Motion for Appearance and Examination in REMVER, LLC vs. AMSOIL INC., et al| Trellis.Law

On August 07, 2020 a Party Notice was filed involving a dispute between Remver, Llc, and Amsoil Inc., Brooks, Brian, Cowan, Patrick, Tsg Trinity Security Group Llc, Tubaiste, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

Preview
FILED
10/8/2020 3:07 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jeremy Jones DEPUTY

CAUSE NO. DC-20- 1 08 1 9
REMVER, LLC §
§
Plaintiff, §
§ IN THE DISTRICT COURT
V. §
§ 298TH JUDICLAL DISTRICT
AMSOIL INC., BRIAN BROOKS, AND §
PATRICK COWAN § DALLAS COUNTY, TEXAS
§
Defendants. §
§

NOTICE OF SPECIAL APPEARANCE

TO THE HONORABLE JUDGE OF THIS COURT:

Defendant AMSOIL INC. (“AMOIL” 0r “the Defendant”) makes its ﬁrst appearance, and

any subsequent appearance necessary for its motion t0 stay ﬁled concurrently herewith, pursuant

to TEXAS RULE OF CIVIL PROCEDURE 120a. This is a special appearance for the purposes 0f

bringing before this Court the Defendant’s Motion t0 Stay Under the Doctrine 0f Comity for

Prior Action Pending.

DEFENDANT AMSOIL INC.’S MOTION TO DISMISS OR STAY UNDER THE
DOCTRINE OF COMITY FOR PRIOR ACTION PENDING IN THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

AND
DEFENDANT AMSOIL INC.’S ORIGINAL ANSWER SUBJECT TO MOTION TO
DISMISS OR STAY UNDER THE DOCTRINE OF COMITY FOR PIROR ACTION
PENDING IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF WISCONSIN

Defendant AMSOIL INC. ﬁles this Motion t0 Dismiss 0r Stay Under the Doctrine 0f

Comity for Prior Action Pending in the United States District Court for the Western District 0f
Wisconsin, verified and supported by the separately-filed Declarations of Brian J. Brooks,

Patrick J. Cowan and Alan M. Anderson (with exhibits), and shows as follows:

MOTION TO DISMISS OR STAY UNDER THE DOCTRINE OF COMITY FOR PRIOR
ACTION PENDING IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WISCONSIN

This Court should dismiss or stay this action under the doctrine of comity because there

is a prior action pending between AMSOIL and Plaintiff Remver, LLC (“Remver”) in the United

States District Court for the Western District of Wisconsin. AMSOIL first commenced an action

against Remver in the State of Wisconsin on June 30, 2020 (“Wisconsin Action”). In an obvious

attempt at forum-shopping, Remver commenced this action in this Court thirty-seven (37) days

later. Five days thereafter, Remver removed the Wisconsin Action to the United States District

Court for the Western District of Wisconsin, where it remains pending. Remver’s later

commencement of this action is subject to the well-recognized doctrine of comity between State

and Federal courts. This Court should not usurp or interfere with the established jurisdiction of

the United States District Court for the Western District of Wisconsin. This action should be

dismissed or stayed pending final resolution of the Wisconsin Action.

DEFENDANT AMSOIL INC.’S MEMORANDUM IN SUPPORT OF ITS MOTION TO
DISMISS OR STAY UNDER THE DOCTRINE OF COMITY FOR PRIOR ACTION
PENDING

This Memorandum is submitted on behalf of Defendant AMSOIL INC. (“AMSOIL”) in

support of its motion to dismiss or stay this action under the doctrine of comity because of the

pendency of a prior action against Plaintiff Remver, LLC (“Remver”) in the United States

District Court for the Western District of Wisconsin (“Wisconsin Action”). AMSOIL first filed

an action against Remver in state court in Wisconsin on June 30, 2020. More than a month later,

Remver commenced this action, despite the pendency of the Wisconsin Action. Five days later, it

AMSOIL Motion to Dismiss or Stay Page 2 of 16
Original Answer Subject to Motion to Dismiss or Stay
removed the Wisconsin Action t0 the United States District Court for the Western District 0f

Wisconsin, where it remains pending. This Court should adhere t0 the doctrine 0f comity and

dismiss 0r stay this action in favor 0f the pending Wisconsin Action. Denial of AMSOIL’S

motion would waste judicial resources and efﬁciency, create delays, and harm the orderly

procedure toward trial 0f contested issues.

STATEMENT OF FACTS

1. Remver is a Texas limited liability company with its ofﬁces located somewhere in

Texas. See Original Petition (“Petition”), 112.

2. Brooks is an individual who resides in Frisco, Texas. See Petition, 1T4; Declaration

0f Brian J. Brooks, dated October 7, 2020 (“Brooks Decl.”), 1H.

