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CAUSE NO.
Highlands Pest § IN THE DISTRICT COURT OF
Management, LLC. §
§
Plaintiff. §
§
§ DALLAS COUNTY , TEXAS
§
Safehaven Pest Control, §
LLC and Michael Bosco §
§
Defendants . § _____ JUDICIAL DISTRICT
PLAINTIFF’S APPLICATION FOR TEMPORARY RESTRAINING ORDER &
ORIGINAL PETITION
Plaintiff Highlands Pest Management, LLC files its Application for
Temporary Restraining Order & Original Petition complaining of Defendant
SafehavenPest Control, LLC and Michael Bosco as follows:
Discovery Level
iscovery should be conducted in accordance with a discovery control plan
under Texas Rule of Civil Procedure 190.3.
LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER
RIGINAL ETITION- Page 1
Parties and Service
Plaintiff, Highlands Pest Management, LLC is a limited liability company duly
formed and existing under the laws of the State of Texas. Its principal office is
located at 9017 Larchwood, Dallas, TX 75238in Dallas County, Texas.
Defendant, Safehaven Pest Control, LLC is a limited liability company duly
formed and existing under the laws of the State of Texas. Its principal office is
located at 2609 National Circle, Garland, Texasin Dallas County, Texas. It can
be served with process through its registered agent, Michael Bosco at Club
Glen Dr., Dallas, TX 75243. USA
Defendant, Michael Bosco, is an individual and a resident of Dallas County,
Texas; he can be served with process at 9206 Club Glen Dr., Dallas, TX 75243
Venue
Plaintiff’s action against Defendant is properly maintainable in Dallas
County, Texas because venue is based on county of defendant’s residence
Defendant Michael Boscoresides at lub Glen Dr., Dallas, TX 75243,which is
located in Dallas County, Texas
LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER
RIGINAL ETITION Page
Relationship of Parties
Highlands Pest Management, LLC is in the business of providing commercial
and residential pest control and management.
Patrick Bosco is the owner of Highlands Pest Management, LLC.
Safehaven Pest Control, LLC is in the business of providing commercial and
residential pest control and management. It is competitive to Highlands Pest
Management, LLC.
Michael Bosco is the owner of Safehaven Pest Control, LLC.
Michael Bosco on behalf of Safehaven Pest Control, LLC, entered into a
company agreement with Patrick Bosco; portions of which are attached as Exhibit A
to Exhibit 1. The company agreement contained non competition provisions, which
take effect upon division of Safehaven Pest Control, LLC.
Patrick and Michael Bosco divided the Safehaven Pest Control, LLC in July
2015. Michael Bosco and Safehaven Pest Control, LLC have violated the non
competition provisions of Safehaven Pest Control, LLC’s Company Agreement
LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER
RIGINAL ETITION Page
Defendants Misconduct
12. Patrick Bosco is the owner of Highlands Pest Management, LLC. A company he started
around the time he elected to leave Safehaven as an owner. Exhibit 1, para. 1
13. Patrick Bosco elected to leave Safehaven in June of 2015 because of fundamental
disagreements in management style he had with his brother, Michael Bosco. Exhibit 1, para. 3
14. Patrick Bosco elected one of several methods to divide the company. According to
Section 10.9 of the company agreement, Patrick could choose to equally divide Safehaven’s
customers and walk away. Exhibit 1, para 5Paragraph 10.9(c) states:
Within days after Election Date, Electing Member will prepare and
deliver Non Electing Members written list dividing the Company's
customers into two groups. These two groups will divided such way that,
greatest extent possible, number customers each group
approximately equal, and revenue received from each group during
oneyear period preceding Election Date approximately equal. Exhibit 1,
para. 5
15. Approximately one month later Patrick and Michael successfully divided Safehaven’s
customers. The closed on the division on July 10, 2015. Exhibit 1, para. 6
16. Patrick Bosco walked away as the Departing Member with his customers, which were
called Departing Customers; these customers were on a “List A”.Safehaven as the Retaining
Member retained its own customers, which were called Retained Customers.Id. Safehaven’s
customers were on a “List B”.
