Preview
FILED
2—CJT- ESERVE—l-JUR¥ DEMAND 3/20/2020 4:59PM
FELICIA PITRE
DISTRICT CLERK
DALLAS 00., TEXAS
Belinda Hernandez DEPUTY
DC-20-04765
Cause N0.
FOOD GLOBAL INNOVATION GP LLC, IN THE DISTRICT COURT
Plaintz'fl
V- H-150TH JUDICIAL DISTRICT
JW NUTRITIONAL LLC AND JESSE
WINDRIX,
Defendants DALLAS COUNTY, TEXAS
’
Plaintiffs Original Petition and Request for Disclosure
Plaintiff Food Global Innovation GP LLC (“Food Global”) files this Original Petition
against Defendants JW Nutritional LLC (“JWN”) and Jesse Windrix for conversion and Violation
of the Theft Liability Act. Food Global states the following in support:
STATEMENT OF THE CASE
Food Global markets and distributes dietary and nutritional supplement products under,
among other trademarks, VITAXTRONG. JWN is a Texas-based manufacturer of food products.
working relationship with JWN involved Food Global purchasing raw material from
’
Food Global s
third-party suppliers, delivering the materials directly to JWN, and JWN thereafter manufacturing
Food Global’s dietary and nutritional supplement products.
JWN, with Windrix’s direct oversight, stole Food Global’s purchased raw material. First,
JWN overproduced certain Food Global products, refused to credit Food Global for the used raw
material, and then sold the overproduced products to a Food Global competitor without Food
Global’s knowledge or consent. Second, Food Global demanded transfer of its raw material from
JWN’s warehouse to a different manufacturing facility, but JWN did not comply with Food
Global’s demand. JWN and Windrix ultimately misappropriated more than 20,000 pounds of raw
material from Food Global.
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE 1
DISCOVERY CONTROL PLAN
1. Pursuant to Rule 190.3, Food Global intends t0 conduct discovery under Level 3.
PARTIES
1. Plaintiff Food Global Innovation GP LLC is a Texas limited liabilitycompany, 10-
cated in Dallas County, Texas. Food Global’s sole member is a Texas resident.
2. DefendantJW Nutritional LLC is an Oklahoma limited liability company registered
to transact business in Texas. On information and belief,]WN’s sole member is a Texas resident.
JWN may be served with process through its registered agent, Jesse Windrix, located at 601 Cen-
tury Parkway, Suite 300, Allen, Texas 75013.
3. Defendant Jesse WindriX is the president ofJWN. He may be found at Century
Parkway, Suite 300, Allen, Texas 75013.
JURISDICTION AND VENUE
4. Jurisdiction is proper in this Court because the amount in controversy exceeds the
minimum jurisdictional threshold of this Court. Pursuant t0 Rule 47(c), Food Global seeks mone-
tary reliefbetween $200,000 and $1,000,000.
5. Venue isproper in Dallas County under Texas Civil Practice and Remedies Code
§ 15.002(a)(1) because a substantial part of the events 0r omissions giving rise to Food Global’s
claims occurred Within Dallas County.
B A C K G R OU N D
1. Food Global’s and JWN’s working relationship.
6. Food Global markets and distributes dietary and nutritional supplement products.
JWN is a manufacturer of dietary and nutritional supplement products.
7. Beginning in 2017,]WN manufactured dietary and nutritional supplement products
for Food Global to then market and distribute.
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE 2
8. 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.
9. JWN would store excess amounts 0f 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 overproduces Food Global product and does not credit for raw material used.
10. In April 2018, Food Global placed an order for JWN to manufacture Food Global’s
VITAXTRONG products, including the VX-Real Whey Mocha Cappuccino 5 1b product. JWN
manufactured the product from June to September 2018.
11. Food Global later discovered JWN overproduced 2,500 units of the VX—Real Whey
Mocha Cappuccino 5 1b product.
