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I Love Omni LLC v. Omnitrition International Inc.

United States District Court, N.D. Texas, Dallas Division

April 6, 2017

I LOVE OMNI, LLC, ET AL., Plaintiffs,
v.
OMNITRITION INTERNATIONAL, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          A. JOE FISH Senior United States District Judge

         Before the court is the motion of the third-party defendants, Terry LaCore (“LaCore”) and Jennifer Grace (“Grace”), to dismiss the claims brought against them by the defendant and the counter-plaintiff, Omnitrition International, Inc. (“Omnitrition”), pursuant to Fed.R.Civ.P. 12(b)(6), or alternatively for a more definite statement pursuant to Rule 12(e) (docket entry 23). For the reasons stated below, the motion is granted in part and denied in part.

         I. BACKGROUND

         A. Factual Background

         On November 23, 2016, Omnitrition filed a counterclaim against the plaintiff and counter-defendant, Heidi Whitehair (“Whitehair”), and added various third- party defendants, including Grace and LaCore. Counterclaim Against Whitehair and Third-Party Complaint (“Counterclaim”) (docket entry 13). Omnitrition alleges two claims against LaCore and Grace: (1) conspiracy and (2) aiding and abetting. See Counterclaim at 12. The court provided an overview of Omnitrition and its business practices in a recent memorandum opinion and order. See Memorandum Opinion and Order of March 17, 2017 at 2-3 (docket entry 26). Accordingly, only the facts relevant to Omnitrition's claims against Grace and LaCore are discussed here.

         In 1999, Whitehair entered into both a distributorship agreement and a non-compete agreement (“NCA”) with Omnitrition while working as a distributor and an independent marketing associate (“IMA”). Counterclaim ¶¶ 10-11. Whitehair agreed not to compete for two months after the termination of her status as an IMA and:

for a period of one (1) year from termination of Distributor's status as an Omnitrition IMA, the Distributor will not, directly or indirectly (i.e., through its agents, employee, partners, spouse, or dependents), solicit, recruit, contact, or otherwise attempt to do business with, individuals who were customers or IMA's of Omnitrition as of the date of the termination, for any reason, of the Distributor's status as an Omnitrition Distributor IMA.

Id. ¶ 11.

         Omnitrition alleges that Whitehair sought to violate the NCA and conspired to “leave Omnitrition and raid Omnitrition customers and IMAs.” Id. ¶ 12. In 2014, Whitehair organized an entity named Innov8U, LLC. Id. Later, Whitehair began working with former Omnitrition distributor, James Tackett (“Tackett”), to create a “blind ad” to recruit individuals to work for Whitehair's new venture. See id. ¶¶ 13, 19. In the spring of 2016, Whitehair made disparaging comments about Omnitrition to other IMAs such as “Omnitrition is going under” or that the IMA should stop sponsoring for Omnitrition. Id. ¶¶ 21-23.

         On August 6, 2016, Whitehair's distributorship with Omnitrition was terminated. Id. ¶ 25. On August 9, 2016, Whitehair formed a new business, Innov8tive Nutrition, Inc. (“Innov8tive”). Id. ¶ 26. Both Grace and LaCore are directors of Innov8tive and Tackett is a promoter. Id. Innov8tive sells nutritional products, which are “knockoffs and compete with Omnitrition's products.” Id. ¶ 29. Innov8tive's products are supplied by LaCore Labs, LLC, an entity for which Grace serves as secretary and LaCore as director. Id.

         To grow her new business, Whitehair has continued to solicit Omnitrition's customers and IMAs. See id. ¶ 27. For example, Whitehair announced to Omnitrition's IMAs that she was having a launch party and a ten-city national tour in October 2016. Id. ¶¶ 27-28. On August 22, 2016, Omnitrition sent a cease and desist letter requesting that Whitehair cease contacting Omnitrition customers and IMAs as required by the NCA. Id. ¶ 30. Whitehair has failed to comply. Id.

         B. Procedural Background

         On November 23, 2016, Omnitrition filed a counterclaim against various defendants including LaCore and Grace. See Counterclaim. On February 14, 2017, Grace and LaCore filed the instant motion to dismiss or alternatively for a more definite statement. Motion to Dismiss Counterclaim or Alternatively Motion for a More Definite Statement (docket entry 23). On March 7, 2017, Omnitrition filed a response. Response and ...


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