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Green Ice Technology, LLC v. Ice Cold 2, LLC

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

May 17, 2018

GREEN ICE TECHNOLOGY, LLC,
v.
ICE COLD 2, LLC, ECOCOOL TECHNOLOGIES, LLC, ECOCOOL TECHNOLOGIES MANAGEMENT, LLC, ECOCOOL WORLD, LLC, ECOCOOL ENTERPRISES, LLC, SEARCH RESULTS MEDIA, BHAVESH PATEL, PETER J. LEWIS, DONALD A. BRYAN, RAKESH DESAI, WAYNE RAGAN, JAMEY MCDANIEL, and PATRICK MORGAN

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Pending before the Court is the Motion to Dismiss of Defendants EcoCool Enterprises, LLC, Wayne Ragan, Jamey McDaniel and Patrick Morgan[1] (Dkt. #65). After reviewing the relevant pleadings, the Court finds that the motion should be denied.

         BACKGROUND

         This is a case about commercial interference. David R. Pickett (“Pickett”)-CEO of U.S. Refrigeration Technologies (“USRT”)-invented IceCOLD: a chemical that improves the performance and efficiency of air conditioning and refrigeration systems. Pickett sells IceCOLD through a network of licensed distributors to customers spanning the air conditioning industry.

         Green Ice Technology, LLC (“GIT”) was founded in 2009. Since then, GIT-first as a sub-distributor from 2009 to 2012 and then as a distributor from 2013 onward-built a relationship with Pickett and a distribution channel for IceCOLD. GIT planned to market IceCOLD globally through a network of sub-distributors in over twenty countries around the world.

         In 2013, GIT entered an Independent Distributor Direct-Buy Distribution Agreement with USRT (the “GIT Distributor Agreement”). With this agreement, GIT became a master distributor of IceCOLD. Per the GIT Distributor Agreement, GIT could submit a “Protect List” to Pickett, identifying exclusive and prospective customers. The Protect List intended to bar encroachment on GIT's customers and prospective customers by other IceCOLD distributors and sub-distributors. Under the GIT Distributor Agreement, USRT agreed not to circumvent GIT's “own Distributors, ISRs, salesmen and customers” and not to “sell directly to [GIT's own Distributors, ISRs, salesmen and customers] unless [GIT] has abandoned them.” (Dkt. #5 at pp. 8-9.)

         On June 6, 2014, IceCOLD 2, LLC (“Ice Cold 2”) and USRT entered into a Management Agreement whereby Ice Cold 2 would manage some of USRT's distributors of IceCOLD. The Management Agreement listed GIT as a “retained distributor” of USRT (Dkt. #5 at p. 9). As a retained distributor, GIT had to buy IceCOLD exclusively from USRT and kept all of its rights as a distributor. Such rights included GIT's privilege under the GIT Distributor Agreement to name its customers and potential customers in order to protect them from encroachment from other IceCOLD distributors and sub-distributors. Per the Management Agreement, Ice Cold 2 had to “comply with all distributor agreements between USRT and its distributors.” (Dkt. #5 at p. 10).

         Thereafter, GIT alleges that Ice Cold 2 contacted, interfered with, marketed to, and attempted to sell directly to GIT's contacts, lead generators, and sub-distributors. GIT claims that Ice Cold 2 neither complied with nor honored GIT's Protect List and letters identifying exclusive customers. GIT avers that Ice Cold 2 told GIT's contacts, lead generators, and sub-distributors that GIT had no valid distribution agreement. GIT alleges that Defendants knew that their actions were “‘certain or substantially certain' to interfere with the imminent prospective contracts with [GIT's] major customers, such as Amazon, CBRE, HEB Supermarkets, Dwyer Group/Aire Serv, and AT&T, just to name a few.” (Dkt. #5 at p. 22.)

         GIT also claims that Ice Cold 2 hacked GIT's website, www.greenicetech.com, to re-direct online customers to www.icecoldenergysolutions.com and then to www.icecold2.com (Dkt. #5 at p. 13). GIT alleges that the owners of the website www.icecoldenergysolutions.com and www.icecold2.com are Pickett, EcoCool Technologies, LLC, and EcoCool World LLC. GIT further avers that Bhavesh Patel, Peter J. Lewis, Donald A. Bryan, and Rakesh Desai are the officers and directors of Ice Cold 2 and EcoCool World (Dkt. #5 at pp. 13-14).

         On June 9, 2017, GIT filed its First Amended Complaint against Defendants, asserting claims for tortious interference with contract, tortious inference with prospective contracts and business relations, civil conspiracy, fraud, unfair competition by misappropriation, intrusion and unauthorized access to computer network, planting a malicious code/malware in a computer, and theft (Dkt. #5 at pp. 19-33). On November 3, 2017, the ECE Defendants filed their Motion to Dismiss, seeking dismissal for lack of subject matter jurisdiction on the basis of diversity, lack of personal jurisdiction, and failure to state a claim (Dkt. #65). On November 17, 2017, GIT filed Plaintiff's Response to Defendants EcoCool Enterprises, LLC, Wayne Ragan, Jamie (Jamey) McDaniel, and Patrick Morgan's Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (Dkt. #74). On November 22, 2017, the ECE Defendants filed their Reply Brief in Support of Motion to Dismiss of Defendants EcoCool Enterprises, LLC, Wayne Ragan, Jamey McDaniel and Patrick Morgan (Dkt. #75). On April 2, 2018, the Court held a hearing, regarding the Motion to Dismiss of Defendants EcoCool Enterprises, LLC, Wayne Ragan, Jamey McDaniel and Patrick Morgan (Dkt. #65). On April 13, 2018, the ECE Defendants filed their Supplemental Brief in Support of Motion to Dismiss of Defendants EcoCool Enterprises, LLC, Wayne Ragan, Jamey McDaniel and Patrick Morgan, withdrawing the portion of their motion to dismiss, concerning lack of subject matter jurisdiction on the basis of diversity (Dkt. #85).

         LEGAL STANDARD

         Rule 12(b)(2)

         Federal Rule of Civil Procedure 12(b)(2) requires a court to dismiss a claim if the court does not have personal jurisdiction over the defendant. Fed.R.Civ.P. 12(b)(2). After a non-resident defendant files a motion to dismiss for lack of personal jurisdiction, it is the plaintiff's burden to establish that in personam jurisdiction exists. Bullion v. Gillespie, 895 F.2d 213, 217 (5th Cir. 1990) (citing WNS, Inc. v. Farrow, 884 F.2d 200, 202 (5th Cir. 1989)).

         To satisfy that burden, the party seeking to invoke the court's jurisdiction must “present sufficient facts as to make out only a prima facie case supporting jurisdiction, ” if a court rules on a motion without an evidentiary hearing. Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000). When considering the motion to dismiss, “[a]llegations in [a] plaintiff's complaint are taken as true except to the extent that they are contradicted by defendant's affidavits.” Int'l Truck & Engine Corp. v. Quintana, 259 F.Supp.2d 553, 557 (N.D. Tex. 2003) (citing Wyatt v. Kaplan, 686 F.2d 276, 282-83 n.13 (5th Cir. 1982)); accord Black v. Acme Mkts., Inc., 564 F.2d 681, 683 n.3 (5th Cir. 1977). Further, “[a]ny genuine, material conflicts between the facts established by the parties' affidavits and other evidence are resolved in favor of plaintiff for the purposes of determining whether a prima facie case exists.” Id. (citing Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 161, 1067 (5th Cir. 1992)). However, if a court holds an evidentiary hearing, a ...


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