Preview
Filed 09 December 18 A10:42
LorenJ ackson - District Clerk
Harris Coun!
CAUSE NO, 2009-73874 ED101) 015610144
By: bridgett stanfield
NSN DATA CENTER, L.L.C., IN THE DISTRICT COURT OF
Plaintiff,
VS. HARRIS COUNTY, TEXAS
BINZ 1001 TEXAS AVENUE, L.L.C.,
Defendant. 133"? JUDICIAL DISTRICT
PLAINTIFF’S AMENDED PETITION AND
APPLICATION FOR INJUNCTIVE RELIEF
NSN Data Center, L.L.C. files amended petition and application for injunctive relief against
Binz 1001 Texas Avenue, L.L.C,
Discovery control plan
1 Plaintiff elects discovery control plan level 2 under TEX, R. Cry, P. 190.3.
Parties
22, NSN Data Center, L.L.C, (“NSN”) is a Texas limited liability company that conducts
business in Harris County, Texas.
3 Binz 1001 Texas Avenue, L.L.C, (“Binz”) is a Delaware limited liability company.
Its registration with the Texas Secretary of State was revoked on October 17, 2008, and it does not
maintain a registered agent for service of process in Texas. Binz has appeared and answered in this
case,
Jurisdiction and venue
4. This Court has personal jurisdiction over the defendant because it conducts business
in Texas and has continuous and systematic contacts with Texas. This Court has subject matter
jurisdiction over this claim because the amount in controversy exceeds the jurisdictional minimum
of this Court.
5 Venue is proper in Harris County, Texas, because this case relates to a lease which
is performable in Harris County, Texas, and because plaintiff resides in Harris County, Texas.
Facts
6 NSN, as tenant, entered into a Lease (the “Lease”) with RPD Binz Building, L.L.C.,
a Delaware limited liability company, dated February 1, 2006. A copy of the Lease is Exhibit A.
Binz is purported to be the successor-in-interest to RPD Binz Building, L.L.C.
7 NSN operates a data center in the Premises.’ As such, NSN licenses racks and space
in the Premises to third-party licensees. The licensees house and operate computer equipment and
servers in the Premises, NSN and the licensees must have access to the Premises 24 hours a day,
seven days a week to service and operate the computer equipment located in the Premises. Binz
delivered to NSN a letter dated August 27, 2009, claiming that there was a mistake in the calculation
of electrical charges associated with the Premises in the past. The letter demanded payment of
additional electrical charges for 2008 in the sum of $57,356.48. A copy of the letter is Exhibit B.
NSN disputed the charges and requested backup information.
8 On September 25, 2009, counsel for Binz delivered to counsel for NSN another
demand letter, again demanding $57,341.15 for reconciliation of 2008 electrical charges, plus an
additional $76,000.00 for 2009 charges through August. NSN disputed these additional charges and
asked for an accounting of such reconciliation and backup for the amounts alleged.
9 Binz delivered to NSN the requested accounting and backup documents on November
6, 2009. NSN reviewed the accounting records provided by Binz and has found them to be
1
All capitalized terms not otherwise defined herein shall have the same meaning afforded to them in
the Lease.
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inaccurate and unreliable, For example, the building has one electrical meter for the “Building,”
identified by the electrical provider as 519 Main, and another for the “Garage,” identified by the
electrical provider as 1015 Texas. The Premises is submetered from the “Garage” meter. Some of
the periods of time for which Binz is requesting additional electrical adjustment show that the
submeter for the Premises used more electricity than the meter for the entire “Garage.” That is
impossible. Furthermore, there are discrepancies in the rate charged to NSN and the various
reconciliations are contradictory, Exhibit C is a summary of findings of the discrepancies.
10. Binz sent to NSN a letter dated November 6, 2009, in which it demanded payment
of the total sum of $131,757.04 by Friday, November 13, 2009, Binz threatened to “take all
appropriate steps to enforce its rights under the Lease,” if NSN does not make this payment. Exhibit
Disa copy of the letter. NSN, through its counsel, requested that Binz agree not to take any action
that would affect NSN’s rights under the Lease for at least 30 days while the parties tried to work
out these accounting issues and determine if any amount is owed and how to get it paid. Binz would
not agree to forbear and therefore it is necessary for NSN to file this lawsuit and request the
injunctive relief stated herein.
li. The Lease states that electricity is included in the Operating Expenses of the Project.