3. Cowan is an individual who resides in Wausau, Wisconsin. See Petition, 1E;

Declaration 0f Patrick N. Cowan, dated October 7, 2020 (“Cowan Decl.”), 1H.

4. AMSOIL is a Delaware corporation with its ofﬁces located in Superior,

Wisconsin. AMSOIL is a leading developer, manufacturer and supplier 0f premium synthetic

lubricants. See Petition, ﬂs 3, 14.

5. In late 2019, AMSOIL decided t0 retain an IT consulting ﬁrm t0 assist in the

development 0f a business continuity management system and cyber security systems (“IT

Project”) for its operations in Superior, Wisconsin. See id., ﬂlS. See generally id., EX. B.

6. On December 12, 2019, AMSOIL and Remver electronically signed a Mutual

Non-Disclosure and Conﬁdentiality Agreement (“NDA”). See id., 1H6 & EX. A.
7. Paragraph 4(h) 0f the NDA states in full:
This Agreement shall be construed and controlled by the laws 0f the [sic] Texas,
and both parties further consent t0 jurisdiction by the state and federal courts
sitting in Texas.

AMSOIL Motion t0 Dismiss 0r Stay Page 3 0f 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
Id., EX. A, ﬂ4(h). This is a permissive venue selection clause; it does not provide for an exclusive

venue 0r jurisdiction.

8. Paragraph 4(0) 0f the NDA is an employee non-solicitation provision that, in part,
prohibits a party that received conﬁdential information 0f the other party (as deﬁned in the

NDA) from initiating “contact with the disclosing party’s employees in order t0 solicit, entice 0r

induce any employee 0f the disclosing [sic] t0 terminate an employment relationship with the

”
disclosing party in order t0 accept employment wit the other party. Id., EX. A, ﬂ4(c) (emphasis

added).

9. On December 19, 2019, AMSOIL and Remver executed a Professional Services

Agreement (“PSA”), pursuant t0 which Remver agreed t0 perform certain services relating t0 the

IT Project. See id., 1H6 & EX. B. The PSA does n_0t include a non-solicitation clause. See
generally id., EX. B.

10. Paragraph 22 0f the PSA states in relevant part:

The parties acknowledge and consent t0 the exclusivejurisdiction 0f, and venue
in, the courts 0f the State 0f Texas in Dallas County, and the United States

District Court for the Northern District 0f Texas, with such courts being the
exclusivejurisdiction for all disputes that relate t0, 0r arise from, this Agreement.

Id., EX. B, ﬂ22 (emphasis added). This is a mandatory, exclusive jurisdiction clause.

11. Neither Remver nor any employee 0f Remver provided any 0f the IT Proj ect

services required under the PSA. Rather, Remver subcontracted the IT Proj ect services required

under the PSA t0 independent contractors, including Messrs. Brooks and Cowan. See Brooks

Decl., ﬂs 11-12; Cowan Decl., ﬂs 11-12.

12. On 0r about January 12, 2020, Remver entered into identical Independent

Contractor Agreements (“ICAS”) with Brooks and Cowan. See id., 1&2 & EXS. C & E; Brooks
Decl., 1Q; Cowan Decl., 1Q.

AMSOIL Motion t0 Dismiss 0r Stay Page 4 0f 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
13. On page 11 of the ICAs, the “Choice of Law” paragraph states in relevant part,

“Jurisdiction and venue for any claim arising out of this Agreement shall be made in the State of

Texas, in the County of Tarrant.” Petition, Exs. C & E (emphasis added); Brooks Decl., ¶3;

Cowan Decl., ¶3. This is a mandatory, exclusive jurisdiction clause.

14. Neither Brooks nor Cowan have ever waived, nor do either of them waive, the

exclusive choice of venue provision in the ICAs, requiring that any action “arising out of” the

ICA “shall” be filed in “the State of Texas, in the County of Tarrant.” Neither Brooks nor Cowan

consent to this action in Dallas County, Texas. Brooks Decl., ¶8; Cowan Decl., ¶8.

15. Remver’s Original Petition arises out of the ICAs and the alleged breach of those

contracts by Brooks and Cowan and the alleged tortious interference with those contracts by

AMSOIL. See Petition, ¶s 22, 35-38, 48-59.

16. Also on page 11 of the ICAs, the “Mediation, Litigation & Arbitration” paragraph

states in part:

If a dispute arises out of or relates to this Agreement, or the alleged breach
thereof, and if the dispute is not settled through negotiation, the Parties agree first
to try in good faith to settle the dispute through mediation. The mediation process
shall be administered by Texas Mediation Services, or another administrator
mutually agreed between the Parties, and shall be a condition precedent to
resorting to arbitration, litigation, or some other dispute resolution procedure. If
the mediation process is unsuccessful, either Party shall have the option of
seeking either arbitration or filing a legal action in a court of competent
jurisdiction.

