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-Secondary 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
12/8/2020 11:12 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
John P White DEPUTY

Cause No. DC-20-04765

Foop GLOBAL INNOVATION GP LLC, IN THE DiIsTRICT CoURT

Plainuiff

160TH JUDICIAL DISTRICT
JW NurtRiTIoNaL LLC AnD JESSE
WINDRIX,

Defendants
DALLAS COUNTY, TEXAS

Plaintiffs Response to Defendants’ Amended Motion to Transfer Venue

Plaintiff Food Global Innovation GP LLC (“Food Global”) files this Response to Defend-

ants JW Nutritional LLC (“JWN”) and Jesse Windrix’s October 28, 2020 Amended Motion to

Transfer Venue (the “Amended Motion”).
TABLE OF CONTENTS

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SUMMARY OF THE ARGUMENT Bele ese le eee lee eee see een le eee

FACTUAL BACKGROUND Dene eeen cece nn eee ene eneeneen een eeeneseenneeeeseenseseneensons

il Food Global’s and JWN’s relationship
2. JWN manufactures the Defective Products.
3 JWN steals raw material from Food Global

STANDARD Cee enone nen aren eeeeee nese seen nese nee ee On eeeneeeeneneSOeEeeenesennseeerenneseneens

ARGUMENT ..

1 Venue is proper in Dallas County.
11. Events and omissions giving rise to Food Global’s breach of
implied bailment contract claim occurred in Dallas County
1.2. Food Global received multiple communications in Dallas
County that ultimately gave rise to its claims
1.2.1. Food Global received communications from JWN regarding the
MSA and the Defective Products in Dallas County
1.2.2. Food Global received communications from JWN regarding the
stolen raw materials in Dallas County. 10

The MSA cannot mandate venue lie in Collin County because venue-
selection clauses are unenforceable under Texas law 12

3 The Court need not transfer this action as a matter of convenience. 13

CONCLUSION... 15

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE
SUMMARY OF THE ARGUMENT

Venue in this Court is proper because a substantial part of the events and omissions giving

rise to Food Global’s claims occurred in Dallas County. Specifically, Food Global’s right of pos-
session to its raw material stemming from its implied bailment contract with JWN arose in Dallas

County and JWN subsequently breached that contract by refusing to return Food Global’s raw

material to it in Dallas County. Further, Food Global received multiple communications in Dallas

County from JWN and Windrix that gave rise to Food Global’s claims, including those concerning

the formation and breach of the Exclusive Manufacturing Supply Agreement (“MSA”) between

Food Global and JWN, and the raw material stolen by JWN and Windrix. As such, Dallas is a
proper venue under the general venue statute.

Defendants’ position Collin County is a mandatory venue for this case based on the venue-

selection clause in the MSA is misguided. Venue-selection clauses are unenforceable under Texas

law. Thus, Food Global’s choice of venue—Dallas County—must not be disturbed.

Defendants’ request to transfer this case to Collin County for convenience is equally mis-

guided. Defendants fail to establish the three prongs of § 15.002(b): (1) they do not sufficiently

demonstrate how they would encounter economic or personal hardship as a result of this case re-

maining in Dallas County; (2) they do not demonstrate how the balance of interests weigh in favor

of transfer to Collin County; and (3) they do not show how there would be an injustice on any party

as a result of the action remaining in Dallas County. Accordingly, the Court must deny the Motion

and maintain this case in Dallas County.

FACTUAL BACKGROUND

1 Food Global’s and JWN’s relationship.

Food Global is a Dallas-based company that markets and distributes dietary and nutritional

supplement products under, among other trademarks, VITAXTRONG. JWN is a Texas-based

manufacturer of food products. Windrix is the sole member of JWN.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE
In August 2017, Food Global and JWN negotiated and entered into MSA, through which

JWN agreed to manufacture dietary and nutritional supplement products for Food Global accord-

ing to the specifications outlined in the MSA (“VITAXTRONG Products”). The MSA contained

warranties ensuring JWN’s manufacture of the VITAXTRONG Products would conform with

Food Global’s specifications. Further, JWN agreed in the MSA to indemnify Food Global for

breaching its warranties and for customer complaints regarding defects in VITAXTRONG Prod-

ucts.

2 JWN manufactures the Defective Products.

In March 2018, Food Global submitted multiple orders to JWN for the manufacture of the

VITAXTRONG Products. In early 2019, Food Global began to receive complaints from its distrib-

utors and customers regarding certain lots of VITAXTRONG Products manufactured by JWN

(the “Defective Products”). The Defective Products did not conform with the MSA’s specifica-

tions and JWN’s warranties for the VITAXTRONG Products. Food Global and JWN communi-

cated regarding the Defective Products from March 2019 through July 2019, wherein JWN ulti-

mately denied responsibility for the defects. Despite JWN’s denial of responsibility, on information

and belief, JWN and Windrix were aware the products JWN manufactured were defective and

failed to disclose facts they became aware of regarding the Defective Products. Food Global had

no choice but to recall the Defective Products, and it has since lost its foothold in the global mar-

ketplace because of JWN’s defective production.