12. Food Global demanded to Windrix that JWN credit it for the raw material it pur-
chased andJWN used in the manufacture 0fthe 2,500 extra units 0f product. Despite the demand,
JWN did not credit Food Global for the now-depleted raw material.
13. Food Global refused to pay for the 2,500 extra units of the product, and the parties
did not come t0 an agreement 0n how t0 resolve the discrepancy.
14. Food Global also later discovered JWN sold the 2,500 extra units 0f product to a
Food Global competitor. JWN did not notify or seek permission from Food Global before selling
the extra units.
15. JWN used approximately 7,230 pounds 0f raw material when it overproduced the
2,500 units of product.
3. JWN steals raw material from Food Global.
16. In early 2019, Food Global submitted a work order for production of its products by
Nutrablend Foods, a different manufacturer located in New York. To facilitate production, Food
Global sought to transport its raw material then held in JWN’S warehouse to Nutrablend Foods.
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE 3
17. In preparation for transport, in late February and early March 2019, Food Global
and JWN coordinated to determine the exact amount of raw material held in JWN’s storage.
18. In March 2019, Food Global informed Windrix and John Carleton, JWN’s Ware-
house Manager, that JWN was in possession of 16,519 pounds of Food Global’s raw material.
Windrix and Carleton agreed with Food Global’s calculation of the outstanding raw material.
19. Food Global then demanded JWN turn over the 16,519 pounds of raw material to
Food Global.
20. However, despite Windrix agreeing to the amount of raw material owed to Food
Global, JWN never complied with Food Global’s demand.
21. Including the 7,230 pounds of raw material used in the overproduced units of Food
Global’s product, JWN and Windrix stole a total of at least 23,808 pounds of raw material from
Food Global.
22. 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.
CAUSES OF ACTION
Count 1: Conversion/Civil Theft
23. Food Global incorporates by reference the preceding paragraphs.
24. 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.
25. JWN and Windrix were aware JWN overproduced Food Global product but refused
to credit Food Global for the depleted raw material. Further, without Food Global’s knowledge or
plaintiff’s original petition and request for disclosure 4
consent, JWN sold the overproduced units to a Food Global competitor. JWN never returned or
credited Food Global for the stolen raw material.
26. Further, 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.
27. JWN and Windrix’s 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 (or to credit for spent raw
material).
28. 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.
29. 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: Violations of the Theft and Liability Act
30. Food Global incorporates by reference the preceding paragraphs.
31. 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.
32. 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).
plaintiff’s original petition and request for disclosure 5
33. 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
post-judgment interest, and court costs. Food Global also seeks uncapped exemplary damages
based on JWN’s theft amounting to a third-degree felony.
ATTORNEYS’ FEES
34. Food Global incorporates by reference the preceding paragraphs.
35. Food Global retained the undersigned attorneys to represent it in this case and has
agreed to pay them reasonable attorneys’ fees for services rendered and to be rendered in this case.
Food Global is entitled to recover its’ attorneys’ fees from JWN and Windrix under at least Tex.
Tex. Civ. Prac. & Rem. Code § 134.005(b).
DEMAND FOR JURY TRIAL
36. Food Global demands a trial by jury.
REQUEST FOR DISCLOSURE
37. Pursuant to Rule 194, Food Global has requested JWN and Windrix disclose, within
50 days of service of the original petition, the information or material described in Rule 194.2.