(Article 5.02(c).) Tenant is responsible for paying to Binz Tenant’s Pro Rata Share of the Operating
Expense increase for the Building and Project over the 2006 Base Year. (Article 1.01(g) and (h),
4.02, and 5.01.) To the extent that Operating Expenses exceed the Base Year, Tenant is obligated
each month to pay to Binz 1/12 of Tenant’s Pro Rata Share of the Estimated Operating Expense
Increase. (Article 5.01.) Binz wrongly charged NSN for 100% of the electricity that Binz attributes
to the Premises, which is not authorized by the Lease. Binz is only entitled to receive from NSN
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reasonable charges for off-hour and non-standard electricity, which is not what Binz charged to NSN.
(Article 7.03.) In fact, the Permitted Use is as a general office and data center and Binz has not
attempted to establish that NSN’s electricity use exceeds standard data center usage.
First cause of action
Breach of contract
12. Binz breached the Lease by imposing charges on NSN that are not authorized under
the Lease. NSN requests recovery of all its actual, incidental, direct, consequential, economic,
special, nominal, and general damages, attorney’s fees, costs of court, and pre- and post-judgment
interest.
Second cause of action
Declaratory judgment
13. A justiciable controversy exists between NSN and Binz regarding the electrical
charges Binz is attempting to impose on NSN. NSN requests that the Court declare that
(a) Binz’ calculation of purported electrical charges is wrong and not authorized
by the Lease;
(b) NSN’s obligation to pay for electricity is limited to paying its Pro Rata Share
(5.09%) of the Estimated Operating Expense increase over the 2006 Base
Year;
(c) NSN is entitled to a refund or credit from Binz for all overpayments of
electricity charges since the inception of the Lease;
(d) alternatively, Binz is estopped from demanding from NSN electrical charges
for January - July 2008;
(¢) alternatively, Binz is estopped from claiming payment for electricity
purportedly consumed in 2008 in any sum different from the amount stated
in the Credit Memo 1003, which had a credit of $28,954.17; and
(@® alternatively, that charges by Binz to NSN must be based on meter readings
submetered from the 1015 Texas (Garage) meter and made on the 15th of
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each month.
NSN requests that the Court declare the rights of the parties regarding such charges, and that the
Court award reasonable and necessary attorney’s fees and expenses that are equitable and just,
pursuant to TEX, Crv. PRAC. & REM. CODE § 37.009.
Third cause of action
Request for injunctive relief
14. NSN requests that the Court enter a temporary restraining order enjoining Binz from
terminating the Lease, locking NSN and its licensees out of the Premises, cutting off electricity to
the Premises, in any other way impeding access to the Premises by NSN and its licensees, or
interfering with the quiet enjoyment of the Premises by NSN and its licensees. Good causes exists
to grant this application for temporary restraining order ex parte because of Binz’ threats to take legal
action that would negatively impact NSN’s ability to conduct its business on the Premises. If Binz
takes any of the actions described above, it will interfere with NSN and its licensees which rely on
access to the Premises to maintain computer equipment and servers located therein. If the Court
waits for Binz to make an appearance, Binz may take such actions peremptorily before responding
to this application or appearing in court.
15. NSN has a probable right to relief because the accounting of the electrical charges
provided by Binz is facially inaccurate and erroneous. NSN is entitled to this relief because the relief
requested requires the restraint of an act prejudicial to it. NSN will suffer irrevocable injury if Binz
takes actions which would prohibit NSN and its licensees from accessing the Premises because such
action would essentially result in shutting down NSN’s business. NSN’s customers may be harmed
by such actions and would at the very least remove their equipment from the Premises and terminate
5.
their license agreements, and may even take legal action against NSN and Binz for any damage that
might result to their equipment or to their businesses which are operated based upon the equipment
housed in the Premises. Money damages would be inadequate and difficult to calculate because the
effects of Binz’ actions may be unpredictable because they involve the actions of third-parties and
the effect of such actions on third-parties and consumers in general. Accordingly, NSN is entitled
to injunctive relief under TEX. Cry. PRAC, & REM. CODE § 65.011{1), because the relief requested
requires the restraint of an act prejudicial to NSN, and under § 65.011(5) because Binz has
threatened irreparable injury to real and personal property of NSN. The affidavit of Marie Collins
is attached as Exhibit E.
