Preview
FILED
6/15/2020 10:01 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Lafonda Sims DEPUTY
Cause No. DC-20-04765
Foop GLoBAL INNOVATION GP LLC, IN THE DISTRICT COURT
Plaintiff
Vv.
160TH JUDICIAL DISTRICT
JW NuTRITIONAL LLC AND JESSE J
WINDRIX,
Defendants
DALLAs County, TEXAS
Plaintiffs Response to Defendants’ Motion to Transfer Venue
Plaintiff Food Global Innovation GP LLC (‘Food Global”) files this Response to Defend-
ants JW Nutritional LLC (“JWN”) and Jesse Windrix’s April 17, 2020 Motion to Transfer Venue
(the “Motion”.TABLE OF CONTENTS
TABLE OF CONTENTS ..........csscecsscecseeseseescsceecscnececsenecsesecscoeseeeeeeeees I
SUMMARY OF THE ARGUMENT. ..........ccecsececsececeececeeseceeeeeceeeeceeeeees 1
FACTUAL BACKGROUND ...........sceseccseccecsccscecnececseesceseusessessceseecess 2
STANDARD ... 3
ARGUMENT. .........cecsecececnscscneescnscnceecscsenseneescnenseseneeecesesensaesneaeeeeees 4
1. Venue is proper in Dallas County ..........scessesssesseeseesseseessessesneesessseesesseeseseeseesnesnes 4
1.1. Events and omissions giving rise to Food Global’s breach of
implied bailment contract claim occurred in Dallas County ............s0s0000+ 5
1.2. Food Global received multiple communications in Dallas
County regarding the raw material that ultimately gave rise to its
CLAIMS... eesesssecsesseessesseessceseessessesseesecsnessessessecssctsessssaessecsecsncsneessessseaeessseaees 7
2. Defendants fail to meet their burden to establish mandatory venue lies
In Collin County ......csssessssessessesssssssssessessssssssssssssssscsessesscsessesssessesseessessesessesnssesee 10
2.1. Defendants fail to present prima facie evidence supporting
mandatory venue in Collin County .........ccssssssessesssessesseessesseeeeseesnessesseeess 10
2.2. | The MSA does not apply to Food Global’s claims .........ssssssssssessesseeseesnes ll
2.3. Venue-selection clauses are unenforceable under Texas law...
3 The Court need not transfer the Action as a matter of convenience. ..
CONCLUSION.........cscsecscssscssrecsseeescesencseneeseeceeceeneesesensseseeneeeenees 16
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE iSUMMARY OF THE ARGUMENT
Venue in this Court is proper because a substantial part of the events or omissions giving
rise to Food Global’s claims occurred in Dallas County. Specifically, Food Global’s right of pos-
session to its raw material stemming from its implied bailment contract with JWN arose in Dallas
County and JWN subsequently breached that contract by refusing to return Food Global’s raw
material to it in Dallas County. Further, Food Global received multiple communications in Dallas
County from JWN and Windrix concerning the now-stolen raw material that gave rise to Food
Global’s claims. As such, Dallas is a proper venue under the general venue statute.
Contrary to Defendants’ argument, Collin County is not a mandatory venue for this case.
As an initial matter, Defendants fail to meet their evidentiary burden to establish mandatory venue
because they do not present prima facie evidence to support their mandatory venue claims. Next,
Food Global’s claims in this action do not fall within the scope of Food Global and JWN’s Exclu-
sive Manufacturing Supply Agreement (““MSA”), meaning the MSA’s venue-selection clause
does not apply to this case. Even if, however, the MSA applied to Food Global’s claims, its venue
selection clause is unenforceable under Texas state law, rendering it inapplicable. Because manda-
tory venue does not lie in Collin County, Food Global’s choice of venue—Dallas County—must
not be disturbed.
Finally, the Court should not transfer this case to Collin County out of convenience or to
avoid injustice to the parties. Defendants fail to establish all three prongs of § 15.002(b): (1) they
do not sufficiently demonstrate how they would encounter economic or personal hardship as a
result of this action remaining in Dallas County; (2) they do not demonstrate how the balance of
interests weigh in favor of transfer to Collin County; and (3) they do not show how there would be
an injustice on any party as a result of the action remaining in Dallas County. Accordingly, the
Court must deny the Motion and maintain this action in Dallas County.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 1FACTUAL BACKGROUND
Food Global is a Dallas-based company that markets and distributes dietary and nutritional
supplement products under, among other trademarks, VITAXTRONG. JWN is a Texas-based
manufacturer of food products. Windrix is the sole member of JWN.
Food Global previously worked with JWN to facilitate the manufacture of Food Global’s
VITAXTRONG products. Part of this working relationship required Food Global to purchase raw
materials from third-party suppliers and coordinate the delivery of the raw materials to JWN to be
used for the manufacture of the VITAXTRONG products. Food Global would inform JWN that
its raw material was being shipped to JWN, then JWN would confirm receipt of the raw material
and use and store it as needed. In previous instances, at Food Global’s request, JWN would return
Food Global’s raw materials to it by shipping them to other designated third-party warehousing or
manufacturing companies.
In early 2019, Food Global and JWN coordinated the transportation of Food Global’s raw
material used to manufacture VITAXTRONG products from JWN’s facility to DC Logistics, a
third party used by Food Global for the storage of its raw material. The DC Logistics facility was
located in Dallas County. In February 2020, Windrix confirmed to Food Global that JWN would
begin to prepare the shipment of the raw material to DC Logistics. In March 2020, Windrix con-
firmed JWN held 16,519 pounds of Food Global’s raw material that required transport. Despite
Windrix’s assurances, however, JWN and Windrix never transported Food Global’s raw material
to DC Logistics in Dallas County. Food Global later confirmed JWN withheld an additional 7,230
pounds of raw material that was never used for the manufacture of one of Food Global’s products
by JWN. Thus, JWN and Windrix knowingly and intentionally stole over 23,000 pounds of raw
material from Dallas-based Food Global.
On March 20, 2020, Food Global filed this action against JWN and Windrix for conversion
and violations of the Theft Liability Act.! On April 17, 2020, Defendants filed the present Motion
1 Food Global filed its First Amended Petition on June 15, 2020, and it added a claim for breach
of implied bailment contract. See Ex. 1.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 2)to Transfer Venue. Defendants argue, inter alia, the action should be transferred to Collin County
to be ostensibly merged with a separate, concurrent action between the parties (the “Collin County
Action”).? Food Global initiated the Collin County Action on October 28, 2020, asserting claims
against JWN and Windrix for breach of express warranty, breach of contract, and fraud by nondis-
closure.’ The claims in the Collin County Action stem from JWN’s manufacture of defective food
products intended for sale by Food Global and JWN’s refusal to follow the dispute resolution pro-
cedures outlined in the MSA. The claims and underlying facts in the Collin County Action are
wholly unrelated to the claims and underlying facts in this suit.
STANDARD
It is well established that the plaintiff “has the first choice to fix venue in a proper county.”>
Venue may be proper in many counties under general, permissive, or mandatory venue rules.®
When, as here, the defendant challenges the plaintiff’s venue choice, the plaintiff need only pre-
sent prima facie proof venue is proper where it filed suit.” The plaintiff’s prima facie proof, which
is based on pleadings and affidavits, is not subject to rebuttal, cross-examination, impeachment, or
disproof.® The Court must assume the pleadings and affidavits are true. If, based on this infor-
mation, venue is proper, the trial court must maintain venue unless a mandatory venue provision
applies or the defendant presents “conclusive evidence” that “destroy[s]” the plaintiff’s prima
2 See Mot. at 8 n. 23.
3 See id., Ex. Aat1.
4+ See id.
5 Velasco v. Tex. Kenworth Co., 144 S.W.3d 632, 634 (Tex. App.—Dallas 2004, no pet.) (citing
Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 261 (Tex. 1994)).
6 Wilson, 886 S.W.2d at 260.
7 TEX.R. Civ. P. 87(2)(B); Wilson, 886 S.W.2d at 260; Jaska v. Tex. Dep’t of Protective and Reg-
ulatory Servs., 106 S.W.3d 907, 910 (Tex. App.—Dallas 2003, no pet.).
8 Chiriboga, 96 S.W.3d at 678.
9 TEX.R. Civ. P. 87; KW Constr. v. Stephens & Sons Concrete Contractors, 165 S.W.3d 874, 879
(Tex. App.—Texarkana 2005, pet. denied).
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 3facie proof."° “Absent such circumstances, venue in any county other than the plaintiff’s choice is
improper as a matter of law.”
The parties agree venue in this case is governed by the general venue statute, TEX. CIV.
PRAC. & REM. CODE § 15.002(a),!” which provides venue is proper in the county where “all or a
substantial part of the events or omissions giving rise to the claim occurred.” The focus of this
inquiry is whether “the actions or omissions at issue are materially connected to the cause of ac-
tion.”!4 Notably, more than one county may qualify as proper under § 15.002(a)(1) since a sub-
stantial part of the events or omissions giving rise to the claims may occur in more than one
county.!> Thus, if venue is proper in the plaintiff’s chosen county, even if there are venues where
more, or even the most, substantial events occurred, the plaintiff's choice nonetheless controls.1®
ARGUMENT
1. Venue is proper in Dallas County.
Venue is proper in Dallas County because it is a county where a substantial part of the
events and omissions giving rise to Food Global’s claims occurred. First, Food Global’s possessory
right established by its implied bailment contract with JWN arose in Dallas County and JWN
breached the implied bailment contract in Dallas County. Second, Food Global received a number
of communications in Dallas County from JWN and Windrix concerning the raw material they
subsequently stole from Food Global. This constitutes a substantial part of the events and omis-
sions giving rise to Food Global’s claims.
10 KW Constr., 165 S.W.3d at 880.
Yd. (citing Wilson, 886 S.W.2d at 261-62).
2 See Mot. at 6 (“[V]enue over this case is governed by the general venue rule... .”).
3 TEX. CIv. PRAC. & REM. CODE § 15.002(a)(1).
4 Moveforfree.com v. David Hetrick, Inc., 288 S.W.3d 539, 542 (Tex. App.—Houston [14th Dist.]
2009, no pet.).
1 Id.; Velasco, 144 S.W.3d at 634-35.
16 Moveforfree.com, 288 S.W.3d at 542 (citing KW Constr., 165 S.W.3d at 880).
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 41.1. Events and omissions giving rise to Food Global’s breach of implied bailment
contract claim occurred in Dallas County.
Venue is proper in Dallas County under § 15.002 because a substantial amount of events or
omissions giving rise to Food Global’s claim for breach of implied bailment contract occurred in
Dallas County.” Specifically, Food Global’s right of possession over the raw materials arose in
Dallas County, and the breach of the implied bailment contract occurred in Dallas County.
Central to any bailment contract is the bailor’s right of possession over the property subject
to the bailment.1® Subsequently, the place where that right of possession originates can be indica-
tive when determining where proper venue lies. In Smith Steel, the Waco Court of Appeals consid-
ered whether the county of suit was proper under the previous venue provision to hear a claim for
breach of a bailment contract.!° Smith Steel, contesting venue, argued it received and refused Mos-
ley’s demand for return of the bailment property in a separate county, and thus the separate county
was the proper venue to hear the claim.”° The court, however, held it may also rely on where Mos-
ley’s right of possession arose.”! As explained by the Waco Court of Appeals:
[Mosley’s] right was to possession. That right arose out of a bailment which the
evidence shows originated by an agreement between appellant and appellee as to
the use of the patterns made in the county of suit . .. A part of the cause of action
was that interest of appellee in the property which gave rise to or constituted the
basis of its right to possession. That portion of the cause of action having arisen in
the county of suit, the venue fact relied on was established.??