17. In order to protect their newly minted customer relationships, Safehaven Pest Control,
LLC’s Company Agreement provided protections to both Patrick and Michael Bosco. It
prevented them from poaching the other’s customers. Paragraph 12.4 (b) (c) states, in part:
LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER
RIGINAL ETITION Page
Alternative Restrictions in Case of Company Division. If the Company is divided
pursuant to Section 10.9, the Departing Member will not be subject to Sections 12.1,
12.2, or 12.3 after the Division Closing Date, and instead the Departing Member,
Retaining Member, and the Company will be subject to the following restrictions after
the Division Closing Date:
(b) After Division Closing Date, Departing Member will free
sell provide any goods services Company provides,
own, operate, employed business which competes with
Company, and otherwise compete with Company, provided that
Departing Member must comply with paragraphs (a) and (b) above.
(c) For period two years . . . the Company . . . will not, directly
indirectly sell provide, offer sell provide, any goods
services relating pest control eradication, mosquito control
eradication, mosquito spraying any Departing Customers.
Exhibit A
18. There is no ambiguity as to what Patrick and Michael intended. They wanted to keep
the other from poaching customers for two years. Simply put, Michael Bosco and Safehaven
Pest Control promised not to touch Patrick Bosco’s List A customers.
19. here has been some inadvertent crossover. For instance, Highlands’ Pest
Management has been contacted twice by Safehaven customers. Exhibit 1, para. 10. One
such customer happened to be on both Safehaven and Highlands’ customer lists. . The
other reached out to Highlands; once Highlands discovered which list the customer was on, it
directed the customer to Safehaven.
20. The same cannot be said of Safehaven. Michael Bosco and Safehaven Pest Control
have engaged in a campaign to sell or provide goods or services related to pest control or
eradication, mosquito control or eradication, or mosquito spraying to Highlands’ customers.
21. Safehaven has contacted Highlands’ customers by personal visits, phone and email.
Exhibit 1, para. 12
LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER
RIGINAL ETITION Page
22. Safehaven has contacted Highlands’ customers by phone using robo calls.
23. Safehaven has contacted Highlands’ customers by email.
24. Safehaven has made personal visits to Highlands’ customers to provide services.
25. In addition, Safehaven has invoiced Highlands’ customer for service rendered.
Exhibit 1, para 15.
26. recently as September 23, 2015, Patrick Bosco learned that Safehaven provided
services to Planation Pet House, a Highlands customer.
Safehaven has been contacting Highlands customers in violation of Section 12.4 of
Safehaven Pest Control, LLC’s Limited Liability Company Agreement.
VI.
Cause of Action: Breach of Contract
Patrick Bosco and Michael Bosco entered into Safehaven Pest Control, LLC’s
Limited Liability Company Agreement.
They agreed that upon the division of SafehavenPest Control , they would not
sell or provide goods or services related to pest control or eradication, mosquito
control or eradication, or mosquito spraying to each other’s customers.
The reement’s noncompetition covenants are ancillary to an otherwise
enforceable agreement and they are reasonable in time, scope and geography.
Michael Bosco and Safehaven Pest Control, LLChave breached Safehaven
Pest Control, LLC’s Limited Liability Company Agreementby contacting and
diverting Highlands’ customers
LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER
RIGINAL ETITION Page
Because of Defendant breach of the agreement, Highlands is being
damaged; therefore, it seeks injunctive reliefand damages
Plaintiff’s Injuries and Damages
Defendant violation of Section 12.4 of Safehaven Pest Control, LLC’s Limited
Liability Company Agreement has and will continue to damage and injureHighlands
Pest Management. More specifically, Defendants are contacting Highlands’
customers and seeking to do business with them in violation of Section 12.4.
Defendant actions are causing Highland Pest Management damages in an amount
within the jurisdictional limits of the court.
VIII.
Preliminary and Permanent Injunctive Relief
In order to stop Michael Bosco and Safehaven’s blatant violation of its own
agreement Section 12.4, Highlands Pest Management needs injunctive relief
Highlands has alleged breach of contract against Defendant , and as
indicated in this petition and in the affidavit Patrick Bosco, which is attached as
Exhibit and incorporated by reference, Highlands Pest Management has shown a
probable right of recovery and likelihood of success on the merits, Highlands is and
will continue to suffer imminent, irreparable harm without Court intervention, and
there is no adequate remedy at la Highlands needs a temporary restraining
LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER
RIGINAL ETITION Page
order and injunctive relief to stop Safehaven from violating its own agreement, not
to compete.
As a direct and proximate result of Defendants’wrongful actions as alleged in
this petition, Highlands has suffered and will continue to suffer imminent injury
that will be irreparable and for which no remedy at law exists.
Highlands is willing to post a reasonable bond to facilitate the injunctive relief
requested; however, it is simply asking the Court to force Safehaven and Michael
Bosco to honor its promises Therefore, Highlands request that any bond be
nominal.