Petition, Exs. C & E (emphasis added). See Brooks Decl., ¶4; Cowan Decl., ¶4.

17. Remver, Brooks and Cowan have never engaged in any mediation proceeding,

administered by the Texas Mediation Services or otherwise. Remver has never proposed or

suggested to Brooks and Cowan that they engage in mediation prior to filing its Original Petition

in this Court. See Brooks Decl., ¶s 5-6; Cowan Decl., ¶s 5-6.

AMSOIL Motion to Dismiss or Stay Page 5 of 16
Original Answer Subject to Motion to Dismiss or Stay
18. Remver was aware of the condition precedent contained in the ICAs, but still filed

the Petition without complying with that condition precedent. See Petition, Ex. M; Brooks Decl.,

¶5; Cowan Decl., ¶5.

19. Neither Brooks nor Cowan have ever waived, nor do either of them waive, the

contractual agreement to engage in mediation prior to the commencement of any dispute

resolution proceeding as contained in the ICAs. Brooks Decl., ¶7; Cowan Decl. ¶7.

20. On January 12 and 31, 2020, Brooks and Cowan, respectively, each electronically

signed an otherwise identical Confidentiality Agreement (“CA”) with Remver. See Petition, ¶22

& Exs. D & F; Brooks Decl., ¶9; Cowan Decl., ¶9.

21. Paragraph VI of the CA, headed “General Provisions,” states in part, “In the event

of a dispute hereunder, each party irrevocably and unconditionally consents to the jurisdiction of

any such proceeding in Dallas County, Texas, and the United States District Court for the

Northern District of Texas, without giving effect to any choice or conflict of law provision or

rule; and waives any objection that it may have to personal jurisdiction therein.” Petition, Exs. D

& F; Brooks Decl., ¶10; Cowan Decl., ¶10.

22. Neither Brooks nor Cowan have ever been employed by Remver or acted as an

employee of Remver. Brooks Decl., ¶11; Cowan Decl., ¶11.

23. Remver admits it engaged Brooks and Cowan to work as independent contractors

and required them to execute independent contractor agreements. Petition, ¶22.

24. Brooks and Cowan worked as independent contractors for Remver on the IT

Project for AMSOIL beginning in early 2020. Brooks Decl., ¶12; Cowan Decl., ¶12.

25. As a result of the global COVID-19 pandemic, in the latter half of March 2020

AMSOIL decided to terminate the IT consulting project with Remver. On March 24, 2020,

AMSOIL Motion to Dismiss or Stay Page 6 of 16
Original Answer Subject to Motion to Dismiss or Stay
Remver told Brooks and Cowan to immediately cease all work on the project with AMSOIL.

Brooks Decl., ¶13; Cowan Decl., ¶13. See Petition, Ex. L.

26. AMSOIL asked Brooks and Cowan if they were interested in performing IT

services for AMSOIL on an hourly basis. As self-employed independent contractors, they each

expressed an interest. Neither of them ever solicited any additional consulting work from

AMSOIL. They each told AMSOIL they were not aware of any obstacles or other agreements

that would prohibit me from undertaking additional independent contractor work for AMSOIL.

Brooks Decl., ¶14; Cowan Decl., ¶14.

27. On April 7, 2020, Brooks and Cowan each received a letter from counsel for

Remver falsely accusing them of breaching the ICA and CA. Brooks Decl., ¶15; Cowan Decl.,

¶16.

28. AMSOIL terminated its working relationship with Brooks and Cowan the next

day, on April 8. Neither of them have provided any services to AMSOIL since completing that

particular project. Brooks Decl., ¶16; Cowan Decl., ¶17.

29. Remver, however, continued to threaten Brooks, Cowan and AMSOIL with

litigation despite the lack of merit in its claims. Remver used the threat of litigation (in Texas) to

attempt to coerce a settlement payments from each of them. On June 23, Remver’s counsel

separately demanded that Brooks and Cowan each pay $432,000 to settle its purported claims

just against them. This demand was for more than seventy-two (72) times the amount received

by Cowan for his independent contractor work. This demand was more than seventy (70) times

the amount received by Brooks for his independent contractor work. Brooks Decl., ¶s 17-18;

Cowan Decl., ¶s 18-19. See Petition, Ex. N.

