Motion for Change of Venue in FOOD GLOBAL INNOVATION GP LLC vs. JW NUTRITIONAL LLC, et al| Trellis.Law

On March 20, 2020 a Motion,Ex Parte was filed involving a dispute between Food Global Innovation Gp Llc, and Jw Nutritional Llc, Windrix, Jesse, for OTHER (CIVIL) in the District Court of Dallas County.

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FILED
4/17/2020 4:51PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
DEPUTY
Kellie Juricek

CAUSE No. DC—20—O4765

FOOD GLOBAL INNOVATION GP LLC, § IN THE DISTRICT COURT
§
Plain tiﬁ, §
§
vs. § 160TH JUDICIAL DISTRICT
§
JW NUTRITIONAL LLC, and JESSE WINDRIX, §
§
Defendan ts. § DALLAS COUNTY, TEXAS

DEFENDANTS’ MOTION TO TRANSFER VENUE

This is the second of two lawsuits brought by Plaintiff Food Global Innovation GP LLC

(“Food Global”) against Defendants JW Nutritional LLC (“JWN”) and Jesse Windrix (“Windrix”).

The first suit,originally filed on October 28, 2019, in Collin County, Texas, asserts Claims of breach

0f contract, breach of express warranty, Texas DTPA Violations, and fraud by nondisclosure arising

out of the Exclusive Manufacturing Supply Agreement (“MSA”) that governs the business

relationship between the parties.1 The instant suit also arises out 0f the MSA between the parties—

which includes specific provisions related to the manufacture of products and the purchase, storage,

and use of the raw materials the subject 0f Food Global’s claims herein—but asserts claims 0f

conversion and Violation of the Texas Theft Liability Act, including allegations of criminal liability

on the part of Defendants.2

1
See Exhibit A.
2
See Dkt. No. 1.

DEFENDANTS’ MOTION T0 TRANSFER VENUE
As set forth in Food Global’s own pleadings in the Collin County matter, venue of this suit

is not proper in Dallas County, but in Collin County (1) pursuant t0 the parties’ agreement t0

exclusive jurisdiction and venue in Collin County, Texas; (2) where JWN’S principal office islocated;

(3) where Windrix resides; and (4) Where a substantial portion of the acts 0r omissions giving rise to

Food Global’s claims occurred, including JWN’S performance 0f its obligations under the MSA.

Accordingly, Defendants request a transfer 0f venue t0 Collin County, Texas, the county 0f

proper venue, so that both cases can be consolidated.

BACKGROUND

1. Food Global markets and distributes dietary and nutritional supplement products

under the trademark VITAXTRONG. JWN is a small company in the business 0f manufacturing

food products, with its principal place 0f business in Collin County, Texas. Defendant Windrix is

also a resident of Collin County, Texas.

2. In August 2017, JWN and Food Global entered into the MSA, Which governs the

relationship between the parties, including JWN’S manufacture of products for Food Global. The

MSA also governs the purchase, storage, and use of the raw materials the subject of Plaintiff’s Claims

herein.3 JWN’S obligations under the MSA were performed in Collin County, Texas.4

3. Under the express provisions 0f the MSA, “[a]ny court proceeding permitted under

this Agreement shall be brought before a state court located in Collin County, Texas, 0r federal

court in the United States District Court for the Eastern District of Texas, Sherman Division. Each

3
See Declaration of Jesse Windrix, attached as Exhibit B, at 1[3 and B—l.
4
Seeid. atﬂ 6.

DEFENDANTS’ MOTION T0 TRANSFER VENUE PAGE 2
party hereby consents t0 the exercise of personal jurisdiction by any such court with respect to any

such proceeding.”

4. JWN manufactured product for Food Global for several years Without issue. In late

2018—63th 2019, the parties began discussing re—negotiating their MSA, and JWN requested that

Food Global make alternate arrangements for storage and the building of orders for delivery.6

5. Ultimately, the relationship between the parties began to break down, and 0n

October 28, 2019, Plaintiff filed itsoriginal lawsuit against Defendants in the 380th Judicial District

Court 0f Collin County, Texas.7 Food Global initially asserted Claims of breach 0f contract, breach

of express warranty, and Texas DTPA claims arising out of the MSA, but amended its petition on

March 9, 2020, t0 add a claim for fraud by n0n—disclosure.8 In Paragraph 5 of itsAmended Petition

in the Collin County lawsuit, Food Global admits that jurisdiction in Collin County isproper. In

Paragraph 6 0f that pleading, Food Global expressly maintains that “venue is proper in Collin

County under Texas Civil Practice and Remedies Code §§ 15.00Z(a)(1) and (3) because a substantial

part of the events 0r omissions giving rise t0 Food Global’s claims occurred within Collin County

and JWN’S principal office in this state isin Collin County.” Plaintiff further admits that “venue is

also proper in Collin County because Food Global and JWN agreed in the MSA t0 exclusive

jurisdiction and venue in Collin County...”

