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IN THE SUPERIOR COURT OF GWINNETT COUNTY
STATE OF GEORGIA
OMNIMAX INTERNATIONAL, LLC,
Plaintiff, Civil Action No.: 23-A-05450-11
v.
AA METALS, INC.,
Defendant.
________________________________/
DEFENDANT’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO DISMISS AND INCORPORATED MEMORANDUM OF LAW
Defendant, AA METALS, INC. (“AA Metals”), a Florida corporation, by counsel, files
this Reply Brief in support of its Motion to Dismiss and to address certain arguments made by
Plaintiff, OMNIMAX INTERNATIONAL, LLC (“OmniMax”), in its Brief in Opposition to the
Motion to Dismiss (the “Brief in Opposition”).
I. INTRODUCTION.
OmniMax and AA Metals agree that this case centers on an agreement under which AA
Metals agreed to supply millions of pounds of aluminum alloy to OmniMax in exchange for
millions of dollars. They also agree that OmniMax’s principal place of business in in Peachtree
Corners, Georgia (Compl., ¶ 8), and AA Metal’s principal place of business is in Orlando, Florida.
(Compl., ¶ 3). However, the parties appear to disagree on most everything else.
In particular, OmniMax believes post-dispute communications between certain
representatives of OmniMax and AA Metals provide support for this Court exercising personal
jurisdiction over AA Metals in this case. Apparently, OmniMax believes that the post-dispute
communications are part of the consummation of the agreement and transaction between
OmniMax and AA Metals. With respect to forum non conveniens, downplays the factors in favor
of dismissal of the Complaint.
Because the actual facts do not support this Court exercising personal jurisdiction over AA
Metals in this case, the Complaint should be dismissed. Alternatively, this Court should dismiss
the Complaint on forum non conveniens grounds.
II. THE AFFIDAVITS FILED BY OMNIMAX DO NOT SUPPORT THE
EXERCISE OF PERSONAL JURISDICTION OVER AA METALS.
OmniMax filed four Affidavits with Exhibits with its Brief in Opposition. OmniMax claims
the Affidavits and the Exhibits “establish[] jurisdiction” over AA Metals [Brief in Opposition, p.
2]. But, that is not true.
The first Affidavit filed by OmniMax is of Mr. Dieter J. Juedes, one of OmniMax’s
attorneys in this case. Attached to Mr. Juedes’ Affidavit is a copy of OmniMax’s Motion to
Dismiss or Stay, which was filed in the lawsuit in Orange County, Florida. [Juedes Aff., Ex. A].
Also attached to Mr. Juedes’ Affidavit are copies of two pages from the AA Metals website.
[Juedes Aff., Ex. B]. Nothing in Mr. Juedes’ Affidavit speaks to the issue of personal jurisdiction,
and nothing in the Exhibits thereto speaks to the issue of personal jurisdiction.
The second Affidavit filed by OmniMax is of Mr. Christopher Berg, who is “the Vice
President and General Counsel at OmniMax International, LLC.” [Berg Aff., ¶ 4]. Mr. Berg’s
Affidavit does not establish or otherwise lend support to this Court’s exercise of personal
jurisdiction over AA Metals either. Mr. Berg Affidavit only addresses his involvement with AA
Metals on behalf on OmniMax after the dispute between the parties arose.1
Specifically, Mr. Berg states that in the fall of 2022 and continuing through June 2023, he
1
The dispute between the parties arose in 2021/2022, as OmniMax correctly asserts in its
Complaint. [See e.g., Complaint, ¶¶ 41-42, 47-48, 51].
2
had communications with Mr. Don Lawson, AA Metals’ Chief Financial Officer regarding the
aluminum at issue. [Berg Aff., ¶ 7]. Mr. Berg states that he also had communications with Mr.
Jack Cheng, AA Metals’ Chief Executive Officer, and Mr. Ryan Mitchell, an attorney for AA
Metals, regarding the aluminum alloy during that same time frame. [Berg Aff., ¶¶ 8-11]. Mr. Berg
further discusses in his Affidavit an Interim Resolution Agreement entered into by AA Metals and
OmniMax dated April 12, 2023, concerning an interim resolution of the parties’ dispute. [Berg
Aff., ¶ 12; Ex. E].
Notably, Mr. Berg’s is silent as to his involvement in the discussions and negotiations with
AA Metals leading to the agreement and the consummation of the transaction between AA Metals
and OmniMax. This is because Mr. Berg was not involved in any such discussions or negotiations
with AA Metals, as explained in more detail in Section III below. As such, Mr. Berg’s Affidavit
does not evidence or otherwise lend support for this Court’s exercise of personal jurisdiction over
AA Metals.
The third Affidavit filed by OmniMax is of Mr. John Wayne, the Chief Executive Officer
of OmniMax. [Wayne Aff., ¶ 4]. Mr. Wayne states that he met with Mr. Jack Cheng at OmniMax’s
headquarters in Georgia. [Wayne Aff., ¶ 4]. The meeting occurred on December 21, 2022 [Wayne
Aff., ¶ 7], which was after the dispute between OmniMax and AA Metals arose. Mr. Wayne
discusses emails he received from Mr. Cheng of AA Metals. But, again, these emails (sent between
December 30, 2022, and February 1, 2023), all occurred after the dispute arose.