AMSOIL Motion to Dismiss or Stay Page 7 of 16
Original Answer Subject to Motion to Dismiss or Stay
30. As a result 0f Remver’s continuing baseless threats 0f litigation, 0n June 30, 2020,

AMSOIL commenced an action against Remver in the Wisconsin Circuit Court for Douglas

County, located in Superior, Wisconsin (the “Wisconsin Action”). Brooks Decl., 1H9; Cowan

Decl., 1&0. See Declaration 0f Alan M. Anderson, dated October 8, 2020 (“Anderson Decl.”), 1Q,

EX. A.

3 1. On August 12, more than ﬁve weeks after AMSOIL commenced its action against

Remver, and almost a week after ﬁling this action, Remver removed the Wisconsin Action t0 the

United States District Court for the Western District 0f Wisconsin, where it remains pending as

0f this date. Brooks Decl., 1&0; Cowan Decl., 1&1. See Anderson Decl., ﬂs 3-4, EX. B.

ARGUMENT
I. This Action Should Be Dismissed 0r Staved Under the Doctrine 0f Comitv.

On April 8, 2020, one day after Remver claimed that AMSOIL had somehow tortiously

interfered with Remver’s contracts with Defendants Brian Brooks and Patrick Cowan (“Brooks

and Cowan”), AMSOIL decided t0 simply end the proj ect Brooks and Cowan were then working

0n, despite the lack 0f merit in Remver’s allegations, logically and reasonably assuming that

Remver would then drop the matter. See Brooks Decl., 1H 6; Cowan Decl., 1H 7. See generally

Anderson Decl., 1Q, EX. A at ﬂs 11-48. Unfortunately, Remver did not act — and has not acted —

logically 0r reasonably. Although it had agreed t0 amicably end its contract with AMSOIL due t0

the impact 0f the COVID-19 pandemic, saying it “completely understand[s]” and that it would

“always be here t0 help the AMSOIL family,” Remver decided t0 try t0 use the threat 0f

litigation t0 coerce outrageous and crazy settlements. See Petition, EX. L; Brooks Decl., ﬂs 17-18;

Cowan Decl., ﬂs 18-19; Anderson Decl., 1Q, EX. A at ﬂs 30-35, 45-48. For example, although
Brooks received only $6,120 for his work directly for AMSOIL, Remver’s counsel unreasonably

AMSOIL Motion t0 Dismiss 0r Stay Page 8 0f 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
demanded $432,000 in settlement. Brooks Decl., 1]
1 8. Remver’s counsel separately demanded

the same amount from Cowan, more than seventy-two (72) times the amount he was paid by

AMSOIL. Cowan Decl., 1H 9.

Faced with Remver’s continuing threats 0f litigation and its unconscionable demands for

money, AMSOIL commenced an action in the Circuit Court for Douglas County in the State 0f

Wisconsin 0n June 30, 2020. See Anderson Decl., 1Q, EX. A; Brooks Decl., 1H9; Cowan Decl.,

1&0. In light 0f Remver’s baseless assertions, AMSOIL sought declarations that it had not

tortiously interfered with Remver’s contracts with Brooks and Cowan and that it could lawfully

engage the services 0f Brooks and Cowan. Brooks and Cowan were not, and are not, parties t0

that action. See generally Anderson Decl., 1Q, EX. A.

In the face 0f AMSOIL’S commencement 0f the Wisconsin Action, which clearly

established a forum t0 resolve the purported dispute between them, Remver decided t0 belatedly

engage in blatant forum-shopping. On August 7, it ﬁled this action in this Court, adding Brooks

and Cowan as named defendants.1 Not surprisingly, Remver’s Petition includes precisely claims

against AMSOIL for allegedly tortiously interfering with Remver’s contracts with Brooks and

Cowan. See Petition, ﬂs 35-38. Remver seeks t0 bolster its claims against AMSOIL by asserting

duplicative and meritless claims for unjust enrichment/quantum meruit, fraud, promissory

estoppel and even “conspiracy and aiding and abetting.” See Petition, ﬂs 55-76. However, those

claims could have been asserted as counterclaims in the Wisconsin Action.

1
Remver’s rush to forum-shop and commence this action is defective as against Brooks and Cowan. As explained in
their separately-ﬁled Motion to Dismiss, Remver ﬁled its claims against Brooks and Cowan in the wrong
jurisdiction and also failed to satisfy an explicit condition precedent to the commencement 0f any dispute resolution
process by not engaging in good faith mediation. This action accordingly should be dismissed insofar as Remver
asserts claims against Brooks and Cowan.

AMSOIL Motion t0 Dismiss 0r Stay Page 9 0f 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
Nearly a week after ﬁling this action, Remver removed the Wisconsin Action t0 the

United States District Court for the Western District 0f Wisconsin. See Anderson Decl., 1T3, EX.