6. Just days later, 0n March 20, 2020, Plaintiff ﬁled the instant action. Food Global

asserts that Defendants overproduced certain Food Global products, refused t0 credit Food Global

5
See Exhibit B—l at § 23(d).
6
Exhibit B at115.
7
Seeid.;see alsoExhibit A.
8
Amended
See Plaintiff’s First Petition, Collin County, attached as Exhibit C.
9
Seeid. at116, p. 2.

DEFENDANTS’ MOTION T0 TRANSFER VENUE PAGE 3
for the used raw material, and then sold the overproduced products to a competitor without Food

Global’s knowledge or consent. Food Global also maintains that Defendants refused to return any

remaining raw materials as requested.”

7. In the instant petition, Food Global pleaded the following venue facts: “venue is

proper in Dallas County under Texas Civil Practice and Remedies Code § 15.00Z(a)(1) because a

substantial part 0f the events 0r omissions giving rise to Food Global’s claims occurred Within Dallas

C0unty.”11

8. Defendants specifically deny that “a substantial part 0f the events or omissions giving

rise t0 Food Global’s claims occurred within Dallas County.” JWN’s manufacturing and production

of products for Food Global and others (Which would encompass the overproduction alleged by

Food Global and denied by JWN), and any accounting related to Food Global’s account occurred

only in Collin County, Texas. The individual defendant, Jesse Windrix, also resides in Collin

County, Texas.” Defendants’ only connection to Dallas County isthe use of a third—party off—site

storage facility located in Mesquite, Texas for the storage of a small amount 0f raw material—some

or all0f which was short dated and which JWN replaced With fresh raw material shipped t0 Food

Global from its location in Plano, Collin County, Texas.”

9. Moreover, and importantly, Food Global has failed t0 disclose t0 this Court the

existence 0f the original Collin County lawsuit 0r the MSA governing the relationship between the

10
See Dkt. N0. 1.
11
See Dkt. No. 1 at1I5.
12
See Exhibit B at 1m Z, 6'7.
13
Id. at11 6.

DEFENDANTS’ MOTION T0 TRANSFER VENUE PAGE 4
parties—expressly including the manufacture of products by JWN and the purchase, storage, and use

of raw materials—where the parties agreed t0 exclusive venue in Collin County, Texas.14

ARGUMENT AND AUTHORITIES

When a defendant challenges a plaintiff’s choice of venue, the burden then shifts t0 the

plaintiff to present pn’ma facie evidence that venue is maintainable in the county of suit.” Pursuant

t0 the general venue provision in TEX. PRAC. 8L REM. CODE § 15.002, “alllawsuits shall be brought:

(1) in the county in which allof a substantial part of the events or omissions giving rise to the claim

occurred; (2) in the county of defendant’s residence at the time the cause 0f action accrued if

defendant isa natural person; (3) in the county 0f the defendant’s principal office in this state, ifthe

defendant isnot a natural person; or (4) ifsubdivisions (1), (2), and (3) do not apply, in the county

in which the plaintiff resided at the time of the accrual of the cause 0f action.” Although Food

Global maintains that “venue is proper in Dallas County under Texas Civil Practice and Remedies

Code § 15.002(a)(1),” Defendants’ specifically deny that a substantial part 0f the events or omissions

giving rise t0 Food Global’s claims occurred in Dallas County and seek a transfer of venue from

Dallas County t0 Collin County, Texas, where venue is proper pursuant t0 TEX. CIV. PRAC. 8L REM.

CODE § 15.002(a)(1), (2), and (3).