The only adequate, effective, and complete relief to Highlands is to restrain
Defendant from further engaging in certain proscribed activities, as set forth
below. Pursuant to Texas Rule of Civil Procedure and Texas Civil Practice and
Remedies Code § 65.001, et seq., and in order to preserve the status quo during the
pendency of this action, Highlands seeks a temporary restraining order, and on
hearing, a temporary and permanent injunction, ordering and immediately
restraining Defendants, including Defendants’ agents, servants, employees,
independent contractors, attorneys, representatives, and those persons or entities
in active concert or participation from
ontacting any Departing Customer, as that term is defined in
Safehaven Pest Control, LLC’s Limited Liability Company Agreement
LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER
RIGINAL ETITION Page
estroying or deleting of any documents, evidence or record,
electronic or otherwise, that relates to any of the matters implicated by this
lawsuit or pertaining to Highlands’ customers, Departing Customers, and any
List ACustomers
In addition, Plaintiff request that the Court order Defendants to:
Identify all of Highlands’ customers, Departing Customers, and any
List B Customers, they have Robo called, emailed, or provided services to
after July 10, 2015.
Prayer
For these reasons, Highlands Pest Management, LLC respectfully prays for the
following relief:
temporary restraining order, and upon hearing, a preliminary injunction
for the relief requested above;
b. Upon final trial, judgment against the Defendant for full permanent
injunctive relief, and for the full amount of the Highlands Pest Management,
LLC’sactual damages including, but not limited to, lost profits as found by the
trier of fact as a consequence of the Defendant conduct;
c. Prejudgmentinterest as provided by law;
d. Postjudgment interest as provided by law;
LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER
RIGINAL ETITION Page
e. Plaintiff’s reasonable and necessary attorneys’ fees in prosecuting its
claim(s) through trial and, if necessary, through appeal;
f. Allcosts of suit; and
g. Suchother and further relief, at law or in equity, t hatPlaintiff is entitled
Respectfully submitted
Michael Melder (No. 24010858)
Jeter Melder, LLP
6301 Gaston Avenue, Suite 730
Dallas, TX 75214
(214) 281 8770 Main
(214) 593 3663 Fax
mail: michael@jetermelder.com
ATTORNEYFOR PLAINTIFF
Certification
To the best of counsel's knowledge, the case in which this application is presented
is not subject to transfer under Local Rule 1.06.
LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER
RIGINAL ETITION Page
Preview
CAUSE NO. Highlands Pest § IN THE DISTRICT COURT OF Management, LLC. § § Plaintiff. § § § DALLAS COUNTY , TEXAS § Safehaven Pest Control, § LLC and Michael Bosco § § Defendants . § _____ JUDICIAL DISTRICT PLAINTIFF’S APPLICATION FOR TEMPORARY RESTRAINING ORDER & ORIGINAL PETITION Plaintiff Highlands Pest Management, LLC files its Application for Temporary Restraining Order & Original Petition complaining of Defendant SafehavenPest Control, LLC and Michael Bosco as follows: Discovery Level iscovery should be conducted in accordance with a discovery control plan under Texas Rule of Civil Procedure 190.3. LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER RIGINAL ETITION- Page 1 Parties and Service Plaintiff, Highlands Pest Management, LLC is a limited liability company duly formed and existing under the laws of the State of Texas. Its principal office is located at 9017 Larchwood, Dallas, TX 75238in Dallas County, Texas. Defendant, Safehaven Pest Control, LLC is a limited liability company duly formed and existing under the laws of the State of Texas. Its principal office is located at 2609 National Circle, Garland, Texasin Dallas County, Texas. It can be served with process through its registered agent, Michael Bosco at Club Glen Dr., Dallas, TX 75243. USA Defendant, Michael Bosco, is an individual and a resident of Dallas County, Texas; he can be served with process at 9206 Club Glen Dr., Dallas, TX 75243 Venue Plaintiff’s action against Defendant is properly maintainable in Dallas County, Texas because venue is based on county of defendant’s residence Defendant Michael Boscoresides at lub Glen Dr., Dallas, TX 75243,which is located in Dallas County, Texas LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER RIGINAL ETITION Page Relationship of Parties Highlands Pest Management, LLC is in the business of providing commercial and residential pest control and management. Patrick Bosco is the owner of Highlands Pest Management, LLC. Safehaven Pest Control, LLC is in the business of providing commercial and residential pest control and management. It is competitive to Highlands Pest Management, LLC. Michael Bosco is the owner of Safehaven Pest Control, LLC. Michael Bosco on behalf of Safehaven Pest Control, LLC, entered into a company agreement with Patrick Bosco; portions of which are attached as Exhibit A to Exhibit 1. The company agreement