As with Mr. Berg’s Affidavit Mr. Wayne’s Affidavit is silent as to his involvement in the
discussions and negotiations with AA Metals leading to the agreement and the consummation of
the transaction between AA Metals and OmniMax. As such, Mr. Wayne’s Affidavit does not
evidence or otherwise lend support for this Court’s exercise of personal jurisdiction over AA
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Metals.
The fourth Affidavit filed by OmniMax is of Tobin Chapman, who is the Director of
Sourcing for aluminum alloy for OmniMax. [Chapman Aff., ¶ 4]. In his Affidavit, Mr. Chapman
claims to have had over 100 calls with Robert Rogers, AA Metals’ Sales Manager, since May
2021. [Chapman Aff., ¶ 8]. He also states that he received a total of three emails from AA Metals,
two from Mr. Rogers and one from Mr. Lawson, which are attached to his Affidavit. [Chapman
Aff., ¶ 9; Ex. A and Ex. B]. A full explanation of these emails is set forth in Section III below.
Mr. Chapman’s Affidavit is somewhat misleading. First, a review of the emails attached to
his Affidavit evidences that others were involved in the email string, and certain of those
individuals were not in Georgia. Second, Mr. Chapman states in his Affidavit that he participated
in one video call on November 3, 2022, with Mr. Robert Rogers and Mr. Don Lawson from AA
Metals. However, the video call related to the dispute between the parties, as Exhibit B to Mr.
Chapman’s Affidavit evidences.
Third, Mr. Chapman states that “OmniMax issued purchase orders to AA Metals for
approximately 30 million pound of aluminum, including 4017 aluminum and 3105 aluminum.
OmniMax’s procurement personnel are located in Georgia.” [Chapman Aff., ¶ 11 (emphasis
added). However, missing from Mr. Chapman’s Affidavit is any statement by him concerning
where the OmniMax purchase orders were issued from. In fact, the purchase orders were issued
from the Specialty Division of OmniMax in Indiana and the Consumer Division of OmniMax in
Pennsylvania, as is explained below.
Mr. Chapman’s concludes his Affidavit by stating that “[a]pproximately 33,855 pounds of
aluminum supplied by AA Metals was shipped to Indiana, then transported to OmniMax’s plant
in Duluth, Georgia, . . . .” [Chapman Aff., ¶ 13]. However, Mr. Chapman leaves out of his Affidavit
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that AA Metals did not transport, ship or otherwise move the aluminum from Indiana to Georgia,
as OmniMax appears to imply in its Brief in Opposition. [Brief in Opposition, p. 3]. Like the other
Affidavits filed by OmniMax, Mr. Chapman’s Affidavit does not evidence or lend support to this
Court’s exercise of personal jurisdiction over AA Metals.
III. THE AFFIDAVITS FILED BY AA METALS SHOW THAT PERSONAL
JURISDICTION DOES NOT EXIST OVER AA METALS IN THIS ACTION.
With its Motion to Dismiss, AA Metals filed the Affidavit of Mr. Don Lawson, the Chief
Financial Officer of AA Metals.2 With this Reply Brief, AA Metals files an Affidavit of Mr. Robert
Rogers, the Sales Director of AA Metals, as further support for AA Metals’ Motion to Dismiss
and to respond to the incomplete averments of OmniMax’s affiants. Mr. Rogers’ Affidavit is
attached hereto as Exhibit “1.”
Mr. Rogers “was personally involved in the discussions and negotiations with OmniMax
leading up to OmniMax’s Consumer Division and OmniMax’s Specialty Division ordering from
AA Metals the aluminum alloy which is the subject of this action.” [Rogers Aff., ¶ 3]. As Mr.
Rogers unequivocally states:
4. All of the aluminum alloy which is the subject of this action was
ordered by OmniMax’s Consumer Division in Pennsylvania through purchase
orders from Pennsylvania, and OmniMax’s Specialty Division in Indiana through
purchase orders from Indiana. No purchase orders for the subject aluminum alloy
were submitted by OmniMax to AA Metals from Georgia.
[Rogers Aff., ¶ 4]. As for delivery of the subject aluminum alloy, Mr. Rogers is also clear and
unequivocal. He states:
5. None of the subject aluminum alloy was to be delivered by AA
Metals to the state of Georgia. Rather, the aluminum alloy was ultimately to be
delivered to OmniMax’s Consumer Division in Pennsylvania (some of which
2
AA Metals will not repeat the contents of Mr. Lawson’s Affidavit here, but continues to
rely on Mr. Lawson’s Affidavit in support of its Motion to Dismiss and it arguments in this Reply
Brief.
5
through a third party, Vorteq, in Pennsylvania) and OmniMax’s Specialty Division
in Indiana (through a third party, Precoat Metals, in Indiana).
