Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Sims

United States District Court, E.D. Texas, Sherman Division

November 14, 2017

UNITED STATES OF AMERICA
v.
BILLY R SIMS, BS20, INC., and LEGENDARY Q BRANDS, LLC

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant Legendary Q Brands, LLC's Special Appearance and Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) (Dkt. #9). After reviewing the relevant pleadings, the Court finds that the motion to dismiss under Rule 12(b)(2) should be granted.

         BACKGROUND

         Plaintiff brought this suit seeking to reduce to judgment the outstanding federal tax liabilities assessed against Defendant Billy R. Sims (“Sims”) and enforce the federal tax liens and obtain remedies under 28 U.S.C. § 3001 et seq., upon certain real and personal property, including certain contracts held by Sims' holding company, BS20, Inc. (“BS20”) and contracts with Legendary Q Brands, LLC (“Legendary”). Sims is a resident of Lewisville, Texas. He is a former American college and professional football player. BS20 is an S-Corporation, incorporated in 2011 under the laws of Oklahoma. Sims is the 100% shareholder of BS20.

         Legendary is an Oklahoma limited liability company, with its principal place of business in Tulsa, Oklahoma. The sole member of Legendary is Jeff Jackson, who is a resident of Oklahoma. Legendary is the owner and franchisor of Billy Sims BBQ restaurants (Dkt. #1 at p. 5).

         The primary business of Legendary is the operation and management of Billy Sims BBQ restaurants throughout the States of Oklahoma, Kansas, Iowa, Missouri, and Colorado.

         Plaintiff alleges that in 2009, 2010, and partially in 2011, Legendary paid Sims a salary, contract payments, royalties, appearance fees, franchise fees and/or profits interest directly to Sims to use Sims' name, nicknames, image, voice, likeness, personality, history and memorabilia (collectively “publicity rights”) in order to market the Billy Sims BBQ restaurants (Dkt. #1 at p. 5). On May 13, 2011, Sims signed a Consent to Register the names Billy Philly, Billy Burger, Billy Dog and Billy Chili with the United States Patent and Trademark Offices for Legendary. (Dtk. #9, Exhibit 2 at p. 22)

         In October 2012, Legendary executed an Operating and Licensing Agreement (“Licensing Agreement”) with BS20 to continue to use those same publicity rights to market the Billy Sims BBQ restaurants (Dkt. #9, Exhibit 2). The Licensing Agreement was executed in Oklahoma and is governed by Oklahoma law. Id. The Licensing Agreement between BS20 and Legendary was executed prior to the foreclosure of the federal tax liens against Defendant Sims (Dkt. #1 at ¶¶ 13-15).

         In 2013, Legendary entered into a franchise agreement with Quality Brands, LLC (“Quality Brands”), to open a Billy Sims BBQ franchise restaurant (Dkt. #21 at p. 2). Quality Brands is a limited liability company organized under the laws of Oklahoma and the franchise agreement between Legendary and Quality Brands is governed by Oklahoma law (Dkt. #21, Exhibit 3). Quality Brands selected Texarkana, Texas, as the location for its franchise store, which Legendary approved under the terms of the franchise agreement (Dkt. #23 at p. 2). Quality Brands leased the premises located at 3747 Mall Lane, Texarkana, Texas, and opened its Billy Sims BBQ restaurant.

         In 2014, Quality Brands transferred its franchisee interest in the Texarkana restaurant to David and Melanie Price, as owner of Blue Ribbon BBQ, LLC (Dkt. #21, Exhibit 3; Dtk. #23 at p. 2). As part of this asset purchase, Blue Ribbon BBQ, LLC, took over the lease agreement for the Texarkana restaurant and oversaw the operations of the Texarkana restaurant.

         The Texarkana restaurant was the only Billy Sims BBQ franchise restaurant located in the State of Texas. In May 2015, the Texarkana restaurant permanently closed. There have been no other Billy Sims franchise restaurants located in Texas since.

         Plaintiff alleges Sims has outstanding federal income tax liabilities for the 2001, 2004-2011, and 2014 tax years. On July 13, 2017, Plaintiff filed this suit to reduce to judgment and collect the outstanding tax assessments against Sims (Dkt. #1). Plaintiff also seeks to enforce the federal tax liens upon Sims' property, including Sims' rights to payments owed from Legendary and any rights Legendary obtained from Sims and BS20 to use Sims' personal assets. Thus, because Legendary has an interest in Sims' assets, Plaintiff named Legendary as a defendant.

         On August 3, 2017, Legendary filed its motion to dismiss for lack of personal jurisdiction and for failure to state a claim. (Dtk. #9). Plaintiff filed its response on August 17, 2017 (Dkt. #17). On August 24, 2017, Legendary filed its reply (Dtk. #21). Plaintiff filed its sur-reply on August 31, 2017 (Dkt. #23).

         LEGAL ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.