B. The Wisconsin Action, commenced nearly ﬁve weeks before Remver ﬁled this action,

remains pending. 1d,, 114.2

Because AMSOIL commenced the Wisconsin Action ﬁrst} the proper analysis for this

Court is t0 stay — 0r in this instance dismiss — this action under the doctrine 0f comity. “When an

action is pending in federal court 0r a court 0f another state, [a Texas court] should consider

whether the later-ﬁled case should be stayed under the doctrine 0f comity.” In re Old American

Cnly. Mut. Fire Ins. C0., N0. 13-1 1-00412-CV, 2012 WL 6699052, at *2; Tex. App. LEXIS
10670, at *3-4 (Tex. App. — Austin Dec. 20, 2012, n0 pet.) (orig. proceeding). See also Aston

Grove LC. v. Jackson Walker L.L.P., 366 S.W.3d 790, 794 (TeX. App. — Dallas 2012, n0 pet).

In applying comity, “a Texas court would usually stay its proceeding pending adjudication 0f the

ﬁrst ﬁled suit.” Id.

T0 establish its right t0 a stay, AMSOIL

must generally show “that the two suits involve the same cause 0f action, concern
the same subj ect matter, involve the same issues, and seek the same relief,” but
the court may also consider additional factors, such as which action was ﬁled
ﬁrst, whether the parties are the same, and “the effect 0f a judgment in the later
action 0n any order 0r judgment entered in the prior action.

In re Old American, 2012 WL 6699052, at *2 (quoting Grifﬁth v. Grifﬁth, 341 S.W.3d 43, 54

(Tex. App. — San Antonio 201 1, n0 pet.)). However, “it is the custom for the second court t0 stay

its proceeding until the ﬁrst suit has been determined, 0r at least for a reasonable time.” Crown

2
Remver has ﬁled a motion to dismiss the Wisconsin Action. AMSOIL has opposed the motion. It alternatively has
argued that the Federal Court, if it does not deny Remver’s motion outright, should transfer the Wisconsin Action to
the United States District Court for the Northern District 0f Texas. See Anderson Decl., 114. AMSOIL is conﬁdent it
Will prevail, either before the trial court or, if necessary, 0n appeal to the United States Court 0f Appeals for the
Seventh Circuit.
3
No dispute exists that AMSOIL ﬁled the ﬁrst action ﬁve weeks before Remver commenced this action.

AMSOIL Motion t0 Dismiss 0r Stay Page 10 0f 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
Leasing Corp. v. Sims, 92 S.W.3d 924, 927 (Tex. App. — Texarkana 2002, n0 pet). The reason

for at least a stay is “simple fairness: in a race t0 the courthouse, the winner’s suit should have

dominant jurisdiction.” Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (orig. proceeding).

Moreover, n_0t staying 0r dismissing two parallel actions would waste judicial resources, create

delays, and hurt the “orderly procedure in the trial 0f contested issues.” Encore Enters., Inc. v.

Borderplex Really Trust, 583 S.W.3d 713, 721 (Tex. App. — E1 Paso 2019, n0 pet.) (quoting

Perry, 66 S.W.3d at 252).

The “fundamental question” is whether the subject matter 0f the two actions is

“inherently interrelated.” Encore Enters., 583 S.W.3d at 721. In making this determination, the

key question is whether the claims asserted in the second action would be compulsory

counterclaims in the ﬁrst action. Id. at 721-722. Further, exact identity 0f the parties in the two

actions is not required. See id. at 723-724.

Here, there is n0 question that the Wisconsin Action and this action arise out 0f the same

operative transaction 0r occurrence. AMSOIL commenced the Wisconsin Action t0 resolve

Remver’s claims that it had tortiously interfered with Remver’s contracts with Brooks and

Cowan and t0 conﬁrm that it was free t0 lawfully utilize Brooks and Cowan’s services. See

generally Anderson Decl., 1Q, EX. A. Remver’s claims against AMSOIL in this action are

mirror-images. Regardless 0f the duplicative and redundant nature 0f Remver’s claims for unjust

enrichment/quantum meruit, fraud, promissory estoppel and conspiracy, the issues in both cases

are the same: Did AMSOIL tortiously interfere with Remver’s contracts with Brooks and Cowan

and may AMSOIL legally utilize the services 0f Brooks and Cowan? Final resolution 0f the

Wisconsin Action will necessarily resolve Remver’s claims against AMSOIL in this action.

AMSOIL Motion t0 Dismiss 0r Stay Page 11 of 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
The fact Brooks and Cowan are not parties in the Wisconsin Action is 0f n0 moment.