[Rogers Aff., ¶ 4].
In his Affidavit, Mr. Rogers then addresses all of the email strings attached as Exhibits to
the Affidavits of Mr. Berg, Mr. Wayne and Mr. Chapman (and his own Affidavit). Mr. Rogers
explains the involvement (or lack of involvement) of the OmniMax individuals shown in the email
strings.
Mr. Rogers explains that Ms. Susan Coble “works at OmniMax’s Consumer Division in
Lancaster, Pennsylvania,” and that “[s]he was involved with [him] in the discussions leading up
to OmniMax’s Consumer Division ordering aluminum alloy for OmniMax’s Consumer Division.
Ms. Coble entered the initial purchase orders and approved the trial orders of the “4017” aluminum
alloy.” [Rogers Aff., ¶ 8 (emphasis added].
As for Mr. Berg, Mr. Rogers explains that “Mr. Berg was not involved in any discussions
or negotiations with AA Metals leading up to OmniMax ordering the subject aluminum alloy from
AA Metals. Mr. Berg only became involved on behalf of OmniMax after a dispute arose between
AA Metals and OmniMax.” [Rogers Aff., ¶ 11]. Mr. Rogers further states that soon after the
November 2022 email string took place:
AA Metals, by counsel, made written demand on OmniMax, dated
November 16, 2022, for payment of $5,177,316.70 related to AA Metals’ past due
invoices. The written demand was sent to OmniMax in care of Mr. Berg. A copy
of the demand letter is attached hereto as Exhibit C. As stated in the demand letter,
if payment was not made by OmniMax by November 30, 2022, AA Metals was
prepared to file a lawsuit against OmniMax.
[Rogers Aff., ¶ 12].
After the demand letter, Mr. Wayne of OmniMax became involved with Mr. Cheng of AA
Metals [Rogers Aff., ¶ 13 - 14], and then AA Metals and OmniMax entered into the Interim
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Resolution Agreement (which is attached to Mr. Berg’s Affidavit). [Rogers Aff., ¶ 15]. Finally, as
Mr. Rogers explains, Mr. Berg then sent an email “on June 21, 2023, unilaterally voiding and
cancelling the Interim Resolution Agreement.” [Id., Ex. F]. Two (2) days later, OmniMax raced
to the courthouse and filed the instant action against AA Metals. [Id.]
IV. ARGUMENT.
A. AA Metals Is Not Subject to Personal Jurisdiction.
Here, it is undisputed that AA Metals is a nonresident of Georgia. As a result, personal
jurisdiction must be established pursuant to Georgia’s Long Arm Statute, O.C.G.A. §9-10-91. In
this regard,
A Georgia court may exercise personal jurisdiction over a nonresident defendant
where two requirements are met. First, the defendant must have committed some
act or engaged in some activity set forth in Georgia’s Long-Arm Statute, OCGA §
9–10–91. Second, the exercise of jurisdiction over a particular defendant pursuant
to the Long Arm Statute must comport with the requirements of due process.
Lima Delta Co. v. Global Aerospace, Inc., 325 Ga. App. 76, 752 S.E. 2d 135, 138-139 (Ga. Ct.
App. 2013), citing Hyperdynamics Corp. v. Southridge Capital Mgmt., 305 Ga. App. 283, 293 699
S.E. 2d 456 (Ga. 2010). See also Cooper Tire & Rubber Company v. McCall, 312 Ga. 422, 863
S.E. 2d 81 (2021) (explaining personal jurisdiction).
OmniMax claims that this Court has personal jurisdiction over AA Metals because AA
Metals transacted business with OmniMax. [Brief in Opposition, p. 5]. To determine whether a
defendant has transacted business in Georgia pursuant to O.C.G.A. § 9-10-91(1), the Georgia
courts have developed a three-part test:
Jurisdiction exists on the basis of transacting business in this state (1) if the
nonresident defendant has purposefully done some act or consummated some
transaction in this state, (2) if the cause of action arises from or is connected with
such act or transaction, and (3) if the exercise of jurisdiction by the courts of this
state does not offend traditional notions of fairness and substantial justice.
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Lima Delta Co., 325 Ga. App. at 79-80, 752 S.E. 2d at 139. “The second part [of the test] examines
whether the cause of action ‘rises from or is connected with [some transaction in Georgia],’ . . . .”
Rothchild & Co. Continuation Holdings A.G. v. Sklrov, 440 440 F.Supp.3d 1385 (N.D. Ga. 2020)
(citations omitted). OmniMax cannot establish the second part of the three-part test. In fact,
OmniMax glossed over the second-part of the test.