17 Food Global brings this claim in its First Amended Petition, and thus, it must be considered
when determining if venue is proper in Dallas County. See TEX. R. CIv. P. 63; Watson v. City of
Odessa, 893 S.W.2d 197, 200 (Tex. App.—El Paso 1995, writ denied).
18 Smith Steel Casting Co. v. Mosley Mach. Co., 438 S.W.2d 826, 827 (Tex. App.— Waco 1969, writ
dism’d) (“Appellee’s right was to possession. That right arose out of a bailment which the
evidence shows originated by an agreement between appellant and appellee . . . .”).
19 See id. (reviewing appellant’s plea of privilege, the precursor to the challenge to venue under
TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1)).
20 See id.
21 See id.
eee Ta.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 5Thus, because the bailment contract was formed in the county of suit and Mosley’s right of pos-
session related to that bailment originated in that county, venue was deemed proper.”
Here, the bailment contract between Food Global and JWN originated by implication be-
tween the parties when Food Global sent and received communications from JWN concerning the
raw material to be used for the production of Food Global’s products.”* Based on these communi-
cations, the bailment contract, and the subsequent right of possession, arose in Dallas County.
Thus, a substantial portion of the events giving rise to Food Global’s breach of an implied bailment
contract occurred in Dallas County.
Another critical element of Food Global’s claim for breach of implied bailment contract
related to venue is the location of the breach itself. Typically, “every bailment contract contem-
plates the return of the property bailed . . . or its delivery to a third person with the express or
implied consent of the bailor.”?° Thus, if the bailee does not deliver the property directly to the
bailor or to a third person with the bailor’s consent, a breach of the bailment contract occurs.?”
Importantly, courts in Texas have deemed venue proper in a county where an omission occurs that
gives rise to the plaintiff’s claims.” Here, JWN breached the implied bailment contract between it
and Food Global by ignoring its obligation to return the raw material to Food Global via delivery to
DC Logistics.?? Food Global designated DC Logistics—located in Dallas County—as the third
23° See id.
24 See Ex. 2, Declaration of Nicholas Aguilar, at 31, 1 7 (referred herein as “Aguilar Decl.”).
25 See Smith Steel, 438 S.W.2d at 827.
26 See D &D Assocs., Inc. v. Sierra Plastics, Inc., 570 S.W.2d 205, 206 (Tex. App.— Waco 1978, no
writ).
27 See id.
28 See Moveforfree.com, 288 S.W.3d at 542-43 (finding indicative for venue purposes the fact the
omitted action would have occurred in the county chosen by plaintiff for venue); Karen Corp v.
Burlington N. & Santa Fe Ry., 107 S.W.3d 118, 127-28 (Tex. App.—Fort Worth 2003, pet. de-
nied) (finding venue proper in county where omitted actions would have taken place).
29 See Ex. 1-A, Plaintiff's First Amended Petition, at 23-24 (referred herein as “Amended Peti-
tion”); Aguilar Decl., at 31, 7 13.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 6party JWN was to return Food Global’s raw material to.2° Thus, JWN’s failure to deliver the raw
material to DC Logistics constitutes an omission in Dallas County that gives rise to Food Global’s
breach of implied bailment contract claim.
Because Food Global’s right of possession to the raw material subject to the bailment agree-
ment arose in Dallas County, and because JWN’s omission of the delivery of the raw material to
DC Logistics occurred in Dallas County, there are venue facts to establish proper permissive venue
in Dallas County sufficient to mandate the denial of the Motion.
1.2. Food Global received multiple communications in Dallas County regarding
the raw material that ultimately gave rise to its claims.
Venue is further appropriate in Dallas County because Food Global received multiple com-
munications in Dallas County from JWN and Windrix regarding the now-stolen raw material.
Venue can be established in the county where a plaintiff receives communications relating to their
claims.*" Indeed, “the receipt of telephone calls and letters in a particular county weighs in favor
of finding that venue is appropriate in that county.”2? In KW Construction, for example, the court
held Lamar County was a proper venue when the plaintiff received two phone calls in there from
the defendant—one to solicit the plaintiff’s business, and another to discuss the scope of the par-
ties’ eventual contract.*3 Notably, the court in KW Construction declined to transfer the action to
another county even though the defendant’s performance of the contract at issue was entirely in
that county, the plaintiff traveled there to assess the defendant’s work, and the defendant’s place
of business was there.*4 Similarly, in Siemens, the court held venue proper in the county where the
30 See Amended Petition, at 22, 11; Aguilar Decl., at 30, 1 8-10.
31 See Moveforfree.com, 288 S.W.3d at 542-43; Siemens Corp. v. Bartek, No. 03-04-00613-CV, 2006
WL 1126219, at *6-7 (Tex. App.—Austin Apr. 28, 2006, no pet. h.); KW Const., 165 S.W.3d at
882-83.
32 Siemens Corp., 2006 WL 1126219, at *7.
33 See KW Constr., 165 S.W.3d at 882-83.
34 See id.; see also Velasco, 144 S.W.3d at 634 (“If there is any probative evidence that supports
venue in the county of suit, the trial court must deny the transfer. This is true even if the evi-
dence preponderates to the contrary.”) (internal citations omitted).
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 7plaintiff received emails, phone calls, and a letter concerning the subject matter of the plaintiff’s
claims of fraud, fraudulent inducement, and breach of contract.*°
Here, Food Global received several email communications in Dallas County from JWN and
Windrix regarding the purported transfer of Food Global’s raw material to DC Logistics. First, on
February 25, 2019, Windrix emailed Wai Yee Choy (“Choy”), Purchasing and Logistics Manager
for Food Global, and Nick Aguilar (“Aguilar”), Manager of Food Global, to confirm JWN would
begin the process of loading Food Global’s raw material onto trucks for transport to DC Logistics.5°
In the same email, Windrix acknowledged JWN’s familiarity with shipping Food Global’s raw ma-
terial to DC Logistics.” Next, on March 12, 2019, Windrix and John Carleton, JWN’s Warehouse
Manager, emailed Choy and Aguilar from Food Global and confirmed the amount of outstanding
raw material in JWN’s possession that Food Global demanded be shipped to DC Logistics.38 Both
emails give rise to Food Global’s claims because they show JWN and Windrix acknowledging Food
Global’s demand for the raw material, Food Global’s legal ownership of the raw material, and the
past instances where JWN shipped Food Global’s raw material to DC Logistics without issue—all
facts giving rise to Food Global’s conversion claim,” as well as establishing the lack of consent and
intent elements of the Theft Liability Act claim.“°
35 See Siemens Corp., 2006 WL 1126219, at *6; see also Moveforfree.com, 288 S.W.3d at 542-43
(deeming venue in Bexar County proper when plaintiff received communications in Bexar
County misrepresenting the scope and nature of defendant’s services available to the plaintiff).
36 See Aguilar Decl., at 30, 4 10; Ex. 2-A, at 33.
37 See Aguilar Decl., at 30, J 10; Ex. 2-A, at 33.
38 See Aguilar Decl., at 30, 4 11; Ex. 2-A, at 37.
39 See Pierson v. GFH Fin. Servs., 829 S.W.2d 311, 314 (Tex. App.—Austin 1992, no pet.) (“An
act ... is such active interference with the owner’s right of property or control as to deprive
him ofits free use and enjoyment.”) (citing Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 446
(Tex. 1971).
40 See TEX. PEN. CODE § 1.07(a)(11); Thomas v. State, 753 S.W.2d 688, 691-92 (Tex. Crim. App.
1988) (“Appropriation of property is without the owner’s effective consent it . . . it is without
his assent in fact[.]””) (internal citations omitted); TEX. PEN. CODE § 31.03(c)(1) (“[E]vidence
that the actor has previously participated in recent transactions other than, but similar to, that
which the prosecution is based is admissible for the purpose of showing knowledge or intent
and the issues of knowledge or intent are raised by the actor's plea of not guilty.”).
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 8Choy and Aguilar also received a number of emails from JWN concerning the manufacture
of Food Global’s VX-Real Whey Mocha Cappuccino 5 lb. product (the “Product”). From late
January 2019 through March 2019, JWN refused to indicate whether it actually manufactured the
Product as requested by Food Global. On January 31, 2019, Choy and Aguilar received an email
from Gerry Benn, COO of JWN, purporting that JWN would begin the requested manufacture of
the Product after it received proper labels for the Product’s containers.‘ After Choy and Aguilar
requested updates on the production status of the Product, they received another email on Febru-
ary 15, 2019, from Benn stating the sleeves JWN received were “bad” and had to be returned.*?
Choy responded on February 15, 2020, informing JWN it would send new sleeves by the end of
the month.*3 On March 6, 2019, Choy and Aguilar received an email from Juan Cedillo from JWN
stating that JWN still had no update on the manufacture of the Product.*4 Finally, Choy and Agui-
lar received an email from Juan Cedillo stating JWN purportedly produced the Product’s contain-
ers, but once again, there was no indication whether the Product itself had been manufactured.*°
In total, these communications informed Food Global that JWN had not, and likely would not,
manufacture the Product. More importantly, the emails establish Food Global’s claims because
they established JWN would not return the raw material that would have otherwise been used for
the manufacture of the Product. For venue purposes, these emails give rise to Food Global’s con-
version and Theft Liability Act claims because they show JWN’s willingness to wrongfully with-
hold Food Global’s property.
Because Food Global’s right of possession stemming from the implied bailment agreement
originated in Dallas County, JWN stole the raw material that it was otherwise obligated to return
to Food Global in Dallas County, and because Food Global received multiple communications
41 See Aguilar Decl., at 31, 4 15; Ex. 2-B, at 40.
42 See Aguilar Decl., at 31, 16; Ex. 2-B, at 39.
43 See Aguilar Decl., at 31, 4 16; Ex. 2-B, at 39.
44 See Aguilar Decl., at 31, 17; Ex. 2-B, at 39.
45 See Aguilar Decl., at 31, 4 18; Ex. 2-B, at 38.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 9from JWN and Windrix in Dallas County evidencing their intent to steal the raw material, a sub-
stantial portion of the events and omissions giving rise to Food Global’s claims occurred in Dallas
County. Thus, venue is proper in Dallas County, and the Court must deny the Motion.
2. Defendants fail to meet their burden to establish mandatory venue lies in Collin
County.
Defendants failed to meet their burden to establish mandatory venue lies in Collin County.
First, Defendants failed to provide sufficient prima facie evidence to establish Collin County as a
county of mandatory venue. Second, Food Global’s claims in this action lie outside the scope of
the Exclusive Manufacturing Supply Agreement (“MSA”), and thus, the MSA’s forum selection
provision does not establish exclusive venue in Collin County. Third, if the claims did fall within
the scope of the MSA, it would not matter because venue selection clauses are generally unen-
forceable under Texas law. Thus, mandatory venue does not lie in Collin County. Because Dallas
County is a court of proper venue under § 15.002,*° the Court must deny the Motion.
2.1. Defendants fail to present prima facie evidence supporting mandatory venue
in Collin County.
