents and 

their contents are undisputed: “In ruling upon a motion to dismiss, the district court may consider 

an extrinsic document if it is (1) central to the plaintiff's claim, and (2) its authenticity is not 

challenged”). 

11) It is important that these arguments be considered in connection with the Landlord’s

Motion and Xtreme’s Joinder Application. To not do so, would allow the statement by the 

Landlord and the adoption of same by Xtreme to the effect that Plaintiff’s claims are “based 

entirely on the false premise that Xtreme . . . was an agent of MDG Powerline” to stand in light 

of Plaintiff’s allegations and of agency. Agency is one of the key parts of Plaintiff’s claim that 

has been specifically alleged in the Complaint, and these documents show that “there is likely to 

be some evidentiary weight behind the pleadings the court must evaluate”. Geinosky, 675 F.3d at 

751 (internal citation and quotation marks omitted). 

WHEREFORE, Plaintiff respectfully requests that this submission be considered as a part 

of its opposition to the Landlord’s Motion to Dismiss and Xtreme’s recently filed Joinder 

Application.

Dated: October 11, 2019

Respectfully submitted 

LAW OFFICE OF KATHLEEN A. DALY, P.A.

/s/ Kathleen A. Daly

By: Kathleen A. Daly

515 N. Flagler Dr., Ste. P300

West Palm Beach, FL 33401

(561) 293-8514

kdaly@kadalylaw.com

Attorney for the Plaintiff

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