OmniMax’s Complaint is grounded in the parties’ contractual relationship, by which AA
Metals sold and delivered millions of pounds of aluminum alloy coils to OmniMax’s Specialty
Division, which is located in Indiana, and OmniMax’s Consumer Division, which is located in
Pennsylvania. The aluminum alloy sold to it by AA Metals was delivered to facilities located in
the state of Indiana where OmniMax’s Specialty Division is located and Pennsylvania where
OmniMax’s Consumer Division is located. [Lawson Aff., ¶¶ 12 & 13; Rogers Aff., ¶ 5]. No
aluminum was to be delivered by AA Metals in the state of Georgia. [Rogers Aff., ¶ 5]. In fact,
OmniMax’s own Complaint does not allege that aluminum alloy was to be delivered by AA Metals
into the state of Georgia. And, none of OmniMax’s affiants make such a claim.
Further, the aluminum alloy at issue was not ordered by OmniMax from Georgia and so,
no agreement was reached in Georgia and the transaction was not consummated in Georgia.
Rather, the Purchase Orders were issued from the Specialty Division in Indiana and the Consumer
Division in Pennsylvania. [Rogers Aff. ¶ 4]. None of the OmniMax affiants dispute this fact. The
Purchase Orders were obviously accepted by AA Metals in Florida. As for payment for the
aluminum alloy purchased by OmniMax, it is undisputed that payment under the agreement and
the transaction was and is indisputably due to AA Metals at AA Metal’s offices in Orlando, Florida.
[Lawson Aff., ¶ 18].
OmniMax’s reliance on communications and a meeting that indisputably occurred after the
8
dispute between the parties cannot support the exercise of personal jurisdiction over AA Metals.
Those communications were not part of the consummation of the transaction between the parties,
but instead related to efforts to solve the dispute between the parties after the transaction had been
consummated.
OmniMax also claims that AA Metals is subject to personal jurisdiction in Georgia under
O.C.G.A. Section 9-10-91(2) and (3) because AA Metals made false claims to OmniMax. [Brief
in Opposition, p. 11]. The only tort claim pled by OmniMax is its negligent misrepresentation
claim, which is nothing more than its contract, warranty, declaratory judgment, and unjust
enrichment claims dressed-up as a tort claim.
The problem with OmniMax’s argument is that there exists no showing that the alleged
false claims occurred in Georgia or that OmniMax was damaged in Georgia. Again, the subject
aluminum alloy was not ordered from Georgia and was never to be delivered to Georgia.
Further, in its own Complaint, OmniMax refers to the “4017” aluminum alloy OmniMax
“was testing.” [See e.g., Complaint, ¶¶ 103 and 105]. Yet, it is undisputed that the “4017”
aluminum alloy OmniMax was “testing” was the subject of trial orders delivered by AA Metals to
OmniMax’s Consumer Division in Lancaster, Pennsylvania for testing and OmniMax’s approval.
[Rogers Aff., ¶ 7]. While OmniMax asserts that its “damage” was sustained “at its principal place
of business in Georgia” [see Brief in Opposition], there exists no support that assertion.
In short, OmniMax’s causes of action do not arise from or are connected with the
consummation of a transaction in Georgia or an alleged tort in Georgia. As such, this Court lacks
personal jurisdiction over AA Metals in this case.3
3
Because the requirements of Georgia’s Long-Arm statute are not satisfied, it is unnecessary
to determine whether the exercise of jurisdiction comports with the requirement of due process.
9
B. The Complaint Should Be Dismissed On Forum Non Conveniens Grounds.
As AA Metals explained in its Motion to Dismiss, a court should dismiss an action if “in
the interests of justice and for the convenience of the parties and witnesses a claim or action would
be more properly heard in a forum outside of this state.” O.C.G.A. § 9-10-31.1(a). AA Metals and
OmniMax both agree that when considering a motion to dismiss on forum non convenience
grounds, the court is to consider the following factors:
(1) Relative ease of access to sources of proof; (2) Availability and cost of
compulsory process for attendance of unwilling witnesses; (3) Possibility of
viewing of the premises . . .; (4) Unnecessary expense or trouble to defendant not
necessary to OmniMax’s own right to pursue his or her remedy; (5) Administrative
difficulties for the forum courts; (6) Existence of local interests in deciding the case
locally; and (7) The traditional deference given to a OmniMax’s choice of forum.
O.C.G.A. § 9-10-31.1(a) (punctuation omitted).
The application of the above factors to the peculiar circumstances of this action require
dismissal of the Complaint in favor of the court in Orange County, Florida. AA Metals addresses
a couple of the factors below.
1. Unnecessary Expense/Trouble To Defendant Not Necessary To
OmniMax’s Own Right To Pursue Its Remedy.
With regard to the factor concerning unnecessary expense or trouble to the AA Metals not
necessary to OmniMax’s own right to pursue its remedy, this factor slightly weighs in favor of
dismissal of the Complaint. Contrary to OmniMax’s argument, litigation for AA Metals in Georgia
will indeed be more expensive for AA Metals than litigating OmniMax’s claims in the Florida
Lawsuit (described in the Motion to Dismiss) along with AA Metals’ claims. AA Metals is located
in Florida, not Georgia. Moreover, OmniMax is authorized to conduct business in Florida and does
But, even if the Court would get to this issue, jurisdiction over AA Metals would not comport with
due process as AA Metals has not done some act in Georgia.