PRAYER FOR RELIEF
Food Global prays that the Court enter judgment awarding them the following relief:
A. Actual damages, including consequential damages.
B. Exemplary damages;
C. Attorneys’ fees and expenses;
D. Costs;
E. Pre- and post-judgment interest; and
F. All other relief Food Global is entitled to.
plaintiff’s original petition and request for disclosure 6
March 20, 2020 Respectfully submitted,
GRIFFITH BARBEE PLLC
/s/ Casey Grzfi‘z‘th
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 Food Global
Innovation GP LLC
CERTIFICATE 0F SERVICE
I certify that on March 20, 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 Grz'fiith
Casey Griffith
PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE 7
Preview
FILED 2—CJT- ESERVE—l-JUR¥ DEMAND 3/20/2020 4:59PM FELICIA PITRE DISTRICT CLERK DALLAS 00., TEXAS Belinda Hernandez DEPUTY DC-20-04765 Cause N0. FOOD GLOBAL INNOVATION GP LLC, IN THE DISTRICT COURT Plaintz'fl V- H-150TH JUDICIAL DISTRICT JW NUTRITIONAL LLC AND JESSE WINDRIX, Defendants DALLAS COUNTY, TEXAS ’ Plaintiffs Original Petition and Request for Disclosure Plaintiff Food Global Innovation GP LLC (“Food Global”) files this Original Petition against Defendants JW Nutritional LLC (“JWN”) and Jesse Windrix for conversion and Violation of the Theft Liability Act. Food Global states the following in support: STATEMENT OF THE CASE Food Global markets and distributes dietary and nutritional supplement products under, among other trademarks, VITAXTRONG. JWN is a Texas-based manufacturer of food products. working relationship with JWN involved Food Global purchasing raw material from ’ Food Global s third-party suppliers, delivering the materials directly to JWN, and JWN thereafter manufacturing Food Global’s dietary and nutritional supplement products. JWN, with Windrix’s direct oversight, stole Food Global’s purchased raw material. First, JWN overproduced certain Food Global products, refused to credit Food Global for the used raw material, and then sold the overproduced products to a Food Global competitor without Food Global’s knowledge or consent. Second, Food Global demanded transfer of its raw material from JWN’s warehouse to a different manufacturing facility, but JWN did not comply with Food Global’s demand. JWN and Windrix ultimately misappropriated more than 20,000 pounds of raw material from Food Global. PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE 1 DISCOVERY CONTROL PLAN 1. Pursuant to Rule 190.3, Food Global intends t0 conduct discovery under Level 3. PARTIES 1. Plaintiff Food Global Innovation GP LLC is a Texas limited liabilitycompany, 10- cated in Dallas County, Texas. Food Global’s sole member is a Texas resident. 2. DefendantJW Nutritional LLC is an Oklahoma limited liability company registered to transact business in Texas. On information and belief,]WN’s sole member is a Texas resident. JWN may be served with process through its registered agent, Jesse Windrix, located at 601 Cen- tury Parkway, Suite 300, Allen, Texas 75013. 3. Defendant Jesse WindriX is the president ofJWN. He may be found at Century Parkway, Suite 300, Allen, Texas 75013. JURISDICTION AND VENUE 4. Jurisdiction is proper in this Court because the amount in controversy exceeds the minimum jurisdictional threshold of this Court. Pursuant t0 Rule 47(c), Food Global seeks mone- tary reliefbetween $200,000 and $1,000,000. 5. Venue isproper in Dallas County under Texas Civil Practice and Remedies Code § 15.002(a)(1) because a substantial part of the events 0r omissions giving rise to Food Global’s claims occurred Within Dallas County. B A C K G R OU N D 1. Food Global’s and JWN’s working relationship. 6. Food Global markets and distributes dietary and nutritional supplement products. JWN is a manufacturer of dietary and nutritional supplement products. 7. Beginning in 2017,]WN manufactured dietary and nutritional supplement products for Food Global to then market and distribute. PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE 2 8. 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. 9. JWN would store excess amounts 0f 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 overproduces Food Global product and does not credit for raw material used. 10. In April 2018, Food Global placed an order for JWN to manufacture Food Global’s VITAXTRONG products, including the VX-Real Whey Mocha Cappuccino 5 1b product. JWN manufactured the product from June to September 2018. 11. Food Global later discovered JWN overproduced 2,500 units of the VX—Real Whey Mocha Cappuccino 5 1b product. 