A. Venue isimproper in Dallas County, Texas.

Venue is improper in Dallas County, Texas, because a substantial part 0f the events or

omissions giving rise to Food Global’s claims herein did not occur in Dallas County, as alleged, but

14
See, e.g.Exhibits A, B, and Bvl.
15
TEX. R. CIV. P. Highland Capital
87(2)(a), (3X31); Mgmt, LP. U.Ryder Scott Co., 212 SW. 3d 522, 535 (Tex.
App.—H0uston [1“ Dist] 2006), citing Chiriboga v.State Farm Mut. Auto Ins.Co., 96 S.W.3d 673, 678 (Tex.
App.—Austin 2003, n0 pet).
16
TEX. CIV. PRAC. & REM. CODE § 15.002.

DEFENDANTS’ MOTION T0 TRANSFER VENUE PAGE 5
in Collin County, Texas, where JWN’S principal place ofbusiness is located, where Defendant Jesse

Windrix resides, and where the parties agreed to exclusive jurisdiction and venue. Food Global has

judicially admitted these facts in itsoriginal lawsuit in Collin County, and at least in part in the

instant petition.” Importantly, Defendants undertook n0 activities in Dallas County 0n behalf 0f

Food Global that form the subject 0f the Claims asserted herein—as noted above, Defendants’ only

contact with Dallas County even potentially related to this lawsuit isthe storage 0f a small amount

0f raw materials at a third—party facility in Mesquite, Texas (not a JWN facility).

B. Venue isproper in Collin County, Texas.

Because venue over this case isgoverned by the general venue rule in TEXAS CIVIL PRACTICE

8L REMEDIES CODE § 15.00Z(a)(1), (2), and (3), this case should be transferred to Collin County,

Texas. TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1)’(3); see also TEX. CIV. PRAC. & REM. CODE

§15.063(1) (Ifvenue is not proper in the county where the case is pending, the court must, 0n the

defendant’s timely motion, transfer the case to a county 0f proper venue); Wichita Cty. v. Hart, 917

SW2d 779, 781 (Tex. 1996) (a defendant raises the question 0f proper venue by challenging the

plaintiff’s choice 0f venue through a motion t0 transfer venue).

The relationship between Food Global and Defendants—including the parties’ agreement

specific t0 the production of final product and purchase, use, and storage of raw material—is

governed by the Exclusive MSA executed by and between the parties in August 2017. In that

agreement, the parties expressly agreed that “[a]ny court proceeding permitted under this

Agreement shall be brought before a state court located in Collin County, Texas, or federal court

in the United States District Court for the Eastern District 0f Texas, Sherman Division. Each party

17
See Dkt. N0. 1 at1m 2'3; Exhibit A at 1111 Exhibit Bvl
3'4; see also at § 23(d).

DEFENDANTS’ MOTION T0 TRANSFER VENUE PAGE 6
hereby consents t0 the exercise 0f personal jurisdiction by any such court With respect t0 any such

proceeding.”18 Accordingly, Collin County is the proper county of venue pursuant t0 the express

venue provision agreed upon by the parties to this action.

Moreover, JWN’s manufacturing and production 0f products for Food Global, and any

accounting related to Food Global’s account occurred only in Collin County, Texas. Thus, to the

extent Defendants overproduced product using Food Global’s raw materials (which Defendants

expressly deny), such production occurred at JWN’S manufacturing facility in Collin County, Texas.

Likewise, apart from a small amount maintained by a third party in Mesquite, Texas, Defendants’

storage 0f raw materials on behalf 0f Food Global also occurred in Collin County and all shipments

of fresh replacement raw material t0 Food Global occurred in Collin County. Thus, Collin County

is the county 0f proper venue under the general venue statute because it is the county Where a

substantial part of the events 0r omissions giving rise to the claims occurred.”

Collin County is also the county 0f proper venue under the general venue rule because it is

the county 0f JWN’S principal office in this state and the county of residence for individual

Defendant Jesse Windrix as well.” A “principal office” means “a principal office of the corporation,

unincorporated association, 0r partnership in this state in which the decision makers for the

organization Within this state conduct the daily affairs 0f the organization.”21 JWN’S principal office

is located at 601 Century Parkway, Suite 300, Allen, Collin County, Texas, 75013, and any product

manufacturing by JWN for Food Global took place in Collin County.