3 JWN steals raw material from Food Global.

Part of Food Global’s working relationship with JWN required it to purchase raw materials

from third-party suppliers and coordinate the delivery of the raw materials to JWN to be used for

the manufacture of the VITAXTRONG Products. Food Global would inform JWN that its raw

material was being shipped to JWN, then JWN would confirm receipt of the raw material and use

and store it as needed. In previous instances, at Food Global’s request, JWN would return Food

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE
Global’s raw materials to it by shipping them to other designated third-party warehousing or man-

ufacturing companies.

In early 2019, Food Global and JWN coordinated the transportation of Food Global’s raw

material used to manufacture VITAXTRONG Products from JWN’s facility to DC Logistics, a

third party used by Food Global for the storage of its raw material. The DC Logistics facility was

located in Dallas County. In February 2020, Windrix confirmed to Food Global that JWN would
begin to prepare the shipment of the raw material to DC Logistics. In March 2020, Windrix con-

firmed JWN held 16,519 pounds of Food Global’s raw material that required transport. Despite
Windrix’s assurances, however, JWN and Windrix never transported Food Global’s raw material

to DC Logistics in Dallas County. Food Global later confirmed JWN withheld an additional 7,230
pounds of raw material that was never used for the manufacture of one of Food Global’s products

by JWN. Thus, JWN and Windrix knowingly and intentionally stole over 23,000 pounds of raw

material from Dallas-based Food Global.

On March 20, 2020, Food Global filed the present action, wherein it maintains claims

against JWN and Windrix for breach of express warranty, breaches of contract, fraud by nondis-

closure, declaratory judgment, conversion/civil theft, breach of implied bailment contract, and vi-
olation of the Texas Theft Liability Act.! On April 17, 2020, Defendants filed their original Motion

to Transfer Venue, but on July 6, 2020, after Plaintiff filed its response brief, Defendants withdrew

their hearing on the motion. Over three months later, Defendants filed their Amended Motion,
wherein they make the same arguments as in their original motion.

ee
Before filing this suit, Food Global filed a contemporaneous action against JWN and Windrix
in Collin County with its claims for breach of express warranty, breaches of contract, fraud by
nondisclosure, and declaratory judgment (the “Collin County Action”). On June 23, 2020,
Food Global nonsuited the Collin County Action and amended its petition in this case to in-
corporate its claims from the Collin County Action.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE
STANDARD

It is well established that the plaintiff “has the first choice to fix venue in a proper county. 2

Venue may be proper in many counties under general, permissive, or mandatory venue rules.>

When, as here, the defendant challenges the plaintiff’s venue choice, the plaintiff need only pre-
sent prima facie proof venue is proper where it filed suit.* The plaintiff’s prima facie proof, which

is based on pleadings and affidavits, is not subject to rebuttal, cross-examination, impeachment, or

disproof.5 The Court must assume the pleadings and affidavits are true.° If, based on this infor-

mation, venue is proper, the trial court must maintain venue unless a mandatory venue provision

applies or the defendant presents “conclusive evidence” that “destroy[s]” the plaintiff’s prima
facie proof.” “Absent such circumstances, venue in any county other than the plaintiffs choice is

improper as a matter of law.”®

Venue in this case is governed by the general venue statute, TEX. CIV. PRAC. & REM. CODE

§ 15.002(a), which provides venue is proper in the county where “all or a substantial part of the

events or omissions giving rise to the claim occurred.”? The focus of this inquiry is whether “the

actions or omissions at issue are materially connected to the cause of action.” !° Notably, more than

one county may qualify as proper under § 15.002(a)(1) since a substantial part of the events or

omissions giving rise to the claims may occur in more than one county." Thus, if venue is proper

Velasco v. Tex. Kenworth Co., 144 S.W.3d 632, 634 (Tex. App.—Dallas 2004, no pet.) (citing
Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 261 (Tex. 1994)).
Wilson, 886 S.W.2d at 260.
TEX. R. CIV. P. 87(2)(B); Wilson, 886 S.W.2d at 260; Jaska v. Tex. Dep’t of Protective and Reg-
ulatory Servs., 106 S.W.3d 907, 910 (Tex. App.—Dallas 2003, no pet.).
Chiriboga, 96 S.W.3d at 678.
TEX. R. Civ. P. 87; KW Constr. v. Stephens & Sons Concrete Contractors, 165 S.W.3d 874, 879
(Tex. App.—Texarkana 2005, pet. denied).
KW Constr., 165 S.W.3d at 880.
Id. (citing Wilson, 886 S.W.2d at 261-62).
Tex. Civ. Prac. & Rem. Code § 15.002(a)(1).
10 Moveforfree.com v. David Hetrick, Inc., 288 S.W.3d 539, 542 (Tex. App.—Houston [14th Dist.]
2009, no pet.).
n Id.; Velasco, 144 S.W.3d at 634-35.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE
in the plaintiff’s chosen county, even if there are venues where more, or even the most, substantial

events occurred, the plaintiffs choice nonetheless controls.!”

ARGUMENT

1 Venue is proper in Dallas County.

Venue is proper in Dallas County because it is a county where a substantial part of the

events and omissions giving rise to Food Global’s claims occurred. First, Food Global’s possessory

right established by its implied bailment contract with JWN arose in Dallas County and JWN

breached the implied bailment contract in Dallas County. Second, Food Global received a number

of communications in Dallas County from JWN and Windrix concerning the raw material they

subsequently stole from Food Global. This constitutes a substantial part of the events and omis-

sions giving rise to Food Global’s claims.