Exact identity 0f parties is not required because the claims asserted by AMSOIL and Remver

against each other are “tantamount” t0 claims involving Brooks and Cowan. See Encore Enters.,

583 S.W.3d at 724. Moreover, Brooks and Cowan have separately ﬁled a motion t0 dismiss,

which is likely to result in them n0 longer being parties t0 this action. While they ultimately may

be witnesses, they are not necessary parties t0 resolve this dispute, the crux 0f which is

AMSOIL’S termination 0f the IT Project with Remver as a result 0f the COVID-19 pandemic

and its decision t0 engage Brooks and Cowan t0 perform other services.4

This Court clearly should stay this action as against AMSOIL pending ﬁnal resolution of

the ﬁrst—ﬁled Wisconsin Action. Doing so will promote judicial economy, prevent this Court

from wasting its valuable time and resources 0n a proceeding that likely will be resolved when

the Wisconsin Action is determined, and prevent the continuation 0f multiple lawsuits, which

was caused solely by Remver’s blatant attempt at forum-shopping long after AMSOIL

commenced the Wisconsin Action. Remver may be upset that its multiple attempts t0 extort an

unreasonable settlement from AMSOIL (and Brooks and Cowan) miserably failed and that

AMSOIL ﬁled an action ﬁrst, but as a matter 0f “simple fairness,” having won the race t0 the

courthouse, AMSOIL’S choice ofjurisdiction should be recognized. See Perry, 66 S.W.3d at 252.

In the circumstances 0f this case, the court should dismiss this action as against

AMSOIL. See Miles v. Ford Motor C0., 914 S.W.2d 135, 139 (TeX. 1995) (“In the trial court

4
Moreover, Remver could not assert its Cowan in the Wisconsin Action. It contractually
claims against Brooks and
agreed to state court in Tarrant County and exclusive jurisdiction for claims relating to the ICAS that
as the sole
Brooks and Cowan signed. As established in Brooks and Cowan’s separate Motion to Dismiss, Remver cannot
assert all 0f its purported claims alleged in the Petition against AMSOIL and Brooks and Cowan in the same court
due to conﬂicting exclusive jurisdiction provisions in the various contracts between the parties. Remver also cannot
assert claims against Brooks and Cowan until it engages in good faith mediation With them. Until that condition
precedent is satisﬁed — Which may result in such claims being resolved — Remver cannot assert claims against
Brooks and Cowan in any court.

AMSOIL Motion t0 Dismiss 0r Stay Page 12 of 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
context, we have at times indicated that the second-ﬁled suit should be dismissed”) (citing cases;

citations omitted). As established in the separate Motion t0 Dismiss ﬁled by Brooks and Cowan,

Remver commenced this action in the wrong jurisdiction. Remver also blatantly failed t0 comply

with an explicit condition precedent t0 the commencement 0f any litigation — that it engage in

good faith mediation with Brooks and Cowan. Because this Court should dismiss this action

insofar as it asserts claims against Brooks and Cowan, it should also dismiss this action insofar

as it asserts claims against AMSOIL because 0f the pendency 0f the Wisconsin Action. Remver

can have its day in court against AMSOIL in the Wisconsin Action. N0 justiﬁable reason exists

for this action t0 remain 0n this Court’s docket once Brooks and Cowan are dismissed.

ORIGINAL ANSWER

AMSOIL ﬁles this, its Original Answer, subject t0 the Motion t0 Dismiss 0r Stay, and

asserts as follows:

1. This Original Answer is ﬁled subject t0 AMSOIL’S Motion t0 Dismiss 0r Stay.

2. Pursuant to Rule 92, TEXAS RULES 0F CIVIL PROCEDURE, AMSOIL generally

denies each and every allegation contained in Plaintiff’s Petition, and hereby demands strict

proof thereof by a preponderance 0f the credible evidence.

3. AMSOIL speciﬁcally denies that jurisdiction and venue are proper as asserted in

Remver’s Petition and hereby demands strict proof thereof by a preponderance 0f the credible

evidence. See Petition at ﬂs 6-1 1.

4. AMSOIL denies that all conditions precedent have been “performed, excused, 0r

waived, 0r have occurred” pursuant t0 TEXAS RULE OF CIVIL PROCEDURE 54, as asserted in

Remver’s Petition, and hereby demands strict proof thereof by a preponderance 0f the credible

evidence. See Petition at 1]
12.

AMSOIL Motion t0 Dismiss 0r Stay Page 13 0f 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
5. For further answer, if any is needed, AMSOIL afﬁrmatively pleads that Remver

has failed to state a claim upon which relief may be granted; that Remver cannot establish a

primafacie case; that Remver’s claims are subject, in whole or in part, to the defenses of accord

and satisfaction, estoppel, waiver, laches, ratiﬁcation, and direct-beneﬁt—estoppel; that Remver

failed t0 mitigate its damages, all such damages being denied; and that Plaintiff” s own actions

contributed to its damages, all such damages being denied.