contained non competition provisions, which take effect upon division of Safehaven Pest Control, LLC. Patrick and Michael Bosco divided the Safehaven Pest Control, LLC in July 2015. Michael Bosco and Safehaven Pest Control, LLC have violated the non competition provisions of Safehaven Pest Control, LLC’s Company Agreement LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER RIGINAL ETITION Page Defendants Misconduct 12. Patrick Bosco is the owner of Highlands Pest Management, LLC. A company he started around the time he elected to leave Safehaven as an owner. Exhibit 1, para. 1 13. Patrick Bosco elected to leave Safehaven in June of 2015 because of fundamental disagreements in management style he had with his brother, Michael Bosco. Exhibit 1, para. 3 14. Patrick Bosco elected one of several methods to divide the company. According to Section 10.9 of the company agreement, Patrick could choose to equally divide Safehaven’s customers and walk away. Exhibit 1, para 5Paragraph 10.9(c) states: Within days after Election Date, Electing Member will prepare and deliver Non Electing Members written list dividing the Company's customers into two groups. These two groups will divided such way that, greatest extent possible, number customers each group approximately equal, and revenue received from each group during oneyear period preceding Election Date approximately equal. Exhibit 1, para. 5 15. Approximately one month later Patrick and Michael successfully divided Safehaven’s customers. The closed on the division on July 10, 2015. Exhibit 1, para. 6 16. Patrick Bosco walked away as the Departing Member with his customers, which were called Departing Customers; these customers were on a “List A”.Safehaven as the Retaining Member retained its own customers, which were called Retained Customers.Id. Safehaven’s customers were on a “List B”. 17. In order to protect their newly minted customer relationships, Safehaven Pest Control, LLC’s Company Agreement provided protections to both Patrick and Michael Bosco. It prevented them from poaching the other’s customers. Paragraph 12.4 (b) (c) states, in part: LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER RIGINAL ETITION Page Alternative Restrictions in Case of Company Division. If the Company is divided pursuant to Section 10.9, the Departing Member will not be subject to Sections 12.1, 12.2, or 12.3 after the Division Closing Date, and instead the Departing Member, Retaining Member, and the Company will be subject to the following restrictions after the Division Closing Date: (b) After Division Closing Date, Departing Member will free sell provide any goods services Company provides, own, operate, employed business which competes with Company, and otherwise compete with Company, provided that Departing Member must comply with paragraphs (a) and (b) above. (c) For period two years . . . the Company . . . will not, directly indirectly sell provide, offer sell provide, any goods services relating pest control eradication, mosquito control eradication, mosquito spraying any Departing Customers. Exhibit A 18. There is no ambiguity as to what Patrick and Michael intended. They wanted to keep the other from poaching customers for two years. Simply put, Michael Bosco and Safehaven Pest Control promised not to touch Patrick Bosco’s List A customers. 19. here has been some inadvertent crossover. For instance, Highlands’ Pest Management has been contacted twice by Safehaven customers. Exhibit 1, para. 10. One such customer happened to be on both Safehaven and Highlands’ customer lists. . The other reached out to Highlands; once Highlands discovered which list the customer was on, it directed the customer to Safehaven. 20. The same cannot be said of Safehaven. Michael Bosco and Safehaven Pest Control have engaged in a campaign to sell or provide goods or services related to pest control or eradication, mosquito control or eradication, or mosquito spraying to Highlands’ customers. 21. Safehaven has contacted Highlands’ customers by personal visits, phone and email. Exhibit 1, para. 12 LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER RIGINAL ETITION Page 22. Safehaven has contacted Highlands’ customers by phone using robo calls. 23. Safehaven has contacted Highlands’ customers by email. 24. Safehaven has made personal visits to Highlands’ customers to provide services. 25. In addition, Safehaven has invoiced Highlands’ customer for service rendered. Exhibit 1, para 15. 