Defendants fail to present valid prima facie evidence supporting mandatory venue in Collin
County. Because Defendants contend mandatory venue lies in Collin County, they must establish
mandatory venue by presenting “prima facie proof.”*” Defendants fail to meet this evidentiary
burden. First, Defendants present a declaration from Windrix that does not satisfy the require-
ments for valid unsworn declarations.** Windrix failed to include in his declaration his date of birth
and his address as required under § 132.001.” As a result, his unsworn declaration is invalid and
46 As noted above, multiple counties may be proper venues for a lawsuit if a substantial part of
the events or omissions giving rise to the claims occurred in each county. See Moveforfree.com,
288 S.W.3d at 542. Thus, if both Dallas and Collin Counties are appropriate permissive venues,
Food Global’s choice of Dallas County must control.
47 Tex. R. Civ. P. 87(3)(c).
48 TEx. Clv. PRAC. & REM. CODE § 132.001.
49 See id.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 10cannot be used to support Defendants’ Motion. Separately, in attempting to support their venue-
selection clause arguments, Defendants submit a unsigned version of the MSA.°° Absent an exe-
cuted and binding version of the MSA, the Court is left without prima facie evidence necessary to
evaluate the application of the MSA’s venue-selection provision. Overall, Defendants lack suffi-
cient valid evidence necessary to uphold their prima facie burden to establish mandatory venue in
Collin County.
2.2. The MSA does not apply to Food Global’s claims.
Defendants incorrectly assert that Collin County has exclusive venue over Food Global’s
claims under the venue-selection clause in the MSA.*! The MSA governed JWN’s manufacture of
Food Global’s products, along with the storage of the raw materials at its warehouses—including
those purchased and owned by Food Global—to be used to manufacture Food Global’s products.>?
The MSA did not govern the return of Food Global’s raw material to it or the transport of Food
Global’s raw materials to third parties. It also does not limit or condition Food Global’s legal own-
ership or possessory rights over its raw materials.*3 Food Global’s claims in this Action relate solely
to JWN and Windrix’s improper theft of the raw material. Thus, Food Global’s claims arise from
JWN and Windrix’s violations of Food Global’s ownership and possessory rights over the raw ma-
terials—wholly separate from the rights and obligations created by the MSA.*4
This action is distinguishable from cases where courts hold forum (not venue) selection
clauses apply to noncontractual claims. Food Global’s claims are not “noncontractual claims” that
would not otherwise exist but for the MSA.*> Likewise, Food Global’s claims do not implicate the
50 See Mot., Ex. B-1.
51 See Mot. at 6.
52 See Mot., Ex. B-1at 1.
53 See generally id.
54 See Steakley v. Round One Investments, LP, No. 01-09-00022-CV, 2012 WL 3628800, at *4
(Tex. App.—Houston [ist Dist.] Aug. 23, 2012, no pet. h) (concluding the parties’ forum se-
lection clause did not apply to plaintiff’s claims because the duties implicated by the plaintiff’s
claims were separate from that created by the parties’ contractual agreement).
55 Cf Pinto Tech. Ventures, LP v. Sheldon, 526 S.W.3d 428, 441 (Tex. 2017) (holding a forum
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 11MSA’s terms, meaning they do not “relate to” the MSA.* Rather, Food Global’s claims arise
from JWN and Windrix’s conduct that occurred outside the scope of Food Global and JWN’s con-
tractual relationship.°’ Thus, the MSA’s venue-selection clause does not apply here, and Food
Global is not restricted to trying its claims in Collin County.*®
Relatedly, it is irrelevant that Food Global stated venue was proper in Collin County in the
operative pleading in the Collin County Action.** Food Global’s admission to proper venue in Col-
lin County and its arguments for proper venue in this action are not mutually exclusive—both can
be true and not require transfer of this case to Collin County. Further, as discussed more in depth
below,” the claims in the present case and the Collin County Action are wholly dissimilar, as they
do not share a common nucleus of facts. Food Global’s venue contentions in the Collin County
Action are not applicable here.
2.3. | Venue-selection clauses are unenforceable under Texas law.
Even if Food Global’s claims fell within the scope of the MSA, mandatory venue still does
not lie in Collin County because venue-selection clauses like the one in the MSA are unenforceable
selection clause applies to noncontractual claims of fraud, breach of fiduciary duty, minority-
shareholder oppression, Texas Blue Sky Law violations, and conspiracy, because the “alleged
grievances emanate from the existence and operation of th[e] agreement.”); In re Bambu Fran-
chising LLC, No. 05-17-00690-CV, 2017 WL 4003428, at *3 (Tex. App.—Dallas Sept. 12, 2017,
no pet. h.) (holding that the forum selection clause applies to the noncontractual claims because
the claims “emanate from the Business Agreement, and the rights and representations in dis-
pute are related to that agreement” and because the claims would otherwise require an inter-
pretation of the agreement at issue to measure their validity).
56 Cf Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 72 (Tex. App.—Dallas
1996, no pet., abrogated on other grounds) (“[A]ll of the claims arise out of the parties’ contrac-
tual relations and necessarily implicate the contracts’ terms. Thus, we conclude the claims ‘re-
late to’ the agreements executed by the parties.”).
57 See Steakley, 2012 WL 3628800, at *4.
58 Even if the MSA applied to Food Global’s claims, it would only apply to JWN. Windrix is not
a party to the MSA in his personal capacity and is thus not subject to the MSA’s venue-selec-
tion provision.
59 See Mot. at 6.
60 See § 4, infra.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 12)under Texas law. The distinction between forum-selection clauses and venue-selection clauses are
critical. Forum-selection clauses are generally enforceable, but “venue selection cannot be the sub-
ject of private contract unless otherwise provided by statute.”®! While the MSA can certainly spec-
ify that all related disputes be heard in a Texas state court, it cannot specify the specific county or
court within that state. Indeed, “any agreement or contract whereby the parties try to extend or
restrict venue is void against public policy.”® Here, the MSA cannot establish Collin County as
the sole venue for Food Global to present any claims potentially related to the MSA’s terms. Thus,
even if the MSA applied to Food Global’s claims, Defendants still cannot satisfy their burden to
establish Collin County as mandatory venue.
Ultimately, Defendants failed to meet their burden to establish mandatory venue over Food
Global’s claims in Collin County. At best, Defendants can only establish permissive venue in Collin
County, which is not enough to warrant transfer if Food Global’s choice of forum is also proper.®*
Accordingly, the Court must deny the Motion and keep the action in Dallas County.
3. The Court need not transfer this action as a matter of convenience.
The Court should deny Defendant’s request for transfer of venue to Collin County based
convenience and the interests of justice. Defendants fail to justify transfer on these grounds be-
cause it fails to establish all three of the following:
6 Liu ». Cici Enters., LP, No. 14-05-00827-CV, 2007 WL 43816, at *2 (Tex. App.—Houston
[14th Dist.] Jan. 9, 2007, no pet. h.); see Jn re New Braunfels Am. Motorcycles, Ltd., No. 03-20-
00285, 2020 WL 2989135, at *1 (Tex. App.—Austin June 2, 2020, no pet. h.); Jn re JP Morgan
Chase Bank, NA, No. 05-17-01174, 2018 WL 1312470, at *4 (Tex. App.—Dallas Mar. 14, 2018,
reh’g denied).
6 See In re Great Lakes Dredge & Dock Co. LLC, 251 S.W.3d 68, 73-74 (Tex. App.—Corpus
Christi 2008, orig. proceeding) (explaining difference between “forum,” which refers to a sov-
ereign or state, and “venue,” which refers to a particular county or court within that sovereign
or state).
63 See Bristol-Myers Squibb Co. v. Goldston, 957 S.W.2d 671, 674 (Tex. App.—Fort Worth 1997,
pet. dism’d by agr.).
64 See Moveforfree.com, 288 S.W.3d at 542.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 13(1) maintenance of the action in the county of suit would work an injustice to the
movant considering the movant's economic and personal hardship;
(2) the balance of interests of all the parties predominates in favor of the action
being brought in the other county; and
(3) the transfer of the action would not work an injustice to any other party.
First, Defendants overstate the economic and personal hardship they will face if the case
remains in Dallas County.®° As Defendants point out, they operate primarily out of Collin County,
which is very close proximity to Dallas County. In fact, the distance from JWN’s facility to the
Dallas County courthouse is only 14 miles further than that between JWN’s facility and the Collin
County courthouse. Likewise, if third-party witnesses are required to appear for depositions or trial
in this action, their travel distance to Dallas County would not be significantly different from that
to Collin County.
Defendants also point out the documents pertinent to the lawsuit are located in Collin
County, but the availability of electronic transfer of documents makes the physical location of
documents a non-issue for venue considerations.®* Clearly, the physical locations of the Dallas
County and Collin County courts are a non-factor when evaluating convenience of venue.
Defendants argue they should not have to defend themselves in two separate counties so to
avoid “undue economic and personal hardships,”
including “the duplication of costs and ef-
forts.” No additional details are provided as to how Defendants would be financially or personally
burdened by maintaining this action in Dallas County.’° Nor do Defendants provide any reasoning
as to how their efforts will be duplicated. Additionally, concerns over duplicative costs and efforts
65 See TEX. CIV. PRAC. & REM. CODE § 15.002(b) (emphasis added).
66 See Mot. at 8-9.
a.
68 See BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., No. 3-08-Cv-1779-L, 2009 WL 918459 at *5
(N.D. Tex. Apr. 3, 2009); Interactive Music Tech., LLC v. Roland Corp. U.S., No. 6:07-cv-282,
2008 WL 245142, at *10 (E.D. Tex. Jan. 29, 2008).
69 See Mot. at 8.
70 See generally id. at 8-9.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 14only warrant a convenience transfer when two separate lawsuits take place with essentially the
same underlying factual allegations.”1 Here, however, the factual issues underlying the action and
those underlying the Collin County Action are dissimilar. This case solely concerns the theft of
Food Global’s raw materials that otherwise should have been transferred to the DC Logistics fa-
cility in Dallas County for Food Global’s further use. In contrast, Food Global’s claims in the Col-
lin County Action relate to the defects discovered in Food Global’s products improperly manufac-
tured by JWN. These claims require an invocation of the MSA’s terms, including those regarding
JWN’s express warranties regarding the quality of its manufactured products.’ Because the claims
in this case and the Collin County Action are so dissimilar, discovery and motion practice in the
actions will have very little to no overlap, and the courts will likely not be asked to enter into po-
tentially contrary factual findings. Thus, Defendants claim that both actions arise out of the same
nucleus of facts is highly disingenuous, and it should not be the basis for a venue transfer.
1 See, e.g., Auto-Drill, Inc. v. Cangrig Drilling Tech. Ltd., No. 6:15-cv-00096, 2015 WL 13691866,
at *2 (W.D. Tex. May 22, 2015) (transferring patent action to avoid “unnecessary duplication
of efforts by two courts” on the same issue, as both cases involved highly similar patent dis-
putes brought by the plaintiff concerning the same well drilling control system); Affinity Labs
of Tex. v. Samsung Elec. Co., 968 F. Supp. 2d 852, 859-60 (E.D. Tex. 2013) (“Transfer . .. would
avoid wasteful duplication of effort by two courts on essentially the same issues.”) (emphasis
added); Nader v. McAuliffe, 549 F. Supp. 2d 760, 764 (E.D. Va. 2008) (citing General Tire &
Rubber Co. v. Watkins, 373 F.2d 361, 362 (4th Cir. 1967)) (“[T]his case should be transferred .