1.1. Events and omissions giving rise to Food Global’s breach of implied bailment
contract claim occurred in Dallas County.

Venue is proper in Dallas County under § 15.002 because a substantial amount of events or

omissions giving rise to Food Global’s claim for breach of implied bailment contract occurred in

Dallas County. Specifically, Food Global’s right of possession over the raw materials arose in Dal-

las County, and the breach of the implied bailment contract occurred in Dallas County.

Central to any bailment contract is the bailor’s right of possession over the property subject
to the bailment.'? Subsequently, the place where that right of possession originates can be indica-

tive when determining where proper venue lies. In Smith Steel, the Waco Court of Appeals consid-

ered whether the county of suit was proper under the previous venue provision to hear a claim for

breach of a bailment contract.'4 Smith Steel, contesting venue, argued it received and refused

12 Moveforfree.com, 288 S.W.3d at 542 (citing KW Constr., 165 S.W.3d at 880).
13
Smith Steel Casting Co. v. Mosley Mach. Co., 438 S.W.2d 826, 827 (Tex. App.— Waco 1969, writ
dism’d) (“Appellee’s right was to possession. That right arose out of a bailment which the
evidence shows originated by an agreement between appellant and appellee... .”).
14
See id. (reviewing appellant’s plea of privilege, the precursor to the challenge to venue under

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE
Mosley’s demand for return of the bailment property in a separate county, and thus the separate

county was the proper venue to hear the claim.» The court, however, held it may also rely on where

Mosley’s right of possession arose.!° As explained by the Waco Court of Appeals:

[Mosley’s] right was to possession. That right arose out of a bailment which the
evidence shows originated by an agreement between appellant and appellee as to
the use of the patterns made in the county of suit . . . A part of the cause of action
was that interest of appellee in the property which gave rise to or constituted the
basis of its right to possession. That portion of the cause of action having arisen in
the county of suit, the venue fact relied on was established."”

Thus, because the bailment contract was formed in the county of suit and Mosley’s right of pos-

session related to that bailment originated in that county, venue was deemed proper.'®

Here, the bailment contract between Food Global and JWN originated by implication be-

tween the parties when Food Global sent and received communications from JWN concerning the

raw material to be used for the production of Food Global’s products.!° Based on these communi-

cations, the bailment contract, and the subsequent right of possession, arose in Dallas County.

Thus, a substantial portion of the events giving rise to Food Global’s breach of an implied bailment

contract occurred in Dallas County.?°

Another critical element of Food Global’s claim for breach of implied bailment contract

related to venue is the location of the breach itself. Typically, “every bailment contract contem-

plates the return of the property bailed . . . or its delivery to a third person with the express or

implied consent of the bailor.”?! Thus, if the bailee does not deliver the property directly to the

— ____ ee
TEX. CIv. PRAC, & REM.Cope § 15.002(a)(1)).
a See id.
16
See id.
a Ia.
18
See id.
19
See Ex. 1, Declaration of Nicholas Aguilar, at 19, J 17 (referred herein as “Aguilar Decl.”).
20 See Smith Steel, 438 S.W.2d at 827.
21 SeeD & D Assocs., Inc. v. Sierra Plastics, Inc., 570 S.W.2d 205, 206 (Tex. App.— Waco 1978, no
writ).

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE
bailor or to a third person with the bailor’s consent, a breach of the bailment contract occurs.””

Importantly, courts in Texas have deemed venue proper in a county where an omission occurs that

gives rise to the plaintiff’s claims.” Here, JWN breached the implied bailment contract between it

and Food Global by ignoring its obligation to return the raw material to Food Global via delivery to

DC Logistics.?4 Food Global designated DC Logistics—located in Dallas County—as the third

party JWN was to return Food Global’s raw material to.2> Thus, JWN’s failure to deliver the raw
material to DC Logistics constitutes an omission in Dallas County that gives rise to Food Global’s

breach of implied bailment contract claim.

Because Food Global’s right of possession to the raw material subject to the bailment agree-

ment arose in Dallas County, and because JWN’s omission of the delivery of the raw material to
DC Logistics occurred in Dallas County, there are venue facts to establish proper permissive venue

in Dallas County sufficient to mandate the denial of the Motion.