18
See Exhibit B—l at § 23(d).
19
TEX. CIV. PRAC. & REM. CODE §15.002(a)(1).
20
TEX. CIV. PRAC. & REM. CODE §15.002(a)(2) and In
(3); see also Te Mo. Pac.RR. C0.,998 S.W.Zd 212,
216217 (Tex. 1999).
21
See TEX. CIV. PRAC. & REM. CODE §15.001(a).

DEFENDANTS’ MOTION T0 TRANSFER VENUE PAGE 7
C. Alternatively, Defendants request a transfer of venue for convenience.

Defendants maintain that venue over this cause isproper only in Collin County, Texas,

pursuant t0 the general venue rule as set forth above. Nevertheless, and solely in the alternative,

Defendants request that the Court transfer the case t0 Collin County in the interest 0f justice and

for the convenience 0f Defendants and itsWitnesses pursuant to TEX. CIV. PRAC. 8L REM. CODE

§15.002(b).

T0 begin with, maintaining this suit in Dallas County will impose an economic and personal

hardship 0n Defendants.” Defendants operate principally out of Collin County, Texas.

Defendants’ principal office, any employees and key Witnesses, and documents pertinent t0 this

suit are all located in Collin County. Additionally, Food Global has already instituted a lawsuit

against Defendants in Collin County; requiring Defendants t0 defend itself in two separate

counties on claims that arise out 0f the same nucleus 0f facts—the parties’ relationship and

agreement and Defendants’ manufacture of goods and storage of materials 0n behalf of Food

Global—WOUId impose undue economic and personal hardships 0n Defendants, including but not

limited t0 the duplication 0f costs and efforts in two separate counties, when the disputes can more

efﬁciently and economically be handled in the same county, and preferably in the same suit.” And,

while Food Global may not be concerned about the duplication 0f costs and/or efforts, and may

even be willing t0 undertake such inefficiencies, these factors demonstrate that the balance 0f

interests 0f all parties weighs in favor 0f the action being brought in Collin County, Texas.“

22
TEX. CIV. PRAC. & REM. CODE §15.002(b)(1).
23
See Exhibit B at 11 8. Based on Defendants’ understanding 0f Dallas Loc. R. 1.04, request for consolidation
must be made t0 the prior court with the lower case number such that Defendants’ must first seek transfer
0f venue from Dallas County t0 Collin County before requesting consolidation 0f the two matters from the
court of original jurisdiction in Collin County, Texas.
24
TEX. CIV. PRAC. & REM. CODE §15.002(b)(2).

DEFENDANTS’ MOTION T0 TRANSFER VENUE PAGE 8
Finally, and importantly, transfer of this cause from Dallas County t0 Collin County will

not cause a hardship or injustice to any other party. Indeed, Food Global’s Willingness to enter into

the MSA for the manufacture of goods and other obligations, including an express venue provision

specific t0 Collin County, and itsinstitution 0f the original lawsuit against JWN in Collin County

indicates a lack 0f hardship or injustice and Food Global’s willingness and ability to conduct

business matters (and seek legal relief) in Collin County, Texas. Dallas County isnot a county of

mandatory venue but is a county 0f improper venue, and Collin County is a county 0f proper

venue.”

COSTS

Defendants ask that the Court tax against Plaintiff Food Global allcosts incurred before the

case istransferredm

CONCLUSION

Defendants specifically deny Plaintiff’s allegation that “a substantial part of the events 0r

omissions giving rise t0 Food Global’s claims occurred within Dallas County,” and maintain that

venue is improper in Dallas County, where Defendants d0 not reside 0r maintain a principal place

of office. T0 the contrary, a substantial part of the events 0r omissions giving rise t0 Food Global’s

claims 0f overproduction of product, improper sale 0f product, and conversion 0r failure t0 return

stored raw material alloccurred in Collin County, Texas, Where JWN’S principal place 0f business

is located, where JWN manufactures and stores product and raw materials, Where Defendant

Windrix resides, and where the parties agreed t0 exclusive jurisdiction and venue.

25
See TEX. R. CIV. P. §15.002(b).
26
See TEX. R. CIV. P. 89.

DEFENDANTS’ MOTION T0 TRANSFER VENUE PAGE 9
For these reasons, Defendants ].W. Nutritional LLC and Jesse Windrix respectfully request

that the Court set their motion t0 transfer venue for hearing and, after the hearing, grant

Defendants’ motion and transfer this case t0 Collin County, Texas.

