Preview
FILED
10/29/2020 4:42 PN
FELICIA PITRE
DISTRICT CLERP
DALLAS CO., TEXAS
Jeremy Jones DEPUTN
CAUSE N0. DC-20-10819
REMVER, LLC §
§
Plain ti, §
§ IN THE DISTRICT COURT
V. §
§ 298m JUDICIAL DISTRICT
AMSOlL INC., BRIAN BROOKS, AND §
PATRICK COWAN § DALLAS COUNTY, TEXAS
§
Defendants. §
§
AMENDED DECLARATION OF PATRICK N. COWAN
I, Patrick N. Cowan, state and declare under penalty of peljury as follows:
1. I am an individual and reside in Wausau, Wisconsin. This declaration is based
on personal knowledge unless otherwise indicated.
2. On January 31, 2020, I electronically signed an Independent Contractor
Agreement (“ICA”) with Plaintiff Remver, LLC (“Remver”). A copy of the ICA is attached as
Exhibit E to Remver’s Original Petition led in this action.
3. On page 11 of the ICA, the “Choice of Law” paragraph states in 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.”
4. Also on page 11 of the 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 rst
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 ling 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 m engaged in any mediation proceeding, administered by
the Texas Mediation Services or otherwise. I have never had any communications with Remver
concerning mediation.
7. I have never waived, nor do I waive, the contractual agreement to engage in
mediation prior to the commencement of any dispute resolution proceeding as contained in the
ICA.
8. Ihave never waived, nor do I waive, the exclusive choice of forum provision in
the ICA, requiring that any action “arising out of” the ICA “shall” be led in “the State of Texas,
in the County of Tarrant.” I do n_ot consent to the forum of this action being in Dallas
County,
Texas.
9. On January 3 l, 2020, I electronically signed a Condentiality Agreement
(“CA”) with Remver. A copy of the CA is attached as Exhibit F to Remver’s Original Petition
led in this action.
10. 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 conict of law
provision or rule; and waives any objection that it may have to personal jurisdiction therein.”
11. Ihave 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.
l3. 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 proj ect with Remver.
On March 24, 2020, Remver told me to immediately cease all work on the project with
AMSOIL.
l4. AMSOIL asked me 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 from undertaking additional
independent contractor work for AMSOIL.
15. Inever worked with Remver prior to the AMSOIL project and have never
worked with Remver since the AMSOIL project.
16. On April 7, 2020, Ireceived a letter from counsel for Remver falsely accusing
me of breaching the ICA and CA.
l7. AMSOIL terminated its working relationship with me the next day, on April 8. I
have not provided any services to AMSOIL since that date.
18. Remver, however, continued to threaten me with litigation despite the lack of
merit in its claims. Remver used the threat of litigation (in Texas) to attempt to coerce a
settlement payment om me.
19. Although I only received $5,992.50 for my independent contractor work for
AMSOIL, on June 23, Remver’s counsel demanded that Ipay $432,000 to settle its purported
claims just against me. At over 72 times my gross earnings, Remver’s settlement demand was
not made in good faith.
20. 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”).
2 1. It is further my understanding that on August 12, more than ve weeks after
AMSOIL commenced its action against Remver, and almost a week after ling 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.
22. My date of birth is September 24, 1956. My home address is 802 Hamilton
Street, Wausau, WI 54403.
I declare under penalty perjury pursuant the laws of the 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 Wausau, Wisconsin.