16. NSN requests that bond be set at $500 because such amount will cover the nominal
financial losses, of which there are none, that Binz may incur in ceasing and refraining from taking
any action that would affect NSN’s rights into the leased Premises while the claim for electrical
reconciliation charges is adjudicated. NSN is not in breach of the Lease and has paid all rent
otherwise payable under the Lease.
17. NSN requests that the Court issue notice as required by the Texas Rules of Civil
Procedure and hold a hearing within 14 days and at such hearing the Court issue a temporary
injunction enjoining defendants as outlined above.
Conclusion
18. NSN Data Center, L.L.C. respectfully requests that the Court enter judgment against
Binz 1001 Texas Avenue, L.L.C. for its actual, incidental, direct, consequential, economic, special,
nominal, and general damages, attorney's fees, expenses, costs of court, and pre- and post-judgment
interest; NSN requests that the Court declare the rights of the parties under the Lease as stated above,
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that the Court enter injunctive relief as stated above, and that the Court grant all other relief to which
it is entitled.
Respectfully submitted,
NATHAN SOM. JACOBS
A Professi poration
By;
eorge R. Gibson
Texas Bar No. 00793802
Seth A. Miller
Texas Bar No. 24055977
2800 Post Oak Boulevard, 61" Floor
Houston, Texas 77056-6102
713,960,0303
713.892.4840 - fax
Jan Woodward Fox
Texas Bar No, 07334500
440 Louisiana, Suite 900
Houston, Texas 77002
713.623.8600
713.807.1758 - fax
ATTORNEYS FOR NSN DATA CENTER, L.L.C.
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CERTIFICATE OF SERVICE
Icertify that a copy of Plaintiff's Amended Petition and Application for Injunctive Relief was
served as shown below on December 18, 2009.
H. Miles Cohn By Facsimile 713.374.7049
Sheiness, Scott, Grossman & Cohn, L.L.P. and First Class Mail
1001 McKinney, Suite 1400
Houston, Texas 77002-6323
Jan Woodward Fox By Facsimile 713.807.1758
440 Louisiana, Suite 900 and First Class Mail
Houston, Texas 77002
Cfbeopee R. Gibson
WANSMPOP & App for TRO v2 (Amended) wpd
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Preview
Filed 09 December 18 A10:42 LorenJ ackson - District Clerk Harris Coun! CAUSE NO, 2009-73874 ED101) 015610144 By: bridgett stanfield NSN DATA CENTER, L.L.C., IN THE DISTRICT COURT OF Plaintiff, VS. HARRIS COUNTY, TEXAS BINZ 1001 TEXAS AVENUE, L.L.C., Defendant. 133"? JUDICIAL DISTRICT PLAINTIFF’S AMENDED PETITION AND APPLICATION FOR INJUNCTIVE RELIEF NSN Data Center, L.L.C. files amended petition and application for injunctive relief against Binz 1001 Texas Avenue, L.L.C, Discovery control plan 1 Plaintiff elects discovery control plan level 2 under TEX, R. Cry, P. 190.3. Parties 22, NSN Data Center, L.L.C, (“NSN”) is a Texas limited liability company that conducts business in Harris County, Texas. 3 Binz 1001 Texas Avenue, L.L.C, (“Binz”) is a Delaware limited liability company. Its registration with the Texas Secretary of State was revoked on October 17, 2008, and it does not maintain a registered agent for service of process in Texas. Binz has appeared and answered in this case, Jurisdiction and venue 4. This Court has personal jurisdiction over the defendant because it conducts business in Texas and has continuous and systematic contacts with Texas. This Court has subject matter jurisdiction over this claim because the amount in controversy exceeds the jurisdictional minimum of this Court. 5 Venue is proper in Harris County, Texas, because this case relates to a lease which is performable in Harris County, Texas, and because plaintiff resides in Harris County, Texas. Facts 6 NSN, as tenant, entered into a Lease (the “Lease”) with RPD Binz Building, L.L.C., a Delaware limited liability company, dated February 1, 2006. A copy of the Lease is Exhibit A. Binz is purported to be the successor-in-interest to RPD Binz Building, L.L.C. 7 NSN operates a data center in the Premises.’ As such, NSN licenses racks and space in the Premises to third-party licensees. The licensees house and operate computer equipment and servers in the Premises, NSN and the licensees must have access to the Premises 24 hours a day, seven days a week to service and operate the computer equipment located in the Premises. Binz delivered to NSN a letter dated August 27, 2009, claiming that there was a mistake in the calculation of electrical charges associated with the Premises in the past. The letter demanded payment of additional electrical charges for 2008 in the sum of $57,356.48. A copy of the letter is Exhibit B. NSN disputed the charges and requested backup information. 