Dated: April 17, 2020 Respectfully submitted,

/s/ Darin M. Klemchuk
Darin M. Klemchuk
Texas Bar N0. 24002418
darin.klemchuk@klemchuk.com
Mandi Phillips

Texas Bar N0. 240361 17
mandi.phillips@klemchuk.com
Brian Casper
Texas Bar N0. 24075563
brian.casper@klemchuk.com
KLEMCHUK LLP
8 150 N. Central Expressway
10th Floor
Dallas, Texas 75206
Tel: 214—367—6000
Fax: 214—367'6001

ATTORNEYS FOR DEFENDANT
JW NUTRITIONAL

DEFENDANTS’ MOTION T0 TRANSFER VENUE PAGE 10
CERTIFICATE 0F SERVICE

I certify that a true and correct copy 0f the foregoing document was served 0n allcounsel
of record 0n April 17, 2020, as follows:

VIA EMAIL:

Casey Griffith
Michael Barbee
Dallas Flick
GRIFFITH BARBEE PLLC
One Arts Plaza
1722 Routh St., Ste. 710
Dallas, Texas 75201
casey.griffith@grifﬁthbarbee.com
michaelbarbee@grifﬁthbarbee.com
dallas.ﬂick@griffithbarbee.c0m

ATTORNEYS FOR PLAINTIFF
FOOD GLOBAL INNOVATION GP LLC

/s/ Darin M. Klemchuk
Darin M. Klemchuk

DEFENDANTS’ MOTION T0 TRANSFER VENUE PAGE 11
EXHIBIT A
10/28/2019
10/28/201
Filed: 9 6:53PM
Lynne Finley
Clerk
District
Texas
Collin County,
380-06035-201 9 By McCabe Deputy
Allison
Envelope ID:38030071
Cause No.

FOOD GLOBAL INNOVATION GP LLC, IN THE DISTRICT COURT

Plaintiﬂ‘
Plaintz'ﬂ

v.
V-
JUDICIAL DISTRICT
JW NUTRITIONAL LLC,

Defendant
COLLIN COUNTY, TEXAS

Plaintiff’s Original Petition and Request for Disclosure

Plaintiff Food Global Innovation GP LLC (“Food Global”) ﬁles this Original Petition

against Defendant JW Nutritional LLC (“JWN”) for breach of express warranty and breaches of 0f

contract. 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 Texas—based manufacturer of food products.
a Texas-based

In 2017, Food Global and JWN entered into an Exclusive Manufacturing Supply Agreement (the

“
MSA ”), through which JWN agreed to manufacture dietary and nutritional supplement products
WhichJWN

for Food Global according to speciﬁcations outlined in the MSA (“VITAXTRONG Products”).
The MSA included warranties to ensure the manufacture ofVITAXTRONG Products would con-

form to Food Global’s speciﬁcations. The MSA also provided that JWN would indemnify Food

Global for any defects in VITAXTRONG Products that JWN manufactured.
JWN failed to manufacture VITAXTRONG Products according to the MSA’s speciﬁca-

tions. And, following a string of customer complaints concerning defective VITAXTRONG Prod-

ucts, JWN refused to indemnify Food Global for the defects and resulting damages suffered by

Food Global. JWN also refused t0 to conduct mediation concerning the defects and failure to indem-

nify, despite the MSA’s requirement that itdo so. Accordingly, Food Global seeks damages for

JWN’s
JWN’S breach of 0f express warranty and breaches 0f the MSA.

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCLOSURE 1

Unofficial Copy
DISCOVERY CONTROL PLAN

1. Pursuant to Rule 190.3, Food Global intends to conduct discovery under Level 2.

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 a Texas resident.
3. Defendant JW Nutritional LLC is an Oklahoma limited liability company registered
to transact business in Texas. On information and belief, JWN’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.

JURISDICTION AND VENUE

4. 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 over $200,000 but not more than $1,00,000.
5. Venue is proper in Collin County under Texas Civil Practice and Remedies Code
§§ 15.002(a)(1) and (3) because a substantial part of the events or omissions giving rise to Food
Global’s claims occurred within Collin County and JWN’s principal office in this state is in Collin

County. Venue is also proper in Collin County because the parties agreed in the MSA to exclusive
jurisdiction and venue in Collin County.