1.2. Food Global received multiple communications in Dallas County that
ultimately gave rise to its claims.

Venue is further appropriate in Dallas County because Food Global received multiple com-
munications in Dallas County from JWN and Windrix concerning the formation and breach of the

MSA, as well as the now-stolen raw material. Venue can be established in the county where a plain-

tiff receives communications relating to their claims.”° Indeed, “the receipt of telephone calls and
eee
22 See id.
23 See Moveforfree.com, 288 S.W.3d at 542-43 (finding indicative for venue purposes the fact the
omitted action would have occurred in the county chosen by plaintiff for venue); Karen Corp v.
Burlington N. & Santa Fe Ry., 107 S.W.3d 118, 127-28 (Tex. App.—Fort Worth 2003, pet. de-
nied) (finding venue proper in county where omitted actions would have taken place).
24 See Plaintiff’s Second Amended Petition, at J] 76-83 (“Second Am. Pet.”); Aguilar Decl., at
21, 4.23.
25 See Second Am. Pet., J 34; Aguilar Decl., at 20-21, 1 18-20.
26
See Tex. Specialty Trailers, Inc. v. Jackson & Simmen Drilling Co., No. 2-070228-CV, 2009 WL
2462530, at *6 (Tex. App.—Fort Worth Aug. 13, 2009, no pet.) (“Texas courts have held that
the receipt of telephone calls and letters in a particular county are facts that weigh in favor of
finding venue to be appropriate in that county.”); Moveforfree.com, 288 S.W.3d at 542-43; Sie-
mens Corp. v. Bartek, No. 03-04-00613-CV, 2006 WL 1126219, at *6-7 (Tex. App.—Austin

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE
letters in a particular county weighs in favor of finding that venue is appropriate in that county.”?”

In KW Construction, for example, the court held Lamar County was a proper venue when the plain-

tiff received two phone calls there from the defendant—one to solicit the plaintiff’s business, and

another to discuss the scope of the parties’ eventual contract.” Notably, the court in KW Con-

struction declined to transfer the action to another county even though the defendant’s perfor-

mance of the contract at issue was entirely in that county, the plaintiff traveled there to assess the
defendant’s work, and the defendant’s place of business was there.” Similarly, in Siemens, the

court held venue proper in the county where the plaintiff received emails, phone calls, and a letter

concerning the subject matter of the plaintiff’ s claims of fraud, fraudulent inducement, and breach
of contract.°°

1.2.1. Food Global received communications from JWN regarding the MSA
and the Defective Products in Dallas County.

Food Global received several communications in Dallas County from JWN regarding the

drafting and negotiations of the MSA. For instance, on August 2, 2017, Adam Marshall, counsel
for JWN, emailed Nick Aguilar, Manager of Food Global, confirming receipt of Food Global’s

concerns for the working draft of the MSA and its protections for the VITAXTRONG Product

specifications.*! Marshall then emailed Aguilar on August 4, 2017, attaching further revisions to

oe a
Apr. 28, 2006, no pet. h.); KW Const., 165 S.W.3d at 882-83.
27 Siemens Corp., 2006 WL 1126219, at *7.
28 See KW Constr., 165 S.W.3d at 882-83.
29 See id.; see also Velasco, 144 S.W.3d at 634 (“If there is any probative evidence that supports
venue in the county of suit, the trial court must deny the transfer. This is true even if the evi-
dence preponderates to the contrary.”) (internal citations omitted).
30 See Siemens Corp., 2006 WL 1126219, at *6; see also Moveforfree.com, 288 S.W.3d at 542-43
(deeming venue in Bexar County proper when plaintiff received communications in Bexar
County misrepresenting the scope and nature of defendant’s services available to the plaintiff).
31
See Aguilar Decl., at 18-19, J 6; Ex. 1-A, at 23.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE
the MSA and stating JWN’s belief the revisions “better warranty that the [VITAXTRONG] prod-

ucts will meet the agreed upon specifications and JWN will standing behind the products.”2?

Food Global also received communications in Dallas County from JWN relating to the De-

fective Products, JWN’s breach of the MSA, and the MSA’s express warranties for the manufac-

ture of Food Global’s VITAXTRONG Products. For instance, on February 21, 2019, Windrix

emailed Aguilar acknowledging Food Global’s complaint and demand for credit for the Defective
Products sold in Vietnam, Malaysia, Mexico, and Argentina.** Next, on March 4, 2019, Windrix

emailed Wai Yee “Yvonne” Choy, Purchasing and Logistics Manager for Food Global, informing

her JWN would issue credits for the Defective Products discussed in his February 21, 2019 email.*
On June 5, 2019, Layne McBeath, Director of Product Development for JWN, and Chris Gorman,

QA Process Control Manager for JWN, both emailed Aguilar to let him know JWN was investigat-

ing continued complaints from Food Global’s customers regarding the Defective Products.*> On

June 20, 2019, Gorman again emailed Aguilar to discuss JWN’s investigation and request addi-
tional information from Aguilar regarding the VITAXTRONG Product defects.*° Finally, on July
8, 2019, Gorman emailed Aguilar and denied that JWN was at fault for the VITAXTRONG Prod-

uct defects complained about by Food Global and its customers.*”