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business in Florida. [Lawson Affidavit, ¶ 26]. It therefore has the ability to litigate its claims in
the Florida court, and it certainly knew it could be sued in the state of Florida given that it
voluntarily registered to do business in Florida.
2. Administrative Difficulties For The Forum Courts.
As for administrative difficulties, this factor also weighs in favor of dismissal. First, the
governing law is Florida law, despite OmniMax’s argument to the contrary. OmniMax bases its
argument that Georgia law applies on the Terms and Conditions on OmniMax’s Purchase Orders,
which OmniMax claims (incorrectly) control the parties’ agreement and transaction. [Brief in
Opposition, p. 16]. OmniMax asserts that “OmniMax’s Purchase Orders state that the parties’
agreement is governed shall be governed by the laws of the state where the Purchase Order was
originally sent from, which is Georgia.” [Brief in Opposition, p. 16 (emphasis added)]. OmniMax
cites to paragraph 11 of the Affidavit on Mr. Chapman as support for this argument. However, Mr.
Chapman’s Affidavit does not provide any such support. Mr. Chapman simply states that
“”OmniMax’s procurement personnel are located in Georgia.” [Chapman Aff., ¶ 11].
Nevertheless, all of the OmniMax Purchase Orders were “sent from” either Pennsylvania, where
OmniMax’s Consumer Division is located, or Indiana, where OmniMax’s Specialty Division is
located, not Georgia. [Rogers Aff., ¶ 4]. In no circumstance will Georgia law apply to the claims.
Second, OmniMax suggests that this case is effectively a contract dispute, and that “[t]his
Court “can adeptly apply contract law of either Georgia or Florida to this case.” [Brief in
Opposition, p. 16]. But, that is not what OmniMax asserts in its Complaint. OmniMax asserts not
only a claim for breach of contract, but also claims for breach of express warranty, breach of
implied warranty of merchantability, breach of implied warranty of fitness, negligent
misrepresentation, two claims for declaratory judgment, and unjust enrichment. So, this case is not
11
a simple contract case. It involves contract-related claims and tort claims (to which the separate
and independent tort doctrine will likely apply), as well as claims for declaratory judgment.
Georgia law and Florida law may differ with respect to how these claims should be addressed.
Because Florida law applies, a Florida court is better able to apply Florida law to the claims of the
parties.
3. Existence Of Local Interests In Deciding The Case Locally.
OmniMax argues that “Georgia has an interest in adjudicating this dispute because it
involves a significant harm suffered by OmniMax, a Georgia business. [Brief in Opposition, p.
16]. However, Georgia’s interest is not as significant as the Florida’s local interest in deciding the
dispute between AA Metals and OmniMax. With respect to local interests, this factor weighs
heavily in favor of dismissal.
As AA Metals argued in its Motion to Dismiss, at its core, OmniMax’s claims relate to a
contract where performance was (and is) to occur in Florida. Florida is indisputably the state where
payment from OmniMax is due. OmniMax’s own claims turn on whether OmniMax is required to
pay AA Metals in Florida for aluminum alloy sold to it by AA Metals.
Moreover, OmniMax claims late delivery of aluminum alloy from AA Metals and the
receipt of defective aluminum alloy from OmniMax. The subject aluminum alloy was not to be
delivered to Georgia and was not delivered by AA Metals in Georgia. Rather, these claims relate
to (a) delivery of aluminum in Pennsylvania and Indiana, and (b) allegedly defective aluminum
located in Pennsylvania and Indiana. And, as stated above, all of OmniMax’s Purchase Order were
sent from Pennsylvania and Indiana.
In its Motion to Dismiss, AA Metals argued that a venue clause in the AA Metals Standard
Terms and Conditions of Sale evidences the parties’ intent to resolve disputes in Florida. As
12
OmniMax correctly points out in its Brief in Opposition, the venue clause in the AA Metals
Standard Terms and Conditions is part of an arbitration provision. That provision states: “Any
dispute arising out of or relating to these Terms and Conditions of Sale, or the breach thereof, shall
be referred to and settled by arbitration in Orange County, Florida, USA.” While arbitration may
have been waived, the arbitration provision nevertheless does evidence the parties’ intent with
respect to venue in connection with disputes between the parties.
OmniMax asserts that “AA Metals overstates OmniMax’s connection to Florida. Although
an OmniMax subsidiary is located in Florida, this action does not involve that subsidiary.” [Brief
in Opposition, p.16. But, OmniMax is indeed registered and authorized to do business in Florida,
and it has an office in Florida. [Lawson Aff., ¶ 26]. OmniMax therefore understood that it could
be sued in the state of Florida, as it voluntarily subjected itself to the jurisdiction of the Florida
courts. On the other hand, AA Metals is not registered in Georgia and does not have an office in
Georgia. [Lawson Aff., ¶¶7-11].
It is hard to “overstate” Florida’s has a keen interest in resolving the claims of the parties.