BACKGROUND

6. In August 2017, Food Global and JWN entered into the MSA.
7. The MSA contains warranties, including the following in § 11(a) of the MSA:

JWN represents and warrants to Buyer that all Products, Additional Products, and
New Products including packaging for Products, will conform in all material re-
spects . . . to . . . the formula, specification, and certificate of analysis therefor pro-
vided for such products . . . .

plaintiff’s original petition and request for disclosure 2

Unofficial Copy
8. JWN also agreed in § 16(a) of the MSA to indemnify Food Global for breaching its
warranties and for any customer complaints concerning defects in the products manufactured by
JWN:

JWN shall, at its expense, defend, indemnify and hold harmless Buyer, its affiliates,
officers, employees, agents and independent contractors, from and against any and
all liability, loss, cost, expense (including reasonable attorneys’ fees), judgments
and damages arising out of or in connection with: (a) a third party claim that Prod-
ucts, Additional Products, or New Products were manufactured utilizing improper
sanitary manufacturing and/or packaging conditions, contained improper ingredi-
ent purity, or contained foreign objects, or were negligently or defectively manufac-
tured by JWN; and (b) any breach by JWN of Section 11(a) of this Agreement.

9. Food Global has received complaints from customers who purchased affected lots
of VITAXTRONG Products (the “Defective Product”). Customers have complained, for exam-
ple, that after mixing the Defective Product with water as instructed and intended, black specks
appear and sink to the bottom of the beverage container. Customers have also complained that the
Defective Product is very bitter in taste.
10. The Defective Product does not conform with the MSA’s requirements.
11. As a result of JWN’s manufacture of Defective Product, Food Global recalled the
Defective Product.
12. Food Global notified JWN of the Defective Product at least as early as March 2019.
13. Under § 23(a) of the MSA, the parties agreed to consult in good faith to resolve any
disputes:

It is the intent and desire of the parties that any controversy, claim, dispute, disa-
greement, or difference (a “Dispute”), which arises between Buyer and JWN (the
“Disputing Parties”) relating to this Agreement, be resolved in an amicable manner
within thirty (30) days after either party requests in writing a meeting to effect [sic]
resolve a Dispute. The parties shall during such period consult in good faith to reach
a solution to such Dispute.

14. On July 10, 2019, in accordance with the Dispute Resolution provision in the MSA,
Food Global requested a meeting with JWN in an attempt to resolve this dispute. JWN ignored

plaintiff’s original petition and request for disclosure 3

Unofficial Copy
Food Global’s request. Then, on August 19, 2019, Food Global requested that JWN mediate the
dispute in accordance with § 23(b) of the MSA. JWN ignored that request as well, hence this suit.

CAUSES OF ACTION

Count 1: Breach of Express Warranty (TEX. BUS. & COM. CODE § 2.313)

15. Food Global incorporates by reference the preceding paragraphs.
16. Through the MSA, JWN made representations communicated to Food Global by
affirmations of fact and promises that relate to the title, quality, and characteristics of the goods

JWN manufactured and sold to Food Global. JWN’s representations by affirmations of fact and
promises became part of the basis of the bargain between the parties and created an express war-
ranty that the goods would conform to the affirmations of fact and promises set forth in the MSA.
17. The MSA also contained representations, through descriptions and specifications
for the goods to be manufactured by JWN, which were made part of the basis of the bargain and
created an express warranty that the goods manufactured by JWN and sold to Food Global would
conform to those descriptions and specifications as represented.
18. JWN also made representations to Food Global, communicated through samples,
as to the title, quality, and characteristics of the goods JWN manufactured and sold to Food Global.
These representations were made part of the basis of the bargain and created an express warranty
that the whole of the goods manufactured by JWN would conform to the samples as represented.
19. JWN manufactured and sold goods to Food Global that did not comply with JWN’s
express warranties and representations. Food Global notified JWN of the breach and provided
JWN a reasonable opportunity to cure.
20. As a result of JWN’s breach of warranty, Food Global has suffered injury.
21. Food Global seeks its actual damages, including direct, incidental, and consequen-
tial damages, its attorneys’ fees and expenses, pre- and post-judgment interest, and costs.
Count 2: Breach of Contract (Failure to Meet Specifications)
22. Food Global incorporates by reference the preceding paragraphs.