The above-described communications give rise to Food Global’s breach of express war-

ranty, breach of contract, and fraud by nondisclosure claims. First, Food Global received commu-
nications from JWN wherein the parties discussed and developed the terms of the MSA.** Food
Global also received multiple communications in Dallas County concerning JWN’s breach of the

eee ee oe
ae
See Aguilar Decl., at 19, 7 6; Ex. 1-A, at 23.
a See Aguilar Decl., at 19, 9; Ex. 1-B, at 27.
34
See Aguilar Decl., at 19, J 10; Ex. 1-B, at 27.
35
See Aguilar Decl., at 19, 4 12; Ex. 1-C at 28.
36 See Aguilar Decl., at 20, J 13; Ex. 1-C, at 29
a See Aguilar Decl., at 20, 14; Ex. 1-C, at 32
38 See KW Constr., 165 S.W.3d at 882-83.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE
MSA.» These communications directly tie at least two elements of Food Global’s breach of con-

tract claims—existence of the MSA and JWN’s breach—to Dallas County.‘ Likewise, the above-

described communications tie at least three elements of Food Global’s breach of express warranty

claim—an express affirmation of fact or promise relating to the goods, said affirmation or promise

becoming part of the bargain, and the goods’ non-conformance with the affirmation or promise—

to Dallas County.*! Finally, the above-described communications tie at least two elements of Food
Global’s fraud by nondisclosure claim—a deliberate failure to disclose material facts and an intent

for the plaintiff to act or refrain from acting based on the nondisclosure—to Dallas County.‘

Under Texas law, these communications are events sufficient to qualify as a “substantial
part” of Food Global’s claims.*

1.2.2. Food Global received communications from JWN regarding the stolen
raw materials in Dallas County.

Food Global received several emails in Dallas County from JWN and Windrix regarding

the purported transfer of Food Global’s raw material to DC Logistics. First, on February 25, 2019,
Windrix emailed Choy and Aguilar to confirm JWN would begin the process of loading Food

Global’s raw material onto trucks for transport to DC Logistics.*4 In the same email, Windrix

acknowledged JWN’s familiarity with shipping Food Global’s raw material to DC Logistics.*°

Next, on March 12, 2019, Windrix and John Carleton, JWN’s Warehouse Manager, emailed Choy

and Aguilar from Food Global and confirmed the amount of outstanding raw material in JWN’s

a See id.
40 See Siemens Corp., 2006 WL 1126219, at *6; KW Constr., 165 S.W.3d at 882-83.
4
See Tex. Specialty Trailers, 2009 WL 2462530, at *6; Siemens Corp., 2006 WL 1126219, at *6;
KW Constr., 165 S.W.3d at 882-83.
42 See Moveforfree.com, 288 S.W.3d at 542-43; Siemens Corp., 2006 WL 1126219, at *7.
43 TEX. CIV. PRAC. & REM. CODE § 15.002(a).
44 See Aguilar Decl., at 20-21, J 20; Ex. 1-D, at 34-35.
45
See Aguilar Decl., at 20-21, J 20; Ex. 1-D, at 34-35.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE 10
possession that Food Global demanded be shipped to DC Logistics.*° Both emails give rise to Food

Global’s claims because they show JWN and Windrix acknowledging Food Global’s demand for

the raw material, Food Global’s legal ownership of the raw material, and the past instances where

JWN shipped Food Global’s raw material to DC Logistics without issue—all facts giving rise to

Food Global’s conversion claim,‘’ as well as establishing the lack of consent and intent elements

of the Theft Liability Act claim.**
Choy and Aguilar also received a number of emails from JWN concerning the manufacture

of Food Global’s VX-Real Whey Mocha Cappuccino 5 Ib. product (the “Product”). From late

January 2019 through March 2019, JWN refused to indicate whether it actually manufactured the
Product as requested by Food Global. On January 31, 2019, Choy and Aguilar received an email

from Gerry Benn, COO of JWN, stating JWN would begin the requested manufacture of the Prod-

uct after it received proper labels for the Product’s containers.*? After Choy and Aguilar requested

updates on the production status of the Product, they received another email on February 15, 2019,
from Benn stating the sleeves JWN received were “bad” and had to be returned.*° Choy responded

on February 15, 2019, informing JWN it would send new sleeves by the end of the month.*! On

March 6, 2019, Choy and Aguilar received an email from Juan Cedillo from JWN stating JWN still

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46
See Aguilar Decl., at 21, J 21; Ex. 1-D, at 39.
a7 See Pierson v. GFH Fin. Servs., 829 S.W.2d 311, 314 (Tex. App.—Austin 1992, no pet.) (“An
act... is such active interference with the owner’s right of property or control as to deprive
him ofits free use and enjoyment.””) (citing Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 446
(Tex. 1971).
48 See TEX. PEN. CODE § 1.07(a)(11); Thomas v. State, 753 S.W.2d 688, 691-92 (Tex. Crim. App.
1988) (“Appropriation of property is without the owner’s effective consent it . . . it is without
his assent in fact[.]”) (internal citations omitted); TEX. PEN. CODE § 31.03(c)(1) (“[E]vidence
that the actor has previously participated in recent transactions other than, but similar to, that
which the prosecution is based is admissible for the purpose of showing knowledge or intent
and the issues of knowledge or intent are raised by the actor's plea of not guilty.”).
49 See Aguilar Decl., at 21, ] 25; Ex. 1-E, at 43.

50 See Aguilar Decl., at 21, 1 26; Ex. 1-E, at 41.
51
See Aguilar Decl., at 21, 26; Ex. 1-E, at 41.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE ll
had no update on the manufacture of the Product.*? Finally, Choy and Aguilar received an email

from Cedillo stating JWN purportedly produced the Product’s containers, but once again, there

was no indication whether the Product itself had been manufactured.* In total, these communica-

tions informed Food Global that JWN had not, and likely would not, manufacture the Product.