When weighing the local interests in play, (a) Florida is where both OmniMax and AA Metals are
registered to do business, (b) OmniMax knew it could be sued in Florida, (c) Florida is where both
AA Metals and OmniMax do business, (d) Florida is where payment under the parties’ agreement
is due, and (e) the parties showed an intent to have venue for disputes be in Florida.
WHEREFORE, AA Metals respectfully requests that this Court dismiss the Complaint in
this action for lack of personal jurisdiction and/or on forum non conveniens grounds.
DATED this 13th day of September, 2023.
STOVASH, CASE, SHAY & PEARCE, P.A.
13
By: /s/ Robert J. Stovash
Matthew J. Pearce, Esquire
Georgia Bar No. 569019
Primary Email: mpearce@scsplaw.com
Secondary Email: kfranco@scsplaw.com
Robert J. Stovash, Esquire*
Florida Bar No. 0769320
Primary Email: rstovash@scsplaw.com
Secondary Email: elaluz@scsplaw.com
*Admitted pro hac vice
The VUE at Lake Eola
220 N. Rosalind Avenue
Orlando, Florida 32801
Telephone: (407) 316-0393
Telecopier: (407) 316-8969
Counsel for Defendant, AA Metals, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to the
below-named counsel of record this 13th day of September, 2023:
___HAND DELIVERY K. Christopher Collins, Esquire
U.S. MAIL Husch Blackwell LLP
___FAX TRANSMISSION 736 Georgia Avenue, Suite 300
___EMAIL TRANSMISSION Chattanooga, Tennessee 37402
X ECF NOTICE chris.collins@huschblackwell.com
Counsel for OmniMax
___HAND DELIVERY Dieter J. Juedes, Esquire
U.S. MAIL 511 North Broadway, Suite 1100
___FAX TRANSMISSION Milwaukee, Wisconsin 53202
___EMAIL TRANSMISSION dieter.juedes@huschblackwell.com
X ECF NOTICE Counsel for OmniMax
___HAND DELIVERY George B. Green, Jr., Esquire
U.S. MAIL Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC
___FAX TRANSMISSION Suite 2400
___EMAIL TRANSMISSION Atlanta, Georgia 30326
X ECF NOTICE ggreenjr@wwhgd.com
Counsel for OmniMax
/s/ Robert J. Stovash
Robert J. Stovash, Esq.
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EXHIBIT "1"
EXHIBIT A
Villalpando, Meghan
From: Susan Coble
Sent: Friday, June 11, 2021 8:56 AM
To: Tobin Chapman
Subject: FW: 4017 Trial and new orders 2022
Orders are placed Couple of questions Trial orders we placed were at a conv of $.78 Now we are at $1.08 Is this correct?
Also he has 3105 our regular alloy at $1.03 Is that not available?
From: Robert Rogers
Sent: Thursday, June 10, 2021 5:52 PM
To: Susan Coble
Subject: RE: 4017 Trial and new orders 2022
***CAUTION: This email originated from outside the organization. Do not click links or open attachments
unless you recognize the sender and know the content is safe.***
Susan,
Will you be sending POs soon?
WE can do 1,illion per month Oct, Nov, Dec
Base FAB + LME 3‐month AVG month prior to delivery
4017 ‐ $1.08/lb.
Thickness adder
.012‐.019 ‐ + $0.03/lb.
< .012 ‐ + $0.06/lb.
Width Adder
36”/48”/49” – No Adder
30.1‐59.9 ‐ + $0.03/lb.
6”‐30” ‐ + $0.06/lb.
Above pricing is container delivery
Robert Rogers | Account Manager
(407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084
robert.rogers@aametals.com| https://www.aametals.com
11616 Landstar Blvd Orlando,FL32824
This email is intended for the addressee named above. Any unauthorized use or interception of this email is illegal. The email message or its attachments may contain confidential
or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding
the email to the addressee, please notify us immediately via return email and destroy the copy you have received.
1
From: Susan Coble
Sent: Wednesday, June 9, 2021 12:20 PM
To: Robert Rogers ; Tobin Chapman
Cc: Thomas Clinton ; Thomas Jannett
Subject: RE: 4017 Trial and new orders 2022
Please clarify what month you want these placed for
From: Robert Rogers
Sent: Wednesday, June 9, 2021 11:04 AM
To: Tobin Chapman
Cc: Susan Coble ; Thomas Clinton ; Thomas Jannett
Subject: Re: 4017 Trial and new orders 2022
***CAUTION: This email originated from outside the organization. Do not click links or open attachments
unless you recognize the sender and know the content is safe.***
This is great.
Susan please send when you can
Get Outlook for Android
Robert Rogers | Account Manager
(407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084
robert.rogers@aametals.com| https://www.aametals.com
11616 Landstar Blvd Orlando,FL32824
This email is intended for the addressee named above. Any unauthorized use or interception of this email is illegal. The email message or its attachments may contain confidential
or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding
the email to the addressee, please notify us immediately via return email and destroy the copy you have received.