plaintiff’s original petition and request for disclosure 4

Unofficial Copy
23. Food Global and JWN entered into the MSA, in which JWN agreed to manufacture
product according to specifications established by the MSA. Food Global performed, and JWN
breached the MSA by failing to manufacture product according to the MSA’s specifications.
24. Food Global has suffered damages as a direct, proximate result of JWN’s breach.
Food Global seeks actual damages, attorneys’ fees, expenses, pre- and post-judgment interest, and
costs.
Count 3: Breach of Contract (Failure to Indemnify)
25. Food Global incorporates by reference the preceding paragraphs.
26. Food Global and JWN entered into the MSA, in which JWN agreed to indemnify
Food Global for breaching JWN’s warranties and for any customer complaints concerning defects
in Food Global’s products. Food Global performed, and JWN breached the MSA by failing to in-
demnify Food Global for damages suffered by Food Global because of JWN’s breaches of warranty

and manufacture of the Defective Product.
27. Food Global has suffered damages as a direct, proximate result of JWN’s breach.
Food Global seeks actual damages, attorneys’ fees, expenses, pre- and post-judgment interest, and
costs.
Count 4: Breach of Contract (Failure to Mediate)
28. Food Global incorporates by reference the preceding paragraphs.
29. Food Global and JWN agreed to resolve disputes arising from the MSA by meeting

to reach an amicable resolution (MSA § 23(a)), and if no amicable resolution can be reached, by
submitting the disputes to mediation (MSA § 23(b)). Food Global requested a meeting with JWN
pursuant to MSA § 23(a), but JWN breached the MSA by failing to agree to that request. Food
Global requested that JWN agree to conduct mediation pursuant to MSA § 23(b), but JWN
breached the MSA by failing to agree to mediate the dispute.
30. Food Global has suffered damages as a direct, proximate result of JWN’s breach.
Food Global seeks actual damages, attorneys’ fees, expenses, pre- and post-judgment interest, and
costs.

plaintiff’s original petition and request for disclosure 5

Unofficial Copy
NOTICE OF CLAIM UNDER THE DECEPTIVE TRADE PRACTICES ACT

31. Food Global incorporates by reference the preceding paragraphs.
32. Pursuant to Texas Business and Commerce Code § 17.505, Food Global provides
notice that the allegations in this Petition give rise to claims under the Deceptive Trade Practices

Act. JWN’s actions constitute false, misleading, or deceptive acts that Food Global detrimentally
relied on. See TEX. BUS. & COM. CODE § 17.46(b). They also constitute breach of express war-
ranty. See id. § 17.50(a)(2). Food Global seeks economic damages, attorneys’ fees, and expenses of
at least $200,000.

ATTORNEYS’ FEES

33. Food Global incorporates by reference the preceding paragraphs.
34. 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 under at least TEX. CIV. PRAC. &
REM. CODE § 38.001 and the MSA.

CONDITIONS SATISFIED

35. Food Global incorporates by reference the preceding paragraphs.

36. Food Global has fully or substantially performed all acts necessary to perfect and
establish all claims and causes of action asserted in this lawsuit. All conditions precedent to Food

Global’s right to recover on the claims and causes of action asserted in this lawsuit have been dis-
charged, satisfied, or fully performed, or have occurred.

REQUEST FOR DISCLOSURE

37. Food Global incorporates by reference the preceding paragraphs.
38. Pursuant to Rule 194, Food Global requests that JWN disclose, within 50 days of
the service of this request, the information or material described in Rule 194.2.

DEMAND FOR JURY TRIAL

39. Food Global hereby respectfully requests a trial by jury.

plaintiff’s original petition and request for disclosure 6

Unofficial Copy
PRAYER FOR RELIEF
40. Food Global prays that the Court enter judgment awarding it the following relief:

a. Actual damages, including consequential and incidental damages;

b. Attorneys’ fees and expenses;

c. Costs;

d. Pre- and post-judgment interest; and

e. All other and further relief Food Global is entitled to.

October 28, 2019 Respectfully submitted,

GRIFFITH BARBEE PLLC

/s/ Casey Gr

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REDMOND, AIESHA Track Judge’s New Case

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Document Filed Date

April 17, 2020

Case Filing Date

March 20, 2020

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Motion,Ex Parte: FOOD GLOBAL INNOVATION GP LLC vs. JW NUTRITIONAL LLC, et al

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