More importantly, the emails establish Food Global’s claims because they established JWN would

not return the raw material that would have otherwise been used for the manufacture of the Prod-
uct. For venue purposes, these emails give rise to Food Global’s conversion and Theft Liability

Act claims because they show JWN’s willingness to wrongfully withhold Food Global’s property.
Because Food Global’s right of possession stemming from the implied bailment agreement

originated in Dallas County, JWN stole the raw material it was otherwise obligated to return to

Food Global in Dallas County, and because Food Global received multiple communications from

JWN and Windrix in Dallas County evidencing their intent to steal the raw material, a substantial

portion of the events and omissions giving rise to Food Global’s claims occurred in Dallas County.
Thus, venue is proper in Dallas County, and the Court must deny the Motion.

2 The MSA cannot mandate venue lie in Collin County because venue-selection
clauses are unenforceable under Texas law.

The MSA cannot dictate venue for this action lie in Collin County, as venue-selection

clauses like the one in the MSA are unenforceable under Texas law. The distinction between fo-

rum-selection clauses and venue-selection clauses is critical. Forum-selection clauses are generally

enforceable, but “venue selection cannot be the subject of private contract unless otherwise pro-

vided by statute.”°4 While the MSA can certainly specify that all related disputes be heard in a
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52
See AguilarDecl, at 21, J 27; Ex. LE, at 4.
53
See Aguilar Decl., at 21, ] 28; Ex. 1-E, at 40.
54 Liu v. Cici Enters., LP, No. 14-05-00827-CV, 2007 WL 43816, at *2 (Tex. App.—Houston
[14th Dist.] Jan. 9, 2007, no pet. h.); see In re New Braunfels Am. Motorcycles, Ltd., No. 03-20-
00285, 2020 WL 2989135, at *1 (Tex. App.—Austin June 2, 2020, no pet. h.); Jn re Grp. 1
Realty, Inc., 441 S.W.3d 469, 472 (Tex. App.—El Paso 2014, orig. proceeding); Shamoun &
Norman, LLP v. Yarto Intern. Group, LP, 398 S.W.3d 272, 293 (Tex. App.—Corpus Christi-
Edinburg 2012, review dism’d).

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE 12
Texas state court, it cannot specify the specific county or court within that state.5> Indeed, “any

agreement or contract whereby the parties try to extend or restrict venue is void against public

policy.”°° Here, the MSA cannot establish Collin County as the sole venue for Food Global to

present any claims against JWN potentially related to the MSA’s terms. Thus, Defendants still

cannot satisfy their burden to establish Collin County as mandatory venue. At best, Defendants

can only establish permissive venue in Collin County for claims against JWN (not Windrix, as anon-

party to the MSA), which is not enough to warrant transfer if Food Global’s choice of forum is also

proper.*” Accordingly, the Court must deny the Motion and keep the action in Dallas County.

3 The Court need not transfer this action as a matter of convenience.

The Court should deny Defendants’ request for transfer of venue to Collin County based

convenience and the interests of justice. Defendants fail to justify transfer on these grounds be-

cause they fail to establish all three of the following:

(1) maintenance of the action in the county of suit would work an injustice to the
movant considering the movant’s economic and personal hardship;

(2) the balance of interests of all the parties predominates in favor of the action
being brought in the other county; and

(3) the transfer of the action would not work an injustice to any other party.°

First, Defendants overstate the economic and personal hardship they will face if the case
remains in Dallas County.*° As Defendants point out, they operate primarily out of Collin County,

55
See Liu, 2007 WL 43816, at *2 (“Forum pertains to the jurisdiction, generally a nation or State,
where suit may be brought . . . In contrast, venue concerns the geographic location within the
forum where the case may be tried.”) (internal citations omitted).
56 See Bristol-Myers Squibb Co. v. Goldston, 957 S.W.2d 671, 674 (Tex. App.—Fort Worth 1997,
pet. dism’d by agr.) (citing Fidelity Union Life Ins. Co. v. Evans, 477 S.W.2d 535, 537 (Tex.
1972).
57 See Moveforfree.com, 288 S.W.3d at 542.
58 See TEX. CIV. PRAC. & REM. CODE § 15.002(b) (emphasis added).
59 See Am. Mot. at 9-10.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE 13
which is in very close proximity to Dallas County. In fact, the distance from JWN’s facility to the

Dallas County courthouse is only 14 miles further than that between JWN’s facility and the Collin

County courthouse. Likewise, if third-party witnesses are required to appear for depositions or trial

in this action, their travel distance to Dallas County would not be significantly different from that

to Collin County. Notably, Defendants present no evidence related to third-party witnesses.

Next, Defendants point out the documents pertinent to the lawsuit are located in Collin
County,“ but the availability of electronic transfer of documents makes the physical location of

documents a non-issue for venue considerations.*! Clearly, the physical locations of the Dallas

County and Collin County courts are a non-factor when evaluating convenience of venue.

Lastly, Defendants contend the MSA and its venue provision indicates a lack of hardship
and injustice for Food Global to seek legal relief in Collin County.©? Food Global, however, chose

to file in the county where it resides and where a substantial part of the events and omissions giving

rise to its claims occurred. Texas courts have emphasized the protection of the plaintiffs choice

of venue when legitimate ties exist between the claims and said venue.® The transfer this action to

Collin County where Defendants cannot identify a need for such transfer would work an injustice

solely to Food Global and its choice of venue.