6. AMSOIL further asserts, in the unlikely event that punitive or exemplary damages

could be considered in this cause, that this Court limit such damages in accordance with

applicable law.

PRAYER
For the foregoing reasons, Defendant AMSOIL INC. respectfully requests that the court

grant its motion in its entirety and stay or dismiss this action under the doctrine of comity

because there is a prior action pending in the United States District Court for the Western District

of Wisconsin. Subject to its motion to dismiss 0r stay, AMSOIL also requests that the Court

enter judgment that Remver take nothing by its claims, that the costs of suit and attorneys’ fees

be assessed against Remver, and that AMSOIL be granted such other general and equitable relief

to Which it may be entitled.

Respectfully submitted,

Dated: October 8, 2020. M%{/
N
Gem}!!!
Attorney
¢M
ﬂfgéyurtney
at
1

La
(StaﬁBar No. 00790512)

700 N. St. Mary’ s, Suite 1825
San Antonio, Texas 78205
Phone: 210-227-7121
Email: GNcourtney@GNCourtney.com

AMSOIL Motion to Dismiss 0r Stay Page 14 of 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
and

Allan K. DuBois (State Bar N0. 00000092)
Law Ofﬁce of Allan K. DuBois, P.C.
700 N. St. Mary’s, Suite 1825
San Antonio, Texas 78205
Phone: 210-227-3106
Fax: 210-227-1290
Email: akd@akduboislaw.com

and

Alan M. Anderson (agreed motion to admit pro hac Vice)
L. Reagan Florence (agreed motion to admit pro hac Vice)
ALAN ANDERSON LAW FIRM LLC
Crescent Ridge Corporate Center
11100 Wayzata B1Vd., Suite 545
Minneapolis, MN
55305
Phone: 612-756-7000
aanders0n@anderson-lawﬁrm.com
rﬂorence@anderson-lawﬁrm.corn

Attorneysfor Defendants AMSOIL INC, Brian Brooks and
Patrick Cowan

CERTIFICATE OF CONFERENCE

This is to certify that on October 2020, counsel for movant and counsel for plaintiff

M
7,

have personally conducted a conference at which there was a substantive discussion of every
item presented t0 the Court in this motion and despite best efforts the counsel have not been able
to resolve those matters presented.

/%//
@éﬁfrﬁ IV Courtneya

AMSOIL Motion to Dismiss 0r Stay Page 15 of 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
CERTIFICATE OF SERVICE

I and correct copy 0f the foregoing document, and copies of the
certify that a true
Declarations of Brian J. Brooks, Patrick N. Cowan, and Alan M. Anderson (with exhibits), have
been served upon counsel of record for Plaintiff Remver, LLC on this 8th day of October, 2020,
Via the court’s electronic ﬁling system.

Mre/(N. $0urtneya

AMSOIL Motion to Dismiss 0r Stay Page 16 of 16
Original Answer Subject t0 Motion t0 Dismiss 0r Stay
CAUSE N0. DC—20-10819
REMVER, LLC §
§
Plainnﬂ §
§ IN THE DISTRICT COURT
v. §
§ 298m JUDICIAL DISTRICT
AMSOIL INC., BRIAN BROOKS, AND §
PATRICK COWAN § DALLAS COUNTY, TEXAS
§
Defendants. §
§

DECLARATION OF BRIAN J. BROOKS

'I,
Brian J. Brooks, state and declare under penalty of pexjury as follows:

1. I am an individual and reside in Frisco, Texas. This declaration is based on

personal knowledge unless otherwise indicated.

2. On January 12, 2020, I electronically signed an Independent Contractor

Agreement (“ICA”) with Plaintiff Remver, LLC (“Remver”). A copy of the ICA is attached as
Exhibit C to Remver’s Original Peﬁtion ﬁled in this action.

3. on page 11 of the ICA, the “Choice of Law” paragraph states 'm pan,

“Jurisdiction and venue for any claim arising out of this Agreement shall be made in the State of

Texas, in the County of Tarrant.”

4. Also on page 11 ofthe ICA, the “Mediation, Litigation & Arbitration” paragraph
states in part:

If a dispute arises out of or relates to this Agreement, or the alleged breach
thereof, and if the dispute is not settled through negotiation, the Parties agree ﬁrst
to try in good faith to settle the dispute through mediation. The mediation process
shall be administered by Texas Mediation Services, or another administrator
mutually agreed between the Parties, and shall be a condition precedent to
resorting to arbitration, litigation, or some other dispute resolution procedure. If
the mediation process is unsuccessful, either Party shall have the option of
seeking either arbitration or ﬁling a legal action in a court of competent
jurisdiction. (Emphasis added.)