. . to prevent an extravagantly wasteful and useless duplication of the time and effort of the
[courts] by the simultaneous trial of two complex and elaborate cases involving substantially
the same factual issues.””); see also Dornoch Ltd. ex rel. Underwriting Members of Lloyd’s Syndicate
1209 v. PBM Holdings, Inc., 666 F. Supp. 2d 366, 370-72 (S.D.N.Y. 2009) (denying application
of the first-to-file rule and denying transfer of venue on convenience grounds in part because
there would be no duplication of efforts between two concurrently-held cases in separate ven-
ues, as one case involved the underwriters’ contamination policy and the insured’s alleged fail-
ure to cooperate with an insurance investigation, while the other action dealt with an alleged
insurance coverage dispute between the same parties).
72 See generally Mot., Ex. C.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 15Defendants failed to establish all three prongs required under § 15.002(b) to justify transfer
to Collin County on convenience grounds. Thus, Food Global’s choice of venue must not be dis-
turbed.”’ The Court should deny Defendants’ request for a transfer of venue for convenience.
CONCLUSION
For the foregoing reasons, the Court should deny Defendants’ Motion to Transfer Venue
and maintain this action in Dallas County.
June 15, 2020 Respectfully submitted,
GRIFFITH BARBEE PLLC
/s/ Casey Griffith
Casey Griffith
Texas Bar No. 24036687
Casey.Griffith @griffithbarbee.com
Michael Barbee
Texas Bar No. 24082656
Michael.Barbee@griffithbarbee.com
Dallas Flick
Texas Bar No. 24104675
Dallas.Flick@griffithbarbee.com
One Arts Plaza
1722 Routh St., Ste. 710
Dallas, Texas 75201
(214) 446-6020 | main
(214) 446-6021 | fax
Counsel for Plaintiff
73 Perryman, 546 S.W.3d at 130; KW Constr., 165 S.W.3d at 879.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 16Certificate of Service
I certify that on June 15, 2020 a copy of this document was served on all counsel of record
via the Court’s electronic document delivery system and pursuant to the Rules.
/s/ Casey Griffith
Casey Griffith
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 17Cause No. DC-20-04765
Foop GLoBAL INNOVATION GP LLC, IN THE DISTRICT COURT
Plaintiff
v.
160TH JUDICIAL DISTRICT
JW NutTRITIONAL LLC, AND JESSE J
WINDRIX
Defendants.
DALLas County, TEXAS
Appendix in Support of Plaintiff's
Response to Defendants’ Motion to Transfer Venue
Exhibit Document Appendix Pages
1 Declaration of Casey Griffith ae
1-A Plaintiffs First Amended Petition gue
2 Declaration of Nicholas Aguilar 29-32
Emails exchanged between
Ze Wai Yee Choy, Nicholas Aguilar, pare
Jesse Windrix, and John Carleton
2B Emails exchanged between Wai Yee Choy, Bee
Nicholas Aguilar, Gerry Benn, and Juan Cedillo
18Exhibit 1
19Cause No. DC-20-04765
Foop GLosBat INNovaTION GP LLC, IN THE DISTRICT CouRT
Plaintiff
Vv.
160TH JUDICIAL DisTRICT
JW NutrRiTIonat LLC, AnD JESSE J
WINDRIX
Defendants.
Datias County, TEXAS
Declaration of Casey Griffith
i My name is Casey Griffith, my date of birth is April 13, 1972, and my address is 1722
Routh St., Ste. 710, Dallas, Texas, 75201, USA. I declare under penalty of perjury that the
foregoing is true and correct.
2. Attached as Exhibit A is a true and correct copy of Plaintiff's First Amended
Petition filed by Food Global Innovation GP LLC on June 15, 2020.
Executed in Dallas County, State of Texas, on the 15th day of June, 2020.
Casey Griffith
Counsel for Plaintiff Food Global Innovation
GP LLC
20Exhibit 1-A
Cause No. DC-20-04765
Foop GLoBAL INNOVATION GP LLC, IN THE DISTRICT COURT
Plaintiff
i 160TH JUDICIAL DISTRICT
JW NutTRITIONAL LLC AND JESSE
WINDRIX,
Defendants DALLAS CouNTY, TEXAS
Plaintiffs First Amended Petition
Plaintiff Food Global Innovation GP LLC (‘Food Global”) files this First Amended Peti-
tion against Defendants JW Nutritional LLC (“JWN”) and Jesse Windrix (“‘Windrix”’) for: (1)
conversion; (2) breach of implied bailment contract; and (3) violations of the Texas Theft Liability
Act. Food Global states the following in support:
DISCOVERY CONTROL PLAN
le Pursuant to Rule 190.3, Food Global intends to conduct discovery under Level 3.
PARTIES
2. Plaintiff Food Global Innovation GP LLC is a Texas limited liability company, lo-
cated in Dallas County, Texas. Food Global’s sole member is domiciled in Texas.
3. Defendant JW Nutritional LLC is an Oklahoma limited liability company registered
to transact business in Texas. JWN’s sole member, Windrix, is domiciled in Texas.
4. Defendant Jesse Windrix is the sole member and president of JWN. Windrix is
domiciled in Texas.
JURISDICTION AND VENUE
5. Jurisdiction is proper in this Court because the amount in controversy exceeds the
minimum jurisdictional threshold of this Court. Pursuant to Rule 47(c), Food Global seeks mone-
tary relief between $200,000 and $1,000,000.
PLAINTIFF’S FIRST AMENDED PETITION it6. Venue is proper in Dallas County under Texas Civil Practice and Remedies Code
§ 15.002(a)(1) because a substantial part of the events or omissions giving rise to Food Global’s
claims occurred within Dallas County.
BACKGROUND
1. Food Global’s and JWN’s relationship.
i Food Global markets and distributes nutritional and other supplement products un-
der, among other trademarks, the VITAXSTRONG mark. JWN manufactures and packages nu-
tritional and other supplement products.
8. Beginning in 2017, JWN manufactured dietary and nutritional supplement products
for Food Global to then market and distribute.
9. Food Global would purchase certain whey protein raw material from third-party
suppliers and arrange for the raw material to be delivered to JWN to be used to manufacture Food
Global’s products.
10. | JWN would store excess amounts of Food Global’s raw material in its warehouse.
JWN would then use the excess raw material to manufacture additional products based on Food
Global’s direction.
2. JWN steals raw material from Food Global.
11. In April 2018, Food Global placed an order for JWN to manufacture Food Global’s
VITAXTRONG products, including 1,500 units of the VX-Real Whey Mocha Cappuccino 5 Ib
product (the “Real Whey Mocha Product”). Food Global provided JWN the raw material neces-
sary to produce the Real Whey Mocha Product—approximately 7,230 pounds.
12. On January 15, 2019, Food Global requested from JWN an update on the produc-
tion status of the Real Whey Mocha Product. JWN emailed Food Global on January 31, 2019 and
stated the Real Whey Mocha Product would be put on JWN’s schedule for manufacture after it
received proper labels for the Real Whey Mocha Product’s containers.
PLAINTIFF’S FIRST AMENDED PETITION 2)13. Food Global sent similar status update requests on at least February 11, 2019, Feb-
ruary 14, 2019, and March 6, 2019. At no point did Windrix or JWN indicate whether it actually
manufactured the Real Whey Mocha Product.
14. Separately, in February and March 2019, Food Global and JWN coordinated the
transportation of the entirety of Food Global’s raw material held in JWN’s warehouse to a facility
operated by DC Logistics, a third-party warehousing and distribution service. The DC Logistics
facility was located at 510 Peachtree Road, Suite 100, Mesquite, Texas 75149, in Dallas County,
Texas.
15. In previous instances, JWN shipped Food Global’s raw material without issue to
third-party storage facilities and/or manufacturers so different third parties could manufacture
Food Global’s products.
16. —_ In an email to Food Global on February 25, 2019, Windrix informed Food Global
that JWN would begin to prepare the shipment of Food Global’s raw material to DC Logistics.
17 On March 11, 2019, Food Global informed Windrix and John Carleton, JWN’s
Warehouse Manager, via email that JWN was in possession of 16,519 pounds of Food Global’s raw
material. On March 12, 2019, Windrix and Carleton responded to Food Global and agreed with
Food Global’s calculation of the outstanding raw material to be transported to DC Logistics.
18. Food Global then demanded JWN turn over the raw material to Food Global via
transfer to DC Logistics. Despite Windrix agreeing to the amount of raw material owed to Food
Global, JWN never complied with Food Global’s demand.
19. Intotal, JWN and Windrix stole at least 23,808 pounds of raw material from Food
Global.
20. Food Global paid significant sums to purchase the raw material from its third-party
supplier that was stolen by JWN. Thus, Food Global has been directly damaged by JWN’s miscon-
duct.
PLAINTIFF’S FIRST AMENDED PETITION 3CAUSES OF ACTION
Count 1: Conversion/Civil Theft (WN and Windrix)
21. Food Global incorporates by reference the preceding paragraphs.
22. Food Global owned and had possessory rights over the raw material stolen by JWN
and Windrix, which constitutes Food Global’s personal property. Food Global purchased the raw
material from its third-party supplier, had the product shipped directly from the supplier to JWN
for the manufacture of Food Global products, and permitted JWN to store excess amounts of raw
material in JWN’s warehouse to be used for future work orders.
23. In 2019, JWN and Windrix also acknowledged JWN possessed the raw material
Food Global demanded be returned. However, JWN never returned the raw material to Food
Global.
24, | JWN and Windrix’s intentional conduct was both willful and malicious. Both JWN
and Windrix knew, or should have reasonably known, JWN no longer had a legal right to keep the
raw material, yet they refused to return the raw material to Food Global.
25. _ Inprevious instances, JWN shipped Food Global’s raw material to third-party stor-
age and manufacturing facilities without issue. JWN and Windrix acted intentionally in this in-
stance by not turning over the raw material.
26. Food Global sustained damages from JWN and Windrix’s conduct in the form of
the lost value of the stolen raw material. Food Global also sustained damages from its loss of use of
the stolen raw material for other work orders and subsequent sales of its products.
27. Accordingly, Food Global seeks its actual damages, pre- and post-judgment inter-
est, and court costs. Food Global also seeks exemplary damages based on JWN’s willful and mali-
cious conduct described above.
Count 2: Breach of Implied Bailment Contract (JWN)
28. Food Global incorporates by reference the preceding paragraphs.
29. Food Global and JWN entered into a valid, enforceable implied bailment contract
under which JWN agreed to accept and safely keep possession of Food Global’s raw material in
PLAINTIFF’S FIRST AMENDED PETITION 4the normal course of and as an incident of JWN’s manufacturing business, in which it makes a
profit.
30. Food Global arranged for transfer of its raw material to JWN’s facility, pursuant to
their bailment contract.
31. | JWN accepted the raw material pursuant to the bailment contract.
32. Food Global demanded JWN return the raw material on or around February 2019.
Food Global specifically demanded JWN send the raw material to DC Logistics, a third-party ware-
housing company located in Dallas county that would store the raw material on behalf of Food
Global.
33. JWN failed to comply with its obligation to return the raw material.
34. | JWN’s conduct constitutes a breach of the parties’ implied bailment contract.
35. Food Global has suffered damages as a direct, proximate result of JWN’s breach.
Food Global seeks its actual damages, pre- and post-judgment interest, and court costs.
Count 3: Violations of the Texas Theft and Liability Act (WN and Windrix)
36. Food Global incorporates by reference the preceding paragraphs.
37. Food Global maintained a greater right of possession over the raw material than
JWN. Food Global purchased the raw material from its third-party supplier, had the product
shipped directly from the supplier to JWN for the manufacture of Food Global products, and per-
mitted JWN to store excess amounts of raw material in JWN’s warehouse to be used for future
work orders.