Defendants failed to establish all three prongs required under § 15.002(b) to justify transfer

to Collin County on convenience grounds. Thus, Food Global’s choice of venue must not be dis-

turbed.“! The Court should deny Defendants’ request for a transfer of venue for convenience.

60
See id. a 8.
61 See BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., No. 3-08-Cv-1779-L, 2009 WL 918459 at *5
(N.D. Tex. Apr. 3, 2009); Interactive Music Tech., LLC v. Roland Corp. U.S., No. 6:07-cv-282,
2008 WL 245142, at *10 (E.D. Tex. Jan. 29, 2008).
62
See Am. Mot. at 9-10.
63 Perryman v. Spartan Tex. Six Capital Partners, 546 S.W.3d 110, 130 (Tex. 2018); KW Constr.,
165 S.W.3d at 879; Velasco, 144 S.W.3d at 634.
64
Perryman, 546 S.W.3d at 130; KW Constr., 165 S.W.3d at 879.

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE 14
CONCLUSION

For the foregoing reasons, the Court should deny Defendants’ Amended Motion to Trans-

fer Venue and maintain this action in Dallas County.

December 8, 2020 Respectfully submitted,

GRIFFITH BARBEE PLLC

/s/ Casey Griffith

Casey Griffith
Texas Bar No. 24036687
Casey.Griffith @griffithbarbee.com

Michael Barbee
Texas Bar No. 24082656
Michael.Barbee@griffithbarbee.com

Dallas Flick
Texas Bar No. 24104675
Dallas.Flick@griffithbarbee.com

One Arts Plaza
1722 Routh St., Ste. 710
Dallas, Texas 75201
(214) 446-6020 | main
(214) 446-6021 | fax
Counsel for Plaintiff

Certificate of Service

I certify that on December 8, 2020 a copy of this document was served on all counsel of

record via the Court’s electronic document delivery system and pursuant to the Rules.

/s/ Casey Griffith

Casey Griffith

PLAINTIFF’S RESPONSE TO DEFENDANTS’ AMENDED MOTION TO TRANSFER VENUE 15
Cause No. DC-20-04765

Foop GLoBAL INNOVATION GP LLC, IN THE DistTRIcT CouRT

Plaintiff

Vv.

160TH JUDICIAL DISTRICT
JW NutRITIONAL LLC, AND JESSE
WINDRIX

Defendants. |
ee eee ee ee eee DaLias County, TEXAS

Appendix in Support of Plaintiff's
Response to Defendants’ Amended Motion to Transfer Venue

Exhibit Document Appendix Pages

Declaration of Nicholas Aguilar 18-22

Emails exchanged between
1-A
Nicholas Aguilar and Adam Marshall 23-25

Emails exchanged between Nicholas Aguilar,
1-B 26-27
Wai Yee Choy, and Jesse Windrix
Emails exchanged between Nicholas Aguilar,
1-C
Layne McBeath, Adam Gorman, 28-32
and Jesse Windrix
Emails exchanged between
1-D 33-39
Wai Yee Choy, Nicholas Aguilar,
Jesse Windrix, and John Carleton
Emails exchanged between Wai Yee Choy,
1-E
Nicholas Aguilar, Gerry Benn, and Juan Cedillo
40-46

16
Exhibit 1

17
Cause No. DC-20-04765

Foop GLoBAL INNOVATION GP LLC, IN THE DISTRICT COURT

Plaintiff

Vv.

160TH JUDICIAL DISTRICT
JW NuTRITIONAL LLC AND JESSE
WINDRIX,

Defendants
DALLAS COUNTY, TEXAS

Declaration of Nicholas Aguilar

I, Nicholas Aguilar, state the following:

i My name is Nicholas Aguilar. My date of birth is June 11, 1982, and my address is

112 Shadow Creek Lane, Hickory Creek, Texas 75065, USA. I declare under penalty of perjury
that the following is true and correct.

2. Iam a Member of Food Global Innovation GP LLC (“Food Global”), which is the

Plaintiff in the above-captioned lawsuit. I am fully qualified to make this declaration and have

personal knowledge of the facts stated herein.

3, Food Global is a Texas limited liability company located at 14281 Welch Road,
Farmers Branch, Texas 75244.

4. Food Global markets and distributes dietary and nutritional supplement products
under, among other trademarks, VITAXTRONG.

5 In August 2017, Food Global and JWN entered into the MSA, through which JWN

agreed to manufacture Food Global’s dietary and nutritional supplement products according to

the specifications outlined in the MSA (the “VITAXTRONG Products”).

6 Icommunicated directly with JWN and its counsel regarding the negotiation of the
MSA and its terms. For instance, on August 2, 2017, Adam Marshall, counsel for JWN, emailed

me to confirm receipt of Food Global’s concerns for the working draft of the MSA and its

DECLARATION OF NICHOLAS AGUILAR

18
protections for the VITAXTRONG Product specifications. Marshall emailed me again on August

4, 2017, attaching further revisions to the MSA and stating JWN’s belief the revisions provide

better warranties for JWN’s production of the VITAXTRONG Products according to Food

Global’s specifications.

a Attached as Exhibit A to this declaration is a true and correct copy of the email

exchange between Marshall and I, including the August 2, 2017 and August 4, 2017 emails from

Marshall.