Dated: October , 2020. V
a n
Patrick N. Cowan
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Roberta Williams on behalf of Allan DuBois
Bar No. 92
roberta@akduboislaw.com
Envelope ID: 47659942
Status as of 10/31/2020 11:02 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Justin Cohen 24078356 Justin.Cohen@tklaw.com 10/29/2020 4:42:47 PM SENT
Dina McKenney dina.mckenney@tklaw.com 10/29/2020 4:42:47 PM SENT
Reagan Florence rorence@anderson-lawfirm.com 10/29/2020 4:42:47 PM SENT
Geoffrey NCourtney GNCourtney@GNCourtney.com 10/29/2020 4:42:47 PM SENT
Allan K.DuBois akd@akduboislaw.com 10/29/2020 4:42:47 PM SENT
Alan M.Anderson aanderson@anderson-lawfirm.com 10/29/2020 4:42:47 PM SENT
Preview
FILED 10/29/2020 4:42 PN FELICIA PITRE DISTRICT CLERP DALLAS CO., TEXAS Jeremy Jones DEPUTN CAUSE N0. DC-20-10819 REMVER, LLC § § Plain ti, § § IN THE DISTRICT COURT V. § § 298m JUDICIAL DISTRICT AMSOlL INC., BRIAN BROOKS, AND § PATRICK COWAN § DALLAS COUNTY, TEXAS § Defendants. § § AMENDED DECLARATION OF PATRICK N. COWAN I, Patrick N. Cowan, state and declare under penalty of peljury as follows: 1. I am an individual and reside in Wausau, Wisconsin. This declaration is based on personal knowledge unless otherwise indicated. 2. On January 31, 2020, I electronically signed an Independent Contractor Agreement (“ICA”) with Plaintiff Remver, LLC (“Remver”). A copy of the ICA is attached as Exhibit E to Remver’s Original Petition led in this action. 3. On page 11 of the ICA, the “Choice of Law” paragraph states in 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.” 4. Also on page 11 of the 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 rst 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 ling 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 m engaged in any mediation proceeding, administered by the Texas Mediation Services or otherwise. I have never had any communications with Remver concerning mediation. 7. I have never waived, nor do I waive, the contractual agreement to engage in mediation prior to the commencement of any dispute resolution proceeding as contained in the ICA. 8. Ihave never waived, nor do I waive, the exclusive choice of forum provision in the ICA, requiring that any action “arising out of” the ICA “shall” be led in “the State of Texas, in the County of Tarrant.” I do n_ot consent to the forum of this action being in Dallas County, Texas. 9. On January 3 l, 2020, I electronically signed a Condentiality Agreement (“CA”) with Remver. A copy of the CA is attached as Exhibit F to Remver’s Original Petition led in this action. 10. 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 conict of law provision or rule; and waives any objection that it may have to personal jurisdiction therein.” 11. Ihave 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. l3. 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 proj ect with Remver. On March 24, 2020, Remver told me to immediately cease all work on the project with AMSOIL. l4. AMSOIL asked me 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 from undertaking additional independent contractor work for AMSOIL. 15. Inever worked with Remver prior to the AMSOIL project and have never worked with Remver since the AMSOIL project. 16. On April 7, 2020, Ireceived a letter from counsel for Remver falsely accusing me of breaching the ICA and CA. l7. AMSOIL terminated its working relationship with me the next day, on April 8. I have not provided any services to AMSOIL since that date. 18. Remver, however, continued to threaten me with litigation despite the lack of merit in its claims. Remver used the threat of litigation (in Texas) to attempt to coerce a settlement payment om me. 19. Although I only received $5,992.50 for my independent contractor work for AMSOIL, on June 23, Remver’s counsel demanded that Ipay $432,000 to settle its purported claims just against me. At over 72 times my gross earnings, Remver’s settlement demand was not made in good faith. 20. 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”). 2 1. It is further my understanding that on August 12, more than ve weeks after AMSOIL commenced its action against Remver, and almost a week after ling 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. 22. My date of birth is September 24, 1956. My home address is 802 Hamilton Street, Wausau, WI 54403. I declare under penalty perjury pursuant the laws of the 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 Wausau, Wisconsin. Dated: October , 2020. V a n Patrick N. Cowan Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Roberta Williams on behalf of Allan DuBois Bar No. 92 roberta@akduboislaw.com Envelope ID: 47659942 Status as of 10/31/2020 11:02 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Justin Cohen 24078356 Justin.Cohen@tklaw.com 10/29/2020 4:42:47 PM SENT Dina McKenney dina.mckenney@tklaw.com 10/29/2020 4:42:47 PM SENT Reagan Florence rorence@anderson-lawfirm.com 10/29/2020 4:42:47 PM SENT Geoffrey NCourtney GNCourtney@GNCourtney.com 10/29/2020 4:42:47 PM SENT Allan K.DuBois akd@akduboislaw.com 10/29/2020 4:42:47 PM SENT Alan M.Anderson aanderson@anderson-lawfirm.com 10/29/2020 4:42:47 PM SENT