38. | JWN and Windrix unlawfully appropriated Food Global’s raw material with an in-
tent to deprive it of the raw material and without its consent. See TEX. PEN. CODE § 31.03. To Food
Global’s current knowledge, the value of its stolen raw material was more than $30,000 but less
than $100,000, making JWN’s theft a third-degree felony. Id. § 31.03(f)(1).
39. Food Global sustained damages as a result of JWN and Windrix’s actions. It seeks
its actual damages, additional statutory damages of $1,000, attorneys’ fees and expenses, pre- and
PLAINTIFF’S FIRST AMENDED PETITION
Preview
FILED 6/15/2020 10:01 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Lafonda Sims DEPUTY Cause No. DC-20-04765 Foop GLoBAL INNOVATION GP LLC, IN THE DISTRICT COURT Plaintiff Vv. 160TH JUDICIAL DISTRICT JW NuTRITIONAL LLC AND JESSE J WINDRIX, Defendants DALLAs County, TEXAS Plaintiffs Response to Defendants’ Motion to Transfer Venue Plaintiff Food Global Innovation GP LLC (‘Food Global”) files this Response to Defend- ants JW Nutritional LLC (“JWN”) and Jesse Windrix’s April 17, 2020 Motion to Transfer Venue (the “Motion”.TABLE OF CONTENTS TABLE OF CONTENTS ..........csscecsscecseeseseescsceecscnececsenecsesecscoeseeeeeeeees I SUMMARY OF THE ARGUMENT. ..........ccecsececsececeececeeseceeeeeceeeeceeeeees 1 FACTUAL BACKGROUND ...........sceseccseccecsccscecnececseesceseusessessceseecess 2 STANDARD ... 3 ARGUMENT. .........cecsecececnscscneescnscnceecscsenseneescnenseseneeecesesensaesneaeeeeees 4 1. Venue is proper in Dallas County ..........scessesssesseeseesseseessessesneesessseesesseeseseeseesnesnes 4 1.1. Events and omissions giving rise to Food Global’s breach of implied bailment contract claim occurred in Dallas County ............s0s0000+ 5 1.2. Food Global received multiple communications in Dallas County regarding the raw material that ultimately gave rise to its CLAIMS... eesesssecsesseessesseessceseessessesseesecsnessessessecssctsessssaessecsecsncsneessessseaeessseaees 7 2. Defendants fail to meet their burden to establish mandatory venue lies In Collin County ......csssessssessessesssssssssessessssssssssssssssscsessesscsessesssessesseessessesessesnssesee 10 2.1. Defendants fail to present prima facie evidence supporting mandatory venue in Collin County .........ccssssssessesssessesseessesseeeeseesnessesseeess 10 2.2. | The MSA does not apply to Food Global’s claims .........ssssssssssessesseeseesnes ll 2.3. Venue-selection clauses are unenforceable under Texas law... 3 The Court need not transfer the Action as a matter of convenience. .. CONCLUSION.........cscsecscssscssrecsseeescesencseneeseeceeceeneesesensseseeneeeenees 16 PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE iSUMMARY OF THE ARGUMENT Venue in this Court is proper because a substantial part of the events or omissions giving rise to Food Global’s claims occurred in Dallas County. Specifically, Food Global’s right of pos- session to its raw material stemming from its implied bailment contract with JWN arose in Dallas County and JWN subsequently breached that contract by refusing to return Food Global’s raw material to it in Dallas County. Further, Food Global received multiple communications in Dallas County from JWN and Windrix concerning the now-stolen raw material that gave rise to Food Global’s claims. As such, Dallas is a proper venue under the general venue statute. Contrary to Defendants’ argument, Collin County is not a mandatory venue for this case. As an initial matter, Defendants fail to meet their evidentiary burden to establish mandatory venue because they do not present prima facie evidence to support their mandatory venue claims. Next, Food Global’s claims in this action do not fall within the scope of Food Global and JWN’s Exclu- sive Manufacturing Supply Agreement (““MSA”), meaning the MSA’s venue-selection clause does not apply to this case. Even if, however, the MSA applied to Food Global’s claims, its venue selection clause is unenforceable under Texas state law, rendering it inapplicable. Because manda- tory venue does not lie in Collin County, Food Global’s choice of venue—Dallas County—must not be disturbed. Finally, the Court should not transfer this case to Collin County out of convenience or to avoid injustice to the parties. Defendants fail to establish all three prongs of § 15.002(b): (1) they do not sufficiently demonstrate how they would encounter economic or personal hardship as a result of this action remaining in Dallas County; (2) they do not demonstrate how the balance of interests weigh in favor of transfer to Collin County; and (3) they do not show how there would be an injustice on any party as a result of the action remaining in Dallas County. Accordingly, the Court must deny the Motion and maintain this action in Dallas County. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 1FACTUAL BACKGROUND Food Global is a Dallas-based company that markets and distributes dietary and nutritional supplement products under, among other trademarks, VITAXTRONG. JWN is a Texas-based manufacturer of food products. Windrix is the sole member of JWN. Food Global previously worked with JWN to facilitate the manufacture of Food Global’s VITAXTRONG products. Part of this working relationship required Food Global to purchase raw materials from third-party suppliers and coordinate the delivery of the raw materials to JWN to be used for the manufacture of the VITAXTRONG products. Food Global would inform JWN that its raw material was being shipped to JWN, then JWN would confirm receipt of the raw material and use and store it as needed. In previous instances, at Food Global’s request, JWN would return Food Global’s raw materials to it by shipping them to other designated third-party warehousing or manufacturing companies. In early 2019, Food Global and JWN coordinated the transportation of Food Global’s raw material used to manufacture VITAXTRONG products from JWN’s facility to DC Logistics, a third party used by Food Global for the storage of its raw material. The DC Logistics facility was located in Dallas County. In February 2020, Windrix confirmed to Food Global that JWN would begin to prepare the shipment of the raw material to DC Logistics. In March 2020, Windrix con- firmed JWN held 16,519 pounds of Food Global’s raw material that required transport. Despite Windrix’s assurances, however, JWN and Windrix never transported Food Global’s raw material to DC Logistics in Dallas County. Food Global later confirmed JWN withheld an additional 7,230 pounds of raw material that was never used for the manufacture of one of Food Global’s products by JWN. Thus, JWN and Windrix knowingly and intentionally stole over 23,000 pounds of raw material from Dallas-based Food Global. On March 20, 2020, Food Global filed this action against JWN and Windrix for conversion and violations of the Theft Liability Act.! On April 17, 2020, Defendants filed the present Motion 1 Food Global filed its First Amended Petition on June 15, 2020, and it added a claim for breach of implied bailment contract. See Ex. 1. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 2)to Transfer Venue. Defendants argue, inter alia, the action should be transferred to Collin County to be ostensibly merged with a separate, concurrent action between the parties (the “Collin County Action”).? Food Global initiated the Collin County Action on October 28, 2020, asserting claims against JWN and Windrix for breach of express warranty, breach of contract, and fraud by nondis- closure.’ The claims in the Collin County Action stem from JWN’s manufacture of defective food products intended for sale by Food Global and JWN’s refusal to follow the dispute resolution pro- cedures outlined in the MSA. The claims and underlying facts in the Collin County Action are wholly unrelated to the claims and underlying facts in this suit. STANDARD It is well established that the plaintiff “has the first choice to fix venue in a proper county.”> Venue may be proper in many counties under general, permissive, or mandatory venue rules.® When, as here, the defendant challenges the plaintiff’s venue choice, the plaintiff need only pre- sent prima facie proof venue is proper where it filed suit.” The plaintiff’s prima facie proof, which is based on pleadings and affidavits, is not subject to rebuttal, cross-examination, impeachment, or disproof.® The Court must assume the pleadings and affidavits are true. If, based on this infor- mation, venue is proper, the trial court must maintain venue unless a mandatory venue provision applies or the defendant presents “conclusive evidence” that “destroy[s]” the plaintiff’s prima 2 See Mot. at 8 n. 23. 3 See id., Ex. Aat1. 4+ See id. 5 Velasco v. Tex. Kenworth Co., 144 S.W.3d 632, 634 (Tex. App.—Dallas 2004, no pet.) (citing Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 261 (Tex. 1994)). 6 Wilson, 886 S.W.2d at 260. 7 TEX.R. Civ. P. 87(2)(B); Wilson, 886 S.W.2d at 260; Jaska v. Tex. Dep’t of Protective and Reg- ulatory Servs., 106 S.W.3d 907, 910 (Tex. App.—Dallas 2003, no pet.). 8 Chiriboga, 96 S.W.3d at 678. 9 TEX.R. Civ. P. 87; KW Constr. v. Stephens & Sons Concrete Contractors, 165 S.W.3d 874, 879 (Tex. App.—Texarkana 2005, pet. denied). PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 3facie proof."° “Absent such circumstances, venue in any county other than the plaintiff’s choice is improper as a matter of law.” The parties agree venue in this case is governed by the general venue statute, TEX. CIV. PRAC. & REM. CODE § 15.002(a),!” which provides venue is proper in the county where “all or a substantial part of the events or omissions giving rise to the claim occurred.” The focus of this inquiry is whether “the actions or omissions at issue are materially connected to the cause of ac- tion.”!4 Notably, more than one county may qualify as proper under § 15.002(a)(1) since a sub- stantial part of the events or omissions giving rise to the claims may occur in more than one county.!> Thus, if venue is proper in the plaintiff’s chosen county, even if there are venues where more, or even the most, substantial events occurred, the plaintiff's choice nonetheless controls.1® ARGUMENT 1. Venue is proper in Dallas County. Venue is proper in Dallas County because it is a county where a substantial part of the events and omissions giving rise to Food Global’s claims occurred. First, Food Global’s possessory right established by its implied bailment contract with JWN arose in Dallas County and JWN breached the implied bailment contract in Dallas County. Second, Food Global received a number of communications in Dallas County from JWN and Windrix concerning the raw material they subsequently stole from Food Global. This constitutes a substantial part of the events and omis- sions giving rise to Food Global’s claims. 10 KW Constr., 165 S.W.3d at 880. Yd. (citing Wilson, 886 S.W.2d at 261-62). 2 See Mot. at 6 (“[V]enue over this case is governed by the general venue rule... .”). 3 TEX. CIv. PRAC. & REM. CODE § 15.002(a)(1). 4 Moveforfree.com v. David Hetrick, Inc., 288 S.W.3d 539, 542 (Tex. App.—Houston [14th Dist.] 2009, no pet.). 1 Id.; Velasco, 144 S.W.3d at 634-35. 16 Moveforfree.com, 288 S.W.3d at 542 (citing KW Constr., 165 S.W.3d at 880). PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 41.1. Events and omissions giving rise to Food Global’s breach of implied bailment contract claim occurred in Dallas County. Venue is proper in Dallas County under § 15.002 because a substantial amount of events or omissions giving rise to Food Global’s claim for breach of implied bailment contract occurred in Dallas County.” Specifically, Food Global’s right of possession over the raw materials arose in Dallas County, and the breach of the implied bailment contract occurred in Dallas County. Central to any bailment contract is the bailor’s right of possession over the property subject to the bailment.1® Subsequently, the place where that right of possession originates can be indica- tive when determining where proper venue lies. In Smith Steel, the Waco Court of Appeals consid- ered whether the county of suit was proper under the previous venue provision to hear a claim for breach of a bailment contract.!° Smith Steel, contesting venue, argued it received and refused Mos- ley’s demand for return of the bailment property in a separate county, and thus the separate county was the proper venue to hear the claim.”