From: Tobin Chapman
Sent: Wednesday, June 9, 2021 9:55:11 AM
To: Robert Rogers
Cc: Susan Coble ; Thomas Clinton ; Thomas Jannett
Subject: RE: 4017 Trial and new orders 2022
Hi Robert,
Per my discussion with Addy and Susan last week, I would like to confirm our plan to order 1M #’s of the 4017
contingent on the acceptance of the trials being run.
Susan going to have a conditional note on the PO.
Tobin
From: Robert Rogers
Sent: Monday, June 7, 2021 1:04 PM
2
To: Tobin Chapman
Subject: RE: 4017 Trial and new orders 2022
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Tobin,
Happy Monday!
Were you able to determine what you wanted in regards to 4017?
We want to place these orders quickly to make sure of delivery time
Robert Rogers | Account Manager
(407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084
robert.rogers@aametals.com| https://www.aametals.com
11616 Landstar Blvd Orlando,FL32824
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From: Robert Rogers
Sent: Friday, June 4, 2021 8:34 AM
To: Tobin Chapman
Subject: FW: 4017 Trial and new orders 2022
Tobin,
It was great talking to you earlier this week.
I hope things are starting to settle in for you.
I wanted to follow up on our conversation concerning below.
4017 Q4 (1mil monthly OCT‐DEC) needs to be placed quickly.
We have full confidence in the product working for your applications and can take the POs based on successful trial of
the material arriving at Lancaster.
We also would like to start discussions concerning 2022 at your earliest convenience January deliveries are filling up fast.
Robert Rogers | Account Manager
(407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084
robert.rogers@aametals.com| https://www.aametals.com
11616 Landstar Blvd Orlando,FL32824
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the email to the addressee, please notify us immediately via return email and destroy the copy you have received.
3
From: Robert Rogers
Sent: Friday, May 28, 2021 9:43 AM
To: Addy Farou ; Tobin Chapman
Subject: 4017 Trial and new orders 2022
Good morning Gentlemen,
As relayed to Addy earlier,
We have more availability for 4017 Q4
Approximately 1mil per month (Oct‐Dec)
This is the alloy that Susan (Lancaster) is trialing now.
We have already SOLD into the RV/Cargo trailer market as well.
If you are still tight on Metal and have needs for this time frame, we should investigate placing orders for this alloy.
In addition,
With the current market situation pertaining to lead time and costs, it is already time to review 2022
Mill capacity lead time is already into late December for orders placed today.
In order to secure capacity for Q1, we will need to place the orders shortly.
We have been experiencing cost increases on every aspect of the supply chain. It has continued to increase, and most
pundits are indicating we will not be seeing any relief until Q2 2022 or later.
Earlier we passed on price increase to help cover some of this cost. As you probably are aware – the costs have
continued their upward trend.
In addition to these cost increases, the market has shifted, and suppliers have increased pricing according to market
supply/demand.
With this in mind, we would propose an annual contract that is subject to quarterly review. All cost related factors
including LME, Middle West Premium, Shanghai Metal Value, Mill pricing, ocean freight and logistic cost will be checked
against industry index. If there are significant price changes, we will adjust the FAB price accordingly.
This will do 2 things – 1. Secure the production capacity you need, 2. Protect both of us any case of any major market
shift.
After reviewing our current costs, we are offering the following.
Current ETA/Source
4017 October (China)
3105 December (TEKNIK)
Base FAB + LME 3‐month AVG month prior to delivery
3105 ‐ $1.03/lb.
3104 ‐ $1.12/lb.
4017 ‐ $1.08/lb.
4
Thickness adder
.012‐.019 ‐ + $0.03/lb.
< .012 ‐ + $0.06/lb.
Width Adder
36”/48”/49” – No Adder
30.1‐59.9 ‐ + $0.03/lb.
6”‐30” ‐ + $0.06/lb.
Above pricing is container delivery
Flatbed (Anaheim) ‐ +$0.05/lb.
We appreciate the business relationship we have enjoyed together and look forward to continuing on into 2022 and
beyond.
Please review and advise when you would have time to discuss further.
Robert Rogers | Account Manager
(407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084
robert.rogers@aametals.com| https://www.aametals.com
11616 Landstar Blvd Orlando,FL32824
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or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding
the email to the addressee, please notify us immediately via return email and destroy the copy you have received.
From: Robert Rogers
Sent: Thursday, May 20, 2021 10:21 AM
To: Addy Farou
Subject: 4017 Trial and new orders
Addy,
WE have more availability for 4017 Q4
Approximately 1mil per month (Oct‐Dec)
This is alloy that Susan ( Lancaster) is trialing now.
We have already SOLD into the RV/Cargo trailer market as well.
If you are still tight on Metal and have needs for this time frame, we should investigate placing orders for this alloy
Please feel free to contact me if you would like to discuss
Robert Rogers | Account Manager
(407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084
robert.rogers@aametals.com| https://www.aametals.com
11616 Landstar Blvd Orlando,FL32824
5
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the email to the addressee, please notify us immediately via return email and destroy the copy you have received.
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have received this transmission in error, please reply to the sender indicating this error and delete the transmission from
your system immediately.