12. Food Global demanded to Windrix that JWN credit it for the raw material it pur- chased andJWN used in the manufacture 0fthe 2,500 extra units 0f product. Despite the demand, JWN did not credit Food Global for the now-depleted raw material. 13. Food Global refused to pay for the 2,500 extra units of the product, and the parties did not come t0 an agreement 0n how t0 resolve the discrepancy. 14. Food Global also later discovered JWN sold the 2,500 extra units 0f product to a Food Global competitor. JWN did not notify or seek permission from Food Global before selling the extra units. 15. JWN used approximately 7,230 pounds 0f raw material when it overproduced the 2,500 units of product. 3. JWN steals raw material from Food Global. 16. In early 2019, Food Global submitted a work order for production of its products by Nutrablend Foods, a different manufacturer located in New York. To facilitate production, Food Global sought to transport its raw material then held in JWN’S warehouse to Nutrablend Foods. PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE 3 17. In preparation for transport, in late February and early March 2019, Food Global and JWN coordinated to determine the exact amount of raw material held in JWN’s storage. 18. In March 2019, Food Global informed Windrix and John Carleton, JWN’s Ware- house Manager, that JWN was in possession of 16,519 pounds of Food Global’s raw material. Windrix and Carleton agreed with Food Global’s calculation of the outstanding raw material. 19. Food Global then demanded JWN turn over the 16,519 pounds of raw material to Food Global. 20. However, despite Windrix agreeing to the amount of raw material owed to Food Global, JWN never complied with Food Global’s demand. 21. Including the 7,230 pounds of raw material used in the overproduced units of Food Global’s product, JWN and Windrix stole a total of at least 23,808 pounds of raw material from Food Global. 22. 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. CAUSES OF ACTION Count 1: Conversion/Civil Theft 23. Food Global incorporates by reference the preceding paragraphs. 24. 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. 25. JWN and Windrix were aware JWN overproduced Food Global product but refused to credit Food Global for the depleted raw material. Further, without Food Global’s knowledge or plaintiff’s original petition and request for disclosure 4 consent, JWN sold the overproduced units to a Food Global competitor. JWN never returned or credited Food Global for the stolen raw material. 26. Further, 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. 27. JWN and Windrix’s 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 (or to credit for spent raw material). 28. 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. 29. 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: Violations of the Theft and Liability Act 30. Food Global incorporates by reference the preceding paragraphs. 31. 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. 32. 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). plaintiff’s original petition and request for disclosure 5 33. 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 post-judgment interest, and court costs. Food Global also seeks uncapped exemplary damages based on JWN’s theft amounting to a third-degree felony. ATTORNEYS’ FEES 34. Food Global incorporates by reference the preceding paragraphs. 35. Food Global retained the undersigned attorneys to represent it in this case and has agreed to pay them reasonable attorneys’ fees for services rendered and to be rendered in this case. Food Global is entitled to recover its’ attorneys’ fees from JWN and Windrix under at least Tex. Tex. Civ. Prac. & Rem. Code § 134.005(b). DEMAND FOR JURY TRIAL 36. Food Global demands a trial by jury. REQUEST FOR DISCLOSURE 37. Pursuant to Rule 194, Food Global has requested JWN and Windrix disclose, within 50 days of service of the original petition, the information or material described in Rule 194.2. PRAYER FOR RELIEF Food Global prays that the Court enter judgment awarding them the following relief: A. Actual damages, including consequential damages. B. Exemplary damages; C. Attorneys’ fees and expenses; D. Costs; E. Pre- and post-judgment interest; and F. All other relief Food Global is entitled to. plaintiff’s original petition and request for disclosure 6 March 20, 2020 Respectfully submitted, GRIFFITH BARBEE PLLC /s/ Casey Grzfi‘z‘th 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 Food Global Innovation GP LLC CERTIFICATE 0F SERVICE I certify that on March 20, 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 Grz'fiith Casey Griffith PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE 7