° The court, however, held it may also rely on where Mos- ley’s right of possession arose.”! As explained by the Waco Court of Appeals: [Mosley’s] right was to possession. That right arose out of a bailment which the evidence shows originated by an agreement between appellant and appellee as to the use of the patterns made in the county of suit . .. A part of the cause of action was that interest of appellee in the property which gave rise to or constituted the basis of its right to possession. That portion of the cause of action having arisen in the county of suit, the venue fact relied on was established.?? 17 Food Global brings this claim in its First Amended Petition, and thus, it must be considered when determining if venue is proper in Dallas County. See TEX. R. CIv. P. 63; Watson v. City of Odessa, 893 S.W.2d 197, 200 (Tex. App.—El Paso 1995, writ denied). 18 Smith Steel Casting Co. v. Mosley Mach. Co., 438 S.W.2d 826, 827 (Tex. App.— Waco 1969, writ dism’d) (“Appellee’s right was to possession. That right arose out of a bailment which the evidence shows originated by an agreement between appellant and appellee . . . .”). 19 See id. (reviewing appellant’s plea of privilege, the precursor to the challenge to venue under TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1)). 20 See id. 21 See id. eee Ta. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 5Thus, because the bailment contract was formed in the county of suit and Mosley’s right of pos- session related to that bailment originated in that county, venue was deemed proper.” Here, the bailment contract between Food Global and JWN originated by implication be- tween the parties when Food Global sent and received communications from JWN concerning the raw material to be used for the production of Food Global’s products.”* Based on these communi- cations, the bailment contract, and the subsequent right of possession, arose in Dallas County. Thus, a substantial portion of the events giving rise to Food Global’s breach of an implied bailment contract occurred in Dallas County. Another critical element of Food Global’s claim for breach of implied bailment contract related to venue is the location of the breach itself. Typically, “every bailment contract contem- plates the return of the property bailed . . . or its delivery to a third person with the express or implied consent of the bailor.”?° Thus, if the bailee does not deliver the property directly to the bailor or to a third person with the bailor’s consent, a breach of the bailment contract occurs.?” Importantly, courts in Texas have deemed venue proper in a county where an omission occurs that gives rise to the plaintiff’s claims.” Here, JWN breached the implied bailment contract between it and Food Global by ignoring its obligation to return the raw material to Food Global via delivery to DC Logistics.?? Food Global designated DC Logistics—located in Dallas County—as the third 23° See id. 24 See Ex. 2, Declaration of Nicholas Aguilar, at 31, 1 7 (referred herein as “Aguilar Decl.”). 25 See Smith Steel, 438 S.W.2d at 827. 26 See D &D Assocs., Inc. v. Sierra Plastics, Inc., 570 S.W.2d 205, 206 (Tex. App.— Waco 1978, no writ). 27 See id. 28 See Moveforfree.com, 288 S.W.3d at 542-43 (finding indicative for venue purposes the fact the omitted action would have occurred in the county chosen by plaintiff for venue); Karen Corp v. Burlington N. & Santa Fe Ry., 107 S.W.3d 118, 127-28 (Tex. App.—Fort Worth 2003, pet. de- nied) (finding venue proper in county where omitted actions would have taken place). 29 See Ex. 1-A, Plaintiff's First Amended Petition, at 23-24 (referred herein as “Amended Peti- tion”); Aguilar Decl., at 31, 7 13. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 6party JWN was to return Food Global’s raw material to.2° Thus, JWN’s failure to deliver the raw material to DC Logistics constitutes an omission in Dallas County that gives rise to Food Global’s breach of implied bailment contract claim. Because Food Global’s right of possession to the raw material subject to the bailment agree- ment arose in Dallas County, and because JWN’s omission of the delivery of the raw material to DC Logistics occurred in Dallas County, there are venue facts to establish proper permissive venue in Dallas County sufficient to mandate the denial of the Motion. 1.2. Food Global received multiple communications in Dallas County regarding the raw material that ultimately gave rise to its claims. Venue is further appropriate in Dallas County because Food Global received multiple com- munications in Dallas County from JWN and Windrix regarding the now-stolen raw material. Venue can be established in the county where a plaintiff receives communications relating to their claims.*" Indeed, “the receipt of telephone calls and letters in a particular county weighs in favor of finding that venue is appropriate in that county.”2? In KW Construction, for example, the court held Lamar County was a proper venue when the plaintiff received two phone calls in there from the defendant—one to solicit the plaintiff’s business, and another to discuss the scope of the par- ties’ eventual contract.*3 Notably, the court in KW Construction declined to transfer the action to another county even though the defendant’s performance of the contract at issue was entirely in that county, the plaintiff traveled there to assess the defendant’s work, and the defendant’s place of business was there.*4 Similarly, in Siemens, the court held venue proper in the county where the 30 See Amended Petition, at 22, 11; Aguilar Decl., at 30, 1 8-10. 31 See Moveforfree.com, 288 S.W.3d at 542-43; Siemens Corp. v. Bartek, No. 03-04-00613-CV, 2006 WL 1126219, at *6-7 (Tex. App.—Austin Apr. 28, 2006, no pet. h.); KW Const., 165 S.W.3d at 882-83. 32 Siemens Corp., 2006 WL 1126219, at *7. 33 See KW Constr., 165 S.W.3d at 882-83. 34 See id.; see also Velasco, 144 S.W.3d at 634 (“If there is any probative evidence that supports venue in the county of suit, the trial court must deny the transfer. This is true even if the evi- dence preponderates to the contrary.”) (internal citations omitted). PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 7plaintiff received emails, phone calls, and a letter concerning the subject matter of the plaintiff’s claims of fraud, fraudulent inducement, and breach of contract.*° Here, Food Global received several email communications in Dallas County from JWN and Windrix regarding the purported transfer of Food Global’s raw material to DC Logistics. First, on February 25, 2019, Windrix emailed Wai Yee Choy (“Choy”), Purchasing and Logistics Manager for Food Global, and Nick Aguilar (“Aguilar”), Manager of Food Global, to confirm JWN would begin the process of loading Food Global’s raw material onto trucks for transport to DC Logistics.5° In the same email, Windrix acknowledged JWN’s familiarity with shipping Food Global’s raw ma- terial to DC Logistics.” Next, on March 12, 2019, Windrix and John Carleton, JWN’s Warehouse Manager, emailed Choy and Aguilar from Food Global and confirmed the amount of outstanding raw material in JWN’s possession that Food Global demanded be shipped to DC Logistics.38 Both emails give rise to Food Global’s claims because they show JWN and Windrix acknowledging Food Global’s demand for the raw material, Food Global’s legal ownership of the raw material, and the past instances where JWN shipped Food Global’s raw material to DC Logistics without issue—all facts giving rise to Food Global’s conversion claim,” as well as establishing the lack of consent and intent elements of the Theft Liability Act claim.“° 35 See Siemens Corp., 2006 WL 1126219, at *6; see also Moveforfree.com, 288 S.W.3d at 542-43 (deeming venue in Bexar County proper when plaintiff received communications in Bexar County misrepresenting the scope and nature of defendant’s services available to the plaintiff). 36 See Aguilar Decl., at 30, 4 10; Ex. 2-A, at 33. 37 See Aguilar Decl., at 30, J 10; Ex. 2-A, at 33. 38 See Aguilar Decl., at 30, 4 11; Ex. 2-A, at 37. 39 See Pierson v. GFH Fin. Servs., 829 S.W.2d 311, 314 (Tex. App.—Austin 1992, no pet.) (“An act ... is such active interference with the owner’s right of property or control as to deprive him ofits free use and enjoyment.”) (citing Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 446 (Tex. 1971). 40 See TEX. PEN. CODE § 1.07(a)(11); Thomas v. State, 753 S.W.2d 688, 691-92 (Tex. Crim. App. 1988) (“Appropriation of property is without the owner’s effective consent it . . . it is without his assent in fact[.]””) (internal citations omitted); TEX. PEN. CODE § 31.03(c)(1) (“[E]vidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor's plea of not guilty.”). PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 8Choy and Aguilar also received a number of emails from JWN concerning the manufacture of Food Global’s VX-Real Whey Mocha Cappuccino 5 lb. product (the “Product”). From late January 2019 through March 2019, JWN refused to indicate whether it actually manufactured the Product as requested by Food Global. On January 31, 2019, Choy and Aguilar received an email from Gerry Benn, COO of JWN, purporting that JWN would begin the requested manufacture of the Product after it received proper labels for the Product’s containers.‘ After Choy and Aguilar requested updates on the production status of the Product, they received another email on Febru- ary 15, 2019, from Benn stating the sleeves JWN received were “bad” and had to be returned.*? Choy responded on February 15, 2020, informing JWN it would send new sleeves by the end of the month.*3 On March 6, 2019, Choy and Aguilar received an email from Juan Cedillo from JWN stating that JWN still had no update on the manufacture of the Product.*4 Finally, Choy and Agui- lar received an email from Juan Cedillo stating JWN purportedly produced the Product’s contain- ers, but once again, there was no indication whether the Product itself had been manufactured.*° In total, these communications informed Food Global that JWN had not, and likely would not, manufacture the Product. More importantly, the emails establish Food Global’s claims because they established JWN would not return the raw material that would have otherwise been used for the manufacture of the Product. For venue purposes, these emails give rise to Food Global’s con- version and Theft Liability Act claims because they show JWN’s willingness to wrongfully with- hold Food Global’s property. Because Food Global’s right of possession stemming from the implied bailment agreement originated in Dallas County, JWN stole the raw material that it was otherwise obligated to return to Food Global in Dallas County, and because Food Global received multiple communications 41 See Aguilar Decl., at 31, 4 15; Ex. 2-B, at 40. 42 See Aguilar Decl., at 31, 16; Ex. 2-B, at 39. 43 See Aguilar Decl., at 31, 4 16; Ex. 2-B, at 39. 44 See Aguilar Decl., at 31, 17; Ex. 2-B, at 39. 45 See Aguilar Decl., at 31, 4 18; Ex. 2-B, at 38. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 9from JWN and Windrix in Dallas County evidencing their intent to steal the raw material, a sub- stantial portion of the events and omissions giving rise to Food Global’s claims occurred in Dallas County. Thus, venue is proper in Dallas County, and the Court must deny the Motion. 2. Defendants fail to meet their burden to establish mandatory venue lies in Collin County. Defendants failed to meet their burden to establish mandatory venue lies in Collin County. First, Defendants failed to provide sufficient prima facie evidence to establish Collin County as a county of mandatory venue. Second, Food Global’s claims in this action lie outside the scope of the Exclusive Manufacturing Supply Agreement (“MSA”), and thus, the MSA’s forum selection provision does not establish exclusive venue in Collin County. Third, if the claims did fall within the scope of the MSA, it would not matter because venue selection clauses are generally unen- forceable under Texas law. Thus, mandatory venue does not lie in Collin County. Because Dallas County is a court of proper venue under § 15.002,*° the Court must deny the Motion. 2.1. Defendants fail to present prima facie evidence supporting mandatory venue in Collin County. Defendants fail to present valid prima facie evidence supporting mandatory venue in Collin County. Because Defendants contend mandatory venue lies in Collin County, they must establish mandatory venue by presenting “prima facie proof.”