5. In paragraph 12 of its Original Petition, Remver falsely alleges that “all

conditions precedent have been performed, excused, or waived, or have occurred.” That

allegation is not accurate.

6. Remver and I have never engaged in any mediation proceeding, administered by

the Texas Mediation Services or otherwise. I have never had any communications with Remv‘er

concerning mediation.

7. I have never waived, nor do I waive, the contractual condition precedent to

engage in mediation prior to the commencement of any legal action.

8. I have never waived, nor do I waive, the exclusive choice of forum provision in

the ICA, requiring that any action “arising out oi" the ICA “shall” be ﬁled in “the State of Texas,

in the County of Tarrant.” I do n_ot consent to the forum for this action in Dallas County, Texas.

9. 0n January 12, 2020, I electronically signed a Conﬁdentiality Agreement

(“CA”) with Remver. A copy of the CA is attached as Exhibit D to Remver’s Original Petition
ﬁled in this action.

10. Paragraph VI ofthe CA, headed “General Provisions,” states in part, “In the

event of a dispute hereunder, each party irrevocably and unconditionally consents to the

jurisdiction of any such proceeding in Dallas County, Texas, and the United States District Court

for the Northem District of Texas, without giving effect to any choice or conﬂict of law

provision or rule; and waives any objection that it may have to persona] jurisdiction therein.”

ll. I have never been employed by Remver or acted as an employee of Remver.

12. I worked as an independent contractor for Remver on an IT consulting project

for Defendant AMSOIL INC. (“AMSOIL”), beginning in early 2020.

2
13. It is my understanding that as a result of the global COVID-19 pandemic, in the

latter half of March 2020, AMSOIL decided to terminate the IT consulting project with Remver.

On March 24, 2020, Remver told me to immediately cease all work on the project with

AMSOIL.

14. Shortly thereaﬁer, AMSOIL asked if I was interested in performing IT services

directly for AMSOIL on an hourly basis. As a self—employed independent contractor, I expressed

an interest. I never solicited any additional consulting work from AMSOIL. I told AMSOIL I

was not aware of any obstacles or other agreements that would prohibit me ﬁom undertaking

additional independent contractor work for AMSOIL.

15. 0n April 7, 2020, I received a letter from counsel for Remver falsely accusing

me ofbreaching the ICA and CA.

l6. AMSOIL terminated its working relationship with me the next day, on April 8. I

have not provided any services to AMSOIL since completing my work on that project.

17. Remver, however, continued to threaten me with litigation despite the lack of

merit in its claims.

18. Although I only received $6,] 20.00 for my independent contractor work for
AMSOIL, on June 23, Remver’s counsel demanded that I pay $432,000 to settle its purported

claims just against me. At more than seventy (70) times my earnings on the project, Remver’s
settlement demand was not made in good faith.

19. It is my understanding that as a result of Remver’s continuing baseless threats of

litigation against it, on June 30, 2020, AMSOIL commenced an action against Remver in the

Wisconsin Circuit Court for Douglas County, located in Superior, Wisconsin (the “Wisconsin

Action”).
20. It is further my understanding that on August 12, more than ﬁve weeks after

AMSOIL commenced its action against Remver, and almost a week after ﬁling this action,

Remver removed the Wisconsin Action to the United States District Court for the Western

District of Wisconsin, where that action remains pending as of this date.

I declare under penalty peljury pursuant the laws ofthe State of Texas and 28 U.S.C.

§1746 that the foregoing statements in this declaration are true and correct to the best of my

knowledge, information, and belief as of the date signed.

Executed at Frisco, Texas.

Dated: October l, 2020.
Brian J. ooks
CAUSE NO. DC-20-108 1 9
REMVER, LLC §
§
Plaintiff, §
§ IN THE DISTRICT COURT
V. §
§ 298TH JUDICIAL DISTRICT
AMSOIL INC., BRIAN BROOKS, AND §
PATRICK COWAN § DALLAS COUNTY, TEXAS
§
Defendants. §
§

Case Info

Judge

TOBOLOWSKY, EMILY Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 08, 2020

Case Filing Date

August 07, 2020

County

Parties

AMSOIL INC. Defendant
BROOKS, BRIAN Defendant
COHEN, JUSTIN Attorney for the Plaintiff
COURTNEY, GEOFFREY N Attorney for the Defendant
COWAN, PATRICK Defendant
DUBOIS, ALLAN Attorney for the Defendant
HENLEY, GEOFF J Attorney for the Plaintiff
REMVER, LLC Plaintiff
TSG / TRINITY SECURITY GROUP LLC Defendant
TUBAISTE Defendant
Dina McKenney Attorneys for Plaintiffs
Alexander Ricco Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Party Notice: REMVER, LLC vs. AMSOIL INC., et al

Preview

Related Topics

Case Info

Parties