8. In March 2018, Food Global submitted multiple orders to JWN for the manufacture

of the VITAXTRONG Products. In early 2019, Food Global began receiving complaints from its

distributors and customers regarding defects in certain lots of its VITAXTRONG Products

manufactured by JWN (the “Defective Products”).

9. Food Global informed JWN of the Defective Products in February 2019, and the
parties communicated regarding the defects from February 2019 through July 2019. For instance,

on February 21, 2019, Jesse Windrix, president and owner of JWN, emailed me acknowledging

Food Global’s complaint and demand for credit for the defective VITAXTRONG Products sold
in Vietnam, Malaysia, Mexico, and Argentina.

10. Next, on March 4, 2019, Windrix emailed Wai Yee “Yvonne” Choy, Purchasing

and Logistics Manager for Food Global, and I stating JWN would issue credits for the Defective
Products discussed in his February 21, 2019 email.

i. Attached as Exhibit B to this declaration is a true and correct copy of the email
exchange between Windrix, Choy, and I, including the February 21, 2019 and March 4, 2019 emails

from Windrix.

12. On June 5, 2019, Layne McBeath, Director of Product for WN, and Chris Gorman,

QA Process Control Manager for JWN, each sent emails to Windrix and I stating JWN was

investigating continued complaints from Food Global’s customers regarding the Defective
Products.

DECLARATION OF NICHOLAS AGUILAR

19
13. On June 20, 2019, Gorman emailed McBeath, Windrix, and I discussing JWN’s

continued investigation and requesting samples from and additional information regarding the

Defective Products.

14. Finally, on July 8, 2019, Gorman emailed McBeath, Windrix, and I wherein he

denied JWN was at fault for the Defective Products and instead contended the issues stemmed

from improper storage of the Defective Products.

1. Attached as Exhibit C to this declaration is a true and correct copy of the email

exchange between Gorman, McBeath, Windrix, and I, including the June 5, 2019 email from

McBeath, as well as the June 5, 2019, June 20, 2019, and July 8, 2019 emails from Gorman.

16. As part of Food Global’s working relationship with JWN, Food Global would

purchase raw material from third-party suppliers and have the raw material delivered to JWN for

storage and use in the manufacture of Food Global’s products.
7s Specifically, either Choy or I would inform JWN that Food Global would have its

raw material shipped to JWN’s facilities to be used for the manufacture of Food Global’s products.

JWN would then confirm its receipt of the raw material, store the raw material in its facility, and

use the raw material as needed to manufacture Food Global’s products.
18. In February 2019, Food Global coordinated with JWN and Windrix to transport all

of Food Global’s raw material stored at JWN’s facility to DC Logistics, a third-party warehousing

and distribution service company. DC Logistics was located at 510 Peachtree Road, Suite 100,

Mesquite, Texas 75149, located within Dallas County, Texas. Food Global sought the transfer of
its raw material so it could be used for the manufacture of its products by other third-party
manufacturers.

19. At Food Global’s request, JWN had previously shipped Food Global’s raw material

to other third-party storage and manufacturing facilities without issue, including shipments to DC

Logistics within Dallas County.
20. On February 25, 2019, Windrix sent an email to Choy and I to confirm JWN was

beginning the process of loading Food Global’s raw material onto trucks for transport to DC

DECLARATION OF NICHOLAS AGUILAR

20
Logistics. In the same email, Windrix acknowledged JWN’s familiarity with shipping Food

Global’s raw material to DC Logistics.

21. On March 12, 2019, John Carleton, JWN’s Warehouse Manager, sent an email to
Choy and I confirming that JWN had 16,519 pounds of Food Global’s raw material in its warehouse

that required shipment to DC Logistics. Jesse Windrix was copied on the March 12, 2019 email.

22. Attached as Exhibit D to this declaration is a true and correct copy of the email

exchange between Choy, Carleton, Windrix, and I including the February 25, 2019 email from

Windrix and the March 12, 2019 email from Carleton.

23. JWN did not deliver the shipment of the 16,519 pounds of its raw material at the

DC Logistics location in Dallas County, Texas.

24. InJanuary 2019, Food Global requested from JWN an update on the manufacturing

status of one of Food Global’s products, the VX-Real Whey Mocha Cappuccino 5 Ib product (the

“Product”). Food Global provided JWN 7,230 pounds of raw material for the manufacture of

1,500 units of the Product.

25. On January 31, 2019, Choy and I received an email from Gerry Benn, COO of JWN,

stating JWN would begin the manufacture of the Product after it received the proper labels for the

Product’s containers.

26. On February 15, 2019, Choy and I received an email from Benn stating the sleeves

JWN received for the Product were “bad” and had to be sent back.

27. On March 6, 2019, Choy and I received an email from Juan Cedillo, Operations

Manager at JWN, stating JWN had no update for Food Global regarding the status of the

manufacture of the Product.

28. Cedillo sent a follow-up email to Choy and I st

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