*” Defendants fail to meet this evidentiary burden. First, Defendants present a declaration from Windrix that does not satisfy the require- ments for valid unsworn declarations.** Windrix failed to include in his declaration his date of birth and his address as required under § 132.001.” As a result, his unsworn declaration is invalid and 46 As noted above, multiple counties may be proper venues for a lawsuit if a substantial part of the events or omissions giving rise to the claims occurred in each county. See Moveforfree.com, 288 S.W.3d at 542. Thus, if both Dallas and Collin Counties are appropriate permissive venues, Food Global’s choice of Dallas County must control. 47 Tex. R. Civ. P. 87(3)(c). 48 TEx. Clv. PRAC. & REM. CODE § 132.001. 49 See id. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 10cannot be used to support Defendants’ Motion. Separately, in attempting to support their venue- selection clause arguments, Defendants submit a unsigned version of the MSA.°° Absent an exe- cuted and binding version of the MSA, the Court is left without prima facie evidence necessary to evaluate the application of the MSA’s venue-selection provision. Overall, Defendants lack suffi- cient valid evidence necessary to uphold their prima facie burden to establish mandatory venue in Collin County. 2.2. The MSA does not apply to Food Global’s claims. Defendants incorrectly assert that Collin County has exclusive venue over Food Global’s claims under the venue-selection clause in the MSA.*! The MSA governed JWN’s manufacture of Food Global’s products, along with the storage of the raw materials at its warehouses—including those purchased and owned by Food Global—to be used to manufacture Food Global’s products.>? The MSA did not govern the return of Food Global’s raw material to it or the transport of Food Global’s raw materials to third parties. It also does not limit or condition Food Global’s legal own- ership or possessory rights over its raw materials.*3 Food Global’s claims in this Action relate solely to JWN and Windrix’s improper theft of the raw material. Thus, Food Global’s claims arise from JWN and Windrix’s violations of Food Global’s ownership and possessory rights over the raw ma- terials—wholly separate from the rights and obligations created by the MSA.*4 This action is distinguishable from cases where courts hold forum (not venue) selection clauses apply to noncontractual claims. Food Global’s claims are not “noncontractual claims” that would not otherwise exist but for the MSA.*> Likewise, Food Global’s claims do not implicate the 50 See Mot., Ex. B-1. 51 See Mot. at 6. 52 See Mot., Ex. B-1at 1. 53 See generally id. 54 See Steakley v. Round One Investments, LP, No. 01-09-00022-CV, 2012 WL 3628800, at *4 (Tex. App.—Houston [ist Dist.] Aug. 23, 2012, no pet. h) (concluding the parties’ forum se- lection clause did not apply to plaintiff’s claims because the duties implicated by the plaintiff’s claims were separate from that created by the parties’ contractual agreement). 55 Cf Pinto Tech. Ventures, LP v. Sheldon, 526 S.W.3d 428, 441 (Tex. 2017) (holding a forum PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 11MSA’s terms, meaning they do not “relate to” the MSA.* Rather, Food Global’s claims arise from JWN and Windrix’s conduct that occurred outside the scope of Food Global and JWN’s con- tractual relationship.°’ Thus, the MSA’s venue-selection clause does not apply here, and Food Global is not restricted to trying its claims in Collin County.*® Relatedly, it is irrelevant that Food Global stated venue was proper in Collin County in the operative pleading in the Collin County Action.** Food Global’s admission to proper venue in Col- lin County and its arguments for proper venue in this action are not mutually exclusive—both can be true and not require transfer of this case to Collin County. Further, as discussed more in depth below,” the claims in the present case and the Collin County Action are wholly dissimilar, as they do not share a common nucleus of facts. Food Global’s venue contentions in the Collin County Action are not applicable here. 2.3. | Venue-selection clauses are unenforceable under Texas law. Even if Food Global’s claims fell within the scope of the MSA, mandatory venue still does not lie in Collin County because venue-selection clauses like the one in the MSA are unenforceable selection clause applies to noncontractual claims of fraud, breach of fiduciary duty, minority- shareholder oppression, Texas Blue Sky Law violations, and conspiracy, because the “alleged grievances emanate from the existence and operation of th[e] agreement.”); In re Bambu Fran- chising LLC, No. 05-17-00690-CV, 2017 WL 4003428, at *3 (Tex. App.—Dallas Sept. 12, 2017, no pet. h.) (holding that the forum selection clause applies to the noncontractual claims because the claims “emanate from the Business Agreement, and the rights and representations in dis- pute are related to that agreement” and because the claims would otherwise require an inter- pretation of the agreement at issue to measure their validity). 56 Cf Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 72 (Tex. App.—Dallas 1996, no pet., abrogated on other grounds) (“[A]ll of the claims arise out of the parties’ contrac- tual relations and necessarily implicate the contracts’ terms. Thus, we conclude the claims ‘re- late to’ the agreements executed by the parties.”). 57 See Steakley, 2012 WL 3628800, at *4. 58 Even if the MSA applied to Food Global’s claims, it would only apply to JWN. Windrix is not a party to the MSA in his personal capacity and is thus not subject to the MSA’s venue-selec- tion provision. 59 See Mot. at 6. 60 See § 4, infra. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 12)under Texas law. The distinction between forum-selection clauses and venue-selection clauses are critical. Forum-selection clauses are generally enforceable, but “venue selection cannot be the sub- ject of private contract unless otherwise provided by statute.”®! While the MSA can certainly spec- ify that all related disputes be heard in a Texas state court, it cannot specify the specific county or court within that state. Indeed, “any agreement or contract whereby the parties try to extend or restrict venue is void against public policy.”® Here, the MSA cannot establish Collin County as the sole venue for Food Global to present any claims potentially related to the MSA’s terms. Thus, even if the MSA applied to Food Global’s claims, Defendants still cannot satisfy their burden to establish Collin County as mandatory venue. Ultimately, Defendants failed to meet their burden to establish mandatory venue over Food Global’s claims in Collin County. At best, Defendants can only establish permissive venue in Collin County, which is not enough to warrant transfer if Food Global’s choice of forum is also proper.®* Accordingly, the Court must deny the Motion and keep the action in Dallas County. 3. The Court need not transfer this action as a matter of convenience. The Court should deny Defendant’s request for transfer of venue to Collin County based convenience and the interests of justice. Defendants fail to justify transfer on these grounds be- cause it fails to establish all three of the following: 6 Liu ». Cici Enters., LP, No. 14-05-00827-CV, 2007 WL 43816, at *2 (Tex. App.—Houston [14th Dist.] Jan. 9, 2007, no pet. h.); see Jn re New Braunfels Am. Motorcycles, Ltd., No. 03-20- 00285, 2020 WL 2989135, at *1 (Tex. App.—Austin June 2, 2020, no pet. h.); Jn re JP Morgan Chase Bank, NA, No. 05-17-01174, 2018 WL 1312470, at *4 (Tex. App.—Dallas Mar. 14, 2018, reh’g denied). 6 See In re Great Lakes Dredge & Dock Co. LLC, 251 S.W.3d 68, 73-74 (Tex. App.—Corpus Christi 2008, orig. proceeding) (explaining difference between “forum,” which refers to a sov- ereign or state, and “venue,” which refers to a particular county or court within that sovereign or state). 63 See Bristol-Myers Squibb Co. v. Goldston, 957 S.W.2d 671, 674 (Tex. App.—Fort Worth 1997, pet. dism’d by agr.). 64 See Moveforfree.com, 288 S.W.3d at 542. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 13(1) maintenance of the action in the county of suit would work an injustice to the movant considering the movant's economic and personal hardship; (2) the balance of interests of all the parties predominates in favor of the action being brought in the other county; and (3) the transfer of the action would not work an injustice to any other party. First, Defendants overstate the economic and personal hardship they will face if the case remains in Dallas County.®° As Defendants point out, they operate primarily out of Collin County, which is very close proximity to Dallas County. In fact, the distance from JWN’s facility to the Dallas County courthouse is only 14 miles further than that between JWN’s facility and the Collin County courthouse. Likewise, if third-party witnesses are required to appear for depositions or trial in this action, their travel distance to Dallas County would not be significantly different from that to Collin County. Defendants also point out the documents pertinent to the lawsuit are located in Collin County, but the availability of electronic transfer of documents makes the physical location of documents a non-issue for venue considerations.®* Clearly, the physical locations of the Dallas County and Collin County courts are a non-factor when evaluating convenience of venue. Defendants argue they should not have to defend themselves in two separate counties so to avoid “undue economic and personal hardships,” including “the duplication of costs and ef- forts.” No additional details are provided as to how Defendants would be financially or personally burdened by maintaining this action in Dallas County.’° Nor do Defendants provide any reasoning as to how their efforts will be duplicated. Additionally, concerns over duplicative costs and efforts 65 See TEX. CIV. PRAC. & REM. CODE § 15.002(b) (emphasis added). 66 See Mot. at 8-9. a. 68 See BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., No. 3-08-Cv-1779-L, 2009 WL 918459 at *5 (N.D. Tex. Apr. 3, 2009); Interactive Music Tech., LLC v. Roland Corp. U.S., No. 6:07-cv-282, 2008 WL 245142, at *10 (E.D. Tex. Jan. 29, 2008). 69 See Mot. at 8. 70 See generally id. at 8-9. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 14only warrant a convenience transfer when two separate lawsuits take place with essentially the same underlying factual allegations.”1 Here, however, the factual issues underlying the action and those underlying the Collin County Action are dissimilar. This case solely concerns the theft of Food Global’s raw materials that otherwise should have been transferred to the DC Logistics fa- cility in Dallas County for Food Global’s further use. In contrast, Food Global’s claims in the Col- lin County Action relate to the defects discovered in Food Global’s products improperly manufac- tured by JWN. These claims require an invocation of the MSA’s terms, including those regarding JWN’s express warranties regarding the quality of its manufactured products.’ Because the claims in this case and the Collin County Action are so dissimilar, discovery and motion practice in the actions will have very little to no overlap, and the courts will likely not be asked to enter into po- tentially contrary factual findings. Thus, Defendants claim that both actions arise out of the same nucleus of facts is highly disingenuous, and it should not be the basis for a venue transfer. 1 See, e.g., Auto-Drill, Inc. v. Cangrig Drilling Tech. Ltd., No. 6:15-cv-00096, 2015 WL 13691866, at *2 (W.D. Tex. May 22, 2015) (transferring patent action to avoid “unnecessary duplication of efforts by two courts” on the same issue, as both cases involved highly similar patent dis- putes brought by the plaintiff concerning the same well drilling control system); Affinity Labs of Tex. v. Samsung Elec. Co., 968 F. Supp. 2d 852, 859-60 (E.D. Tex. 2013) (“Transfer . .. would avoid wasteful duplication of effort by two courts on essentially the same issues.”) (emphasis added); Nader v. McAuliffe, 549 F. Supp. 2d 760, 764 (E.D. Va. 2008) (citing General Tire & Rubber Co. v. Watkins, 373 F.2d 361, 362 (4th Cir. 1967)) (“[T]his case should be transferred . . . to prevent an extravagantly wasteful and useless duplication of the time and effort of the [courts] by the simultaneous trial of two complex and elaborate cases involving substantially the same factual issues.””); see also Dornoch Ltd. ex rel. Underwriting Members of Lloyd’s Syndicate 1209 v. PBM Holdings, Inc., 666 F. Supp. 2d 366, 370-72 (S.D.N.Y. 2009) (denying application of the first-to-file rule and denying transfer of venue on convenience grounds in part because there would be no duplication of efforts between two concurrently-held cases in separate ven- ues, as one case involved the underwriters’ contamination policy and the insured’s alleged fail- ure to cooperate with an insurance investigation, while the other action dealt with an alleged insurance coverage dispute between the same parties). 