26. recently as September 23, 2015, Patrick Bosco learned that Safehaven provided services to Planation Pet House, a Highlands customer. Safehaven has been contacting Highlands customers in violation of Section 12.4 of Safehaven Pest Control, LLC’s Limited Liability Company Agreement. VI. Cause of Action: Breach of Contract Patrick Bosco and Michael Bosco entered into Safehaven Pest Control, LLC’s Limited Liability Company Agreement. They agreed that upon the division of SafehavenPest Control , they would not sell or provide goods or services related to pest control or eradication, mosquito control or eradication, or mosquito spraying to each other’s customers. The reement’s noncompetition covenants are ancillary to an otherwise enforceable agreement and they are reasonable in time, scope and geography. Michael Bosco and Safehaven Pest Control, LLChave breached Safehaven Pest Control, LLC’s Limited Liability Company Agreementby contacting and diverting Highlands’ customers LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER RIGINAL ETITION Page Because of Defendant breach of the agreement, Highlands is being damaged; therefore, it seeks injunctive reliefand damages Plaintiff’s Injuries and Damages Defendant violation of Section 12.4 of Safehaven Pest Control, LLC’s Limited Liability Company Agreement has and will continue to damage and injureHighlands Pest Management. More specifically, Defendants are contacting Highlands’ customers and seeking to do business with them in violation of Section 12.4. Defendant actions are causing Highland Pest Management damages in an amount within the jurisdictional limits of the court. VIII. Preliminary and Permanent Injunctive Relief In order to stop Michael Bosco and Safehaven’s blatant violation of its own agreement Section 12.4, Highlands Pest Management needs injunctive relief Highlands has alleged breach of contract against Defendant , and as indicated in this petition and in the affidavit Patrick Bosco, which is attached as Exhibit and incorporated by reference, Highlands Pest Management has shown a probable right of recovery and likelihood of success on the merits, Highlands is and will continue to suffer imminent, irreparable harm without Court intervention, and there is no adequate remedy at la Highlands needs a temporary restraining LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER RIGINAL ETITION Page order and injunctive relief to stop Safehaven from violating its own agreement, not to compete. As a direct and proximate result of Defendants’wrongful actions as alleged in this petition, Highlands has suffered and will continue to suffer imminent injury that will be irreparable and for which no remedy at law exists. Highlands is willing to post a reasonable bond to facilitate the injunctive relief requested; however, it is simply asking the Court to force Safehaven and Michael Bosco to honor its promises Therefore, Highlands request that any bond be nominal. The only adequate, effective, and complete relief to Highlands is to restrain Defendant from further engaging in certain proscribed activities, as set forth below. Pursuant to Texas Rule of Civil Procedure and Texas Civil Practice and Remedies Code § 65.001, et seq., and in order to preserve the status quo during the pendency of this action, Highlands seeks a temporary restraining order, and on hearing, a temporary and permanent injunction, ordering and immediately restraining Defendants, including Defendants’ agents, servants, employees, independent contractors, attorneys, representatives, and those persons or entities in active concert or participation from ontacting any Departing Customer, as that term is defined in Safehaven Pest Control, LLC’s Limited Liability Company Agreement LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER RIGINAL ETITION Page estroying or deleting of any documents, evidence or record, electronic or otherwise, that relates to any of the matters implicated by this lawsuit or pertaining to Highlands’ customers, Departing Customers, and any List ACustomers In addition, Plaintiff request that the Court order Defendants to: Identify all of Highlands’ customers, Departing Customers, and any List B Customers, they have Robo called, emailed, or provided services to after July 10, 2015. Prayer For these reasons, Highlands Pest Management, LLC respectfully prays for the following relief: temporary restraining order, and upon hearing, a preliminary injunction for the relief requested above; b. Upon final trial, judgment against the Defendant for full permanent injunctive relief, and for the full amount of the Highlands Pest Management, LLC’sactual damages including, but not limited to, lost profits as found by the trier of fact as a consequence of the Defendant conduct; c. Prejudgmentinterest as provided by law; d. Postjudgment interest as provided by law; LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER RIGINAL ETITION Page e. Plaintiff’s reasonable and necessary attorneys’ fees in prosecuting its claim(s) through trial and, if necessary, through appeal; f. Allcosts of suit; and g. Suchother and further relief, at law or in equity, t hatPlaintiff is entitled Respectfully submitted Michael Melder (No. 24010858) Jeter Melder, LLP 6301 Gaston Avenue, Suite 730 Dallas, TX 75214 (214) 281 8770 Main (214) 593 3663 Fax mail: michael@jetermelder.com ATTORNEYFOR PLAINTIFF Certification To the best of counsel's knowledge, the case in which this application is presented is not subject to transfer under Local Rule 1.06. LAINTIFF S PPLICATION OR EMPORARY ESTRAINING RDER RIGINAL ETITION Page