8 On September 25, 2009, counsel for Binz delivered to counsel for NSN another demand letter, again demanding $57,341.15 for reconciliation of 2008 electrical charges, plus an additional $76,000.00 for 2009 charges through August. NSN disputed these additional charges and asked for an accounting of such reconciliation and backup for the amounts alleged. 9 Binz delivered to NSN the requested accounting and backup documents on November 6, 2009. NSN reviewed the accounting records provided by Binz and has found them to be 1 All capitalized terms not otherwise defined herein shall have the same meaning afforded to them in the Lease. -2- inaccurate and unreliable, For example, the building has one electrical meter for the “Building,” identified by the electrical provider as 519 Main, and another for the “Garage,” identified by the electrical provider as 1015 Texas. The Premises is submetered from the “Garage” meter. Some of the periods of time for which Binz is requesting additional electrical adjustment show that the submeter for the Premises used more electricity than the meter for the entire “Garage.” That is impossible. Furthermore, there are discrepancies in the rate charged to NSN and the various reconciliations are contradictory, Exhibit C is a summary of findings of the discrepancies. 10. Binz sent to NSN a letter dated November 6, 2009, in which it demanded payment of the total sum of $131,757.04 by Friday, November 13, 2009, Binz threatened to “take all appropriate steps to enforce its rights under the Lease,” if NSN does not make this payment. Exhibit Disa copy of the letter. NSN, through its counsel, requested that Binz agree not to take any action that would affect NSN’s rights under the Lease for at least 30 days while the parties tried to work out these accounting issues and determine if any amount is owed and how to get it paid. Binz would not agree to forbear and therefore it is necessary for NSN to file this lawsuit and request the injunctive relief stated herein. li. The Lease states that electricity is included in the Operating Expenses of the Project. (Article 5.02(c).) Tenant is responsible for paying to Binz Tenant’s Pro Rata Share of the Operating Expense increase for the Building and Project over the 2006 Base Year. (Article 1.01(g) and (h), 4.02, and 5.01.) To the extent that Operating Expenses exceed the Base Year, Tenant is obligated each month to pay to Binz 1/12 of Tenant’s Pro Rata Share of the Estimated Operating Expense Increase. (Article 5.01.) Binz wrongly charged NSN for 100% of the electricity that Binz attributes to the Premises, which is not authorized by the Lease. Binz is only entitled to receive from NSN -3- reasonable charges for off-hour and non-standard electricity, which is not what Binz charged to NSN. (Article 7.03.) In fact, the Permitted Use is as a general office and data center and Binz has not attempted to establish that NSN’s electricity use exceeds standard data center usage. First cause of action Breach of contract 12. Binz breached the Lease by imposing charges on NSN that are not authorized under the Lease. NSN requests recovery of all its actual, incidental, direct, consequential, economic, special, nominal, and general damages, attorney’s fees, costs of court, and pre- and post-judgment interest. Second cause of action Declaratory judgment 13. A justiciable controversy exists between NSN and Binz regarding the electrical charges Binz is attempting to impose on NSN. NSN requests that the Court declare that (a) Binz’ calculation of purported electrical charges is wrong and not authorized by the Lease; (b) NSN’s obligation to pay for electricity is limited to paying its Pro Rata Share (5.09%) of the Estimated Operating Expense increase over the 2006 Base Year; (c) NSN is entitled to a refund or credit from Binz for all overpayments of electricity charges since the inception of the Lease; (d) alternatively, Binz is estopped from demanding from NSN electrical charges for January - July 2008; (¢) alternatively, Binz is estopped from claiming payment for electricity purportedly consumed in 2008 in any sum different from the amount stated in the Credit Memo 1003, which had a credit of $28,954.17; and (@® alternatively, that charges by Binz to NSN must be based on meter readings submetered from the 1015 Texas (Garage) meter and made on the 15th of -4- each month. NSN requests that the Court declare the rights of the parties regarding such charges, and