72 See generally Mot., Ex. C. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 15Defendants failed to establish all three prongs required under § 15.002(b) to justify transfer to Collin County on convenience grounds. Thus, Food Global’s choice of venue must not be dis- turbed.”’ The Court should deny Defendants’ request for a transfer of venue for convenience. CONCLUSION For the foregoing reasons, the Court should deny Defendants’ Motion to Transfer Venue and maintain this action in Dallas County. June 15, 2020 Respectfully submitted, GRIFFITH BARBEE PLLC /s/ Casey Griffith Casey Griffith Texas Bar No. 24036687 Casey.Griffith @griffithbarbee.com Michael Barbee Texas Bar No. 24082656 Michael.Barbee@griffithbarbee.com Dallas Flick Texas Bar No. 24104675 Dallas.Flick@griffithbarbee.com One Arts Plaza 1722 Routh St., Ste. 710 Dallas, Texas 75201 (214) 446-6020 | main (214) 446-6021 | fax Counsel for Plaintiff 73 Perryman, 546 S.W.3d at 130; KW Constr., 165 S.W.3d at 879. PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 16Certificate of Service I certify that on June 15, 2020 a copy of this document was served on all counsel of record via the Court’s electronic document delivery system and pursuant to the Rules. /s/ Casey Griffith Casey Griffith PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE 17Cause No. DC-20-04765 Foop GLoBAL INNOVATION GP LLC, IN THE DISTRICT COURT Plaintiff v. 160TH JUDICIAL DISTRICT JW NutTRITIONAL LLC, AND JESSE J WINDRIX Defendants. DALLas County, TEXAS Appendix in Support of Plaintiff's Response to Defendants’ Motion to Transfer Venue Exhibit Document Appendix Pages 1 Declaration of Casey Griffith ae 1-A Plaintiffs First Amended Petition gue 2 Declaration of Nicholas Aguilar 29-32 Emails exchanged between Ze Wai Yee Choy, Nicholas Aguilar, pare Jesse Windrix, and John Carleton 2B Emails exchanged between Wai Yee Choy, Bee Nicholas Aguilar, Gerry Benn, and Juan Cedillo 18Exhibit 1 19Cause No. DC-20-04765 Foop GLosBat INNovaTION GP LLC, IN THE DISTRICT CouRT Plaintiff Vv. 160TH JUDICIAL DisTRICT JW NutrRiTIonat LLC, AnD JESSE J WINDRIX Defendants. Datias County, TEXAS Declaration of Casey Griffith i My name is Casey Griffith, my date of birth is April 13, 1972, and my address is 1722 Routh St., Ste. 710, Dallas, Texas, 75201, USA. I declare under penalty of perjury that the foregoing is true and correct. 2. Attached as Exhibit A is a true and correct copy of Plaintiff's First Amended Petition filed by Food Global Innovation GP LLC on June 15, 2020. Executed in Dallas County, State of Texas, on the 15th day of June, 2020. Casey Griffith Counsel for Plaintiff Food Global Innovation GP LLC 20Exhibit 1-A Cause No. DC-20-04765 Foop GLoBAL INNOVATION GP LLC, IN THE DISTRICT COURT Plaintiff i 160TH JUDICIAL DISTRICT JW NutTRITIONAL LLC AND JESSE WINDRIX, Defendants DALLAS CouNTY, TEXAS Plaintiffs First Amended Petition Plaintiff Food Global Innovation GP LLC (‘Food Global”) files this First Amended Peti- tion against Defendants JW Nutritional LLC (“JWN”) and Jesse Windrix (“‘Windrix”’) for: (1) conversion; (2) breach of implied bailment contract; and (3) violations of the Texas Theft Liability Act. Food Global states the following in support: DISCOVERY CONTROL PLAN le Pursuant to Rule 190.3, Food Global intends to conduct discovery under Level 3. PARTIES 2. Plaintiff Food Global Innovation GP LLC is a Texas limited liability company, lo- cated in Dallas County, Texas. Food Global’s sole member is domiciled in Texas. 3. Defendant JW Nutritional LLC is an Oklahoma limited liability company registered to transact business in Texas. JWN’s sole member, Windrix, is domiciled in Texas. 4. Defendant Jesse Windrix is the sole member and president of JWN. Windrix is domiciled in Texas. JURISDICTION AND VENUE 5. Jurisdiction is proper in this Court because the amount in controversy exceeds the minimum jurisdictional threshold of this Court. Pursuant to Rule 47(c), Food Global seeks mone- tary relief between $200,000 and $1,000,000. PLAINTIFF’S FIRST AMENDED PETITION it6. Venue is proper in Dallas County under Texas Civil Practice and Remedies Code § 15.002(a)(1) because a substantial part of the events or omissions giving rise to Food Global’s claims occurred within Dallas County. BACKGROUND 1. Food Global’s and JWN’s relationship. i Food Global markets and distributes nutritional and other supplement products un- der, among other trademarks, the VITAXSTRONG mark. JWN manufactures and packages nu- tritional and other supplement products. 8. Beginning in 2017, JWN manufactured dietary and nutritional supplement products for Food Global to then market and distribute. 9. Food Global would purchase certain whey protein raw material from third-party suppliers and arrange for the raw material to be delivered to JWN to be used to manufacture Food Global’s products. 10. | JWN would store excess amounts of Food Global’s raw material in its warehouse. JWN would then use the excess raw material to manufacture additional products based on Food Global’s direction. 2. JWN steals raw material from Food Global. 11. In April 2018, Food Global placed an order for JWN to manufacture Food Global’s VITAXTRONG products, including 1,500 units of the VX-Real Whey Mocha Cappuccino 5 Ib product (the “Real Whey Mocha Product”). Food Global provided JWN the raw material neces- sary to produce the Real Whey Mocha Product—approximately 7,230 pounds. 12. On January 15, 2019, Food Global requested from JWN an update on the produc- tion status of the Real Whey Mocha Product. JWN emailed Food Global on January 31, 2019 and stated the Real Whey Mocha Product would be put on JWN’s schedule for manufacture after it received proper labels for the Real Whey Mocha Product’s containers. PLAINTIFF’S FIRST AMENDED PETITION 2)13. Food Global sent similar status update requests on at least February 11, 2019, Feb- ruary 14, 2019, and March 6, 2019. At no point did Windrix or JWN indicate whether it actually manufactured the Real Whey Mocha Product. 14. Separately, in February and March 2019, Food Global and JWN coordinated the transportation of the entirety of Food Global’s raw material held in JWN’s warehouse to a facility operated by DC Logistics, a third-party warehousing and distribution service. The DC Logistics facility was located at 510 Peachtree Road, Suite 100, Mesquite, Texas 75149, in Dallas County, Texas. 15. In previous instances, JWN shipped Food Global’s raw material without issue to third-party storage facilities and/or manufacturers so different third parties could manufacture Food Global’s products. 16. —_ In an email to Food Global on February 25, 2019, Windrix informed Food Global that JWN would begin to prepare the shipment of Food Global’s raw material to DC Logistics. 17 On March 11, 2019, Food Global informed Windrix and John Carleton, JWN’s Warehouse Manager, via email that JWN was in possession of 16,519 pounds of Food Global’s raw material. On March 12, 2019, Windrix and Carleton responded to Food Global and agreed with Food Global’s calculation of the outstanding raw material to be transported to DC Logistics. 18. Food Global then demanded JWN turn over the raw material to Food Global via transfer to DC Logistics. Despite Windrix agreeing to the amount of raw material owed to Food Global, JWN never complied with Food Global’s demand. 19. Intotal, JWN and Windrix stole at least 23,808 pounds of raw material from Food Global. 20. Food Global paid significant sums to purchase the raw material from its third-party supplier that was stolen by JWN. Thus, Food Global has been directly damaged by JWN’s miscon- duct. PLAINTIFF’S FIRST AMENDED PETITION 3CAUSES OF ACTION Count 1: Conversion/Civil Theft (WN and Windrix) 21. Food Global incorporates by reference the preceding paragraphs. 22. Food Global owned and had possessory rights over the raw material stolen by JWN and Windrix, which constitutes Food Global’s personal property. Food Global purchased the raw material from its third-party supplier, had the product shipped directly from the supplier to JWN for the manufacture of Food Global products, and permitted JWN to store excess amounts of raw material in JWN’s warehouse to be used for future work orders. 23. In 2019, JWN and Windrix also acknowledged JWN possessed the raw material Food Global demanded be returned. However, JWN never returned the raw material to Food Global. 24, | JWN and Windrix’s intentional conduct was both willful and malicious. Both JWN and Windrix knew, or should have reasonably known, JWN no longer had a legal right to keep the raw material, yet they refused to return the raw material to Food Global. 25. _ Inprevious instances, JWN shipped Food Global’s raw material to third-party stor- age and manufacturing facilities without issue. JWN and Windrix acted intentionally in this in- stance by not turning over the raw material. 26. Food Global sustained damages from JWN and Windrix’s conduct in the form of the lost value of the stolen raw material. Food Global also sustained damages from its loss of use of the stolen raw material for other work orders and subsequent sales of its products. 27. Accordingly, Food Global seeks its actual damages, pre- and post-judgment inter- est, and court costs. Food Global also seeks exemplary damages based on JWN’s willful and mali- cious conduct described above. Count 2: Breach of Implied Bailment Contract (JWN) 28. Food Global incorporates by reference the preceding paragraphs. 29. Food Global and JWN entered into a valid, enforceable implied bailment contract under which JWN agreed to accept and safely keep possession of Food Global’s raw material in PLAINTIFF’S FIRST AMENDED PETITION 4the normal course of and as an incident of JWN’s manufacturing business, in which it makes a profit. 30. Food Global arranged for transfer of its raw material to JWN’s facility, pursuant to their bailment contract. 31. | JWN accepted the raw material pursuant to the bailment contract. 32. Food Global demanded JWN return the raw material on or around February 2019. Food Global specifically demanded JWN send the raw material to DC Logistics, a third-party ware- housing company located in Dallas county that would store the raw material on behalf of Food Global. 33. JWN failed to comply with its obligation to return the raw material. 34. | JWN’s conduct constitutes a breach of the parties’ implied bailment contract. 35. Food Global has suffered damages as a direct, proximate result of JWN’s breach. Food Global seeks its actual damages, pre- and post-judgment interest, and court costs. Count 3: Violations of the Texas Theft and Liability Act (WN and Windrix) 36. Food Global incorporates by reference the preceding paragraphs. 37. Food Global maintained a greater right of possession over the raw material than JWN. Food Global purchased the raw material from its third-party supplier, had the product shipped directly from the supplier to JWN for the manufacture of Food Global products, and per- mitted JWN to store excess amounts of raw material in JWN’s warehouse to be used for future work orders. 38. | JWN and Windrix unlawfully appropriated Food Global’s raw material with an in- tent to deprive it of the raw material and without its consent. See TEX. PEN. CODE § 31.03. To Food Global’s current knowledge, the value of its stolen raw material was more than $30,000 but less than $100,000, making JWN’s theft a third-degree felony. Id. § 31.03(f)(1). 39. Food Global sustained damages as a result of JWN and Windrix’s actions. It seeks its actual damages, additional statutory damages of $1,000, attorneys’ fees and expenses, pre- and PLAINTIFF’S FIRST AMENDED PETITION