that the Court award reasonable and necessary attorney’s fees and expenses that are equitable and just, pursuant to TEX, Crv. PRAC. & REM. CODE § 37.009. Third cause of action Request for injunctive relief 14. NSN requests that the Court enter a temporary restraining order enjoining Binz from terminating the Lease, locking NSN and its licensees out of the Premises, cutting off electricity to the Premises, in any other way impeding access to the Premises by NSN and its licensees, or interfering with the quiet enjoyment of the Premises by NSN and its licensees. Good causes exists to grant this application for temporary restraining order ex parte because of Binz’ threats to take legal action that would negatively impact NSN’s ability to conduct its business on the Premises. If Binz takes any of the actions described above, it will interfere with NSN and its licensees which rely on access to the Premises to maintain computer equipment and servers located therein. If the Court waits for Binz to make an appearance, Binz may take such actions peremptorily before responding to this application or appearing in court. 15. NSN has a probable right to relief because the accounting of the electrical charges provided by Binz is facially inaccurate and erroneous. NSN is entitled to this relief because the relief requested requires the restraint of an act prejudicial to it. NSN will suffer irrevocable injury if Binz takes actions which would prohibit NSN and its licensees from accessing the Premises because such action would essentially result in shutting down NSN’s business. NSN’s customers may be harmed by such actions and would at the very least remove their equipment from the Premises and terminate 5. their license agreements, and may even take legal action against NSN and Binz for any damage that might result to their equipment or to their businesses which are operated based upon the equipment housed in the Premises. Money damages would be inadequate and difficult to calculate because the effects of Binz’ actions may be unpredictable because they involve the actions of third-parties and the effect of such actions on third-parties and consumers in general. Accordingly, NSN is entitled to injunctive relief under TEX. Cry. PRAC, & REM. CODE § 65.011{1), because the relief requested requires the restraint of an act prejudicial to NSN, and under § 65.011(5) because Binz has threatened irreparable injury to real and personal property of NSN. The affidavit of Marie Collins is attached as Exhibit E. 16. NSN requests that bond be set at $500 because such amount will cover the nominal financial losses, of which there are none, that Binz may incur in ceasing and refraining from taking any action that would affect NSN’s rights into the leased Premises while the claim for electrical reconciliation charges is adjudicated. NSN is not in breach of the Lease and has paid all rent otherwise payable under the Lease. 17. NSN requests that the Court issue notice as required by the Texas Rules of Civil Procedure and hold a hearing within 14 days and at such hearing the Court issue a temporary injunction enjoining defendants as outlined above. Conclusion 18. NSN Data Center, L.L.C. respectfully requests that the Court enter judgment against Binz 1001 Texas Avenue, L.L.C. for its actual, incidental, direct, consequential, economic, special, nominal, and general damages, attorney's fees, expenses, costs of court, and pre- and post-judgment interest; NSN requests that the Court declare the rights of the parties under the Lease as stated above, -6- that the Court enter injunctive relief as stated above, and that the Court grant all other relief to which it is entitled. Respectfully submitted, NATHAN SOM. JACOBS A Professi poration By; eorge R. Gibson Texas Bar No. 00793802 Seth A. Miller Texas Bar No. 24055977 2800 Post Oak Boulevard, 61" Floor Houston, Texas 77056-6102 713,960,0303 713.892.4840 - fax Jan Woodward Fox Texas Bar No, 07334500 440 Louisiana, Suite 900 Houston, Texas 77002 713.623.8600 713.807.1758 - fax ATTORNEYS FOR NSN DATA CENTER, L.L.C. -7- CERTIFICATE OF SERVICE Icertify that a copy of Plaintiff's Amended Petition and Application for Injunctive Relief was served as shown below on December 18, 2009. H. Miles Cohn By Facsimile 713.374.7049 Sheiness, Scott, Grossman & Cohn, L.L.P. and First Class Mail 1001 McKinney, Suite 1400 Houston, Texas 77002-6323 Jan Woodward Fox By Facsimile 713.807.1758 440 Louisiana, Suite 900 and First Class Mail Houston, Texas 77002 Cfbeopee R. Gibson WANSMPOP & App for TRO v2 (Amended) wpd -8-