6
EXHIBIT B
Villalpando, Meghan
From: Chris Berg
Sent: Monday, November 7, 2022 2:48 PM
To: Don Lawson
Cc: Scott Cooper
Subject: FW: Meeting Agenda (proposed) and Preview Info
Don‐ Checking in to see if there are any updates on open items from your end?
Chris
Begin forwarded message:
From: Scott Cooper
Date: November 4, 2022 at 8:52:36 AM EDT
To: Don Lawson , Tobin Chapman
Cc: Robert Rogers
Subject: Re: Meeting Agenda (proposed) and Preview Info
Don/Robert, thks for mtg here are the actions/notes I took, pls add / edit:
Topics:
1. Inventory transfers
1. AA to send invoice detail for both 1‐2 from Don's email and OMX will work to
clear up (Majority 3105 ~800K lbs 583K invoiced and 307K to be invoiced that is
in the wrong account within PCM) ‐ DD
2. OMX/AA to continue to work on clean‐up of inventory at PCM to ensure it is in
the right account OMX or AA ‐ RR/TC
2. Release schedule
1. OMX will develop a schedule for all non Wynco 4017 material ‐ TC
2. All Wynco material will remain on hold until resolution
3. AP balance
1. OMX we will continue to pay cleared invoices on a weekly basis ‐ OMX
2. AP balance will continue to be inflated due to outstanding debit memo for bad
quality Wynco 4017material previous paid by OMX
4. Quality issues
1. ~6.6m lbs of 4017 from Wynco valued at ~$20m
2. OMX re‐iterate point that we did not approve Wynco mill, the material received
from Wynco has significantly different properties from material tested/approved
from Chalco/Teknik and is not fit for purpose.
3. OMX requested AA do Heat lot analysis on Wynco EEP material to ensure
mechanical properties are in line with those tested/approved from
Chalco/Teknik ‐ RR
OMX offered weekly f/up meeting to continue discussion, AA to review actions and circle back
on next steps
1
Thanks,
Scott Cooper
C: 512.739.7818
From: Don Lawson
Date: Thursday, November 3, 2022 at 2:34 PM
To: Scott Cooper , Tobin Chapman
Cc: Chris Berg , Robert Rogers
Subject: Meeting Agenda (proposed) and Preview Info
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attachments unless you recognize the sender and know the content is safe.***
Scott & Tobin,
Look forward to speaking with you both soon.
Proposed Agenda:
1. Accounting “true‐up” on Inventory
2. Release Schedule Conformance and Next Steps
3. Past Due AR – total now $4.2 million after today’s payment applied (see attachment)
4. Specialty – 3015 & 4017 plan
Below is some reference material that we would like to discuss as part of the meeting. This ties to items
1 & 2 above.
Inventory Mismatch:
The first scenario is a set of 9 invoices that are still being reported by PCM as residing in AAM
inventory at PCM‐GF.
1. These were invoiced by AAM in early June 2022.
2. Invoices total 483,000 pounds
3. 81% (7 of 9 invoices) are 3105 alloy material
4. AAM has sent several requests to PCM to move these to Omnimax inventory
5. AAM is told by PCM that they have instructions not to move the inventory.
1. This product should be transferred to Omnimax inventory in CoilZone.
The second scenario involves product that is clearly in Omnimax’s inventory now, but AAM has failed
to invoice.
1. The total is 307,000 pounds
2. 33% is 3105 alloy, the balance is 4017
3. This product is already in Omnimax’s possession
2. AAM will invoice this product to square up the books
The “Hold for Release” Plan (June 8, 2022)
2
Don Lawson | CFO
(321) 250‐1467 / (407) 377‐0246 ext. 134 | (678) 492‐5407
don.lawson@aametals.com | https://www.aametals.com
11616 Landstar Blvd. Orlando, FL 32824
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or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding
the email to the addressee, please notify us immediately via return email and destroy the copy you have received.
3
EXHIBIT C
i i-l{-i i*_. }\.,V t .}f l i(:f-.} {};
mf,Ah.|
h4 ITCHELL* ps-$-r
?463 Conroy Windermere Road 'l'el. 40'1.601.6941
Suite A.
Irax. 407.601.5982
Orlando, Florida" 32835
:r"rvs:,r#"k*vjgai;r,_c_p-ur
November 16,2022
VIA MAIL
YIA EMAIL
OmniMax
Attn: Clris Berg
30 Technology Pkwy Suite 600
GA 3A092
Peachtree Corners,
gi:*rgig*tlruu::$x"s*$1
Re: Our Client: AA Metals,Inc
Our File No. 22099
NOTICE OF BRAACH / DEMAND FOR PAYMENT
Dear Mr. Berg,
This firm has been retained by AA Metals, Inc, ("AAM") in relation to several issues
arising from a series of contracts OnrniMax enteretl into with AAM for the purchase and sale of
aluminum product. (See the attrached schedule of related OrnniMax purchase orders and AAM
sales orders)' Kindly direct all future correspondence concerning the matters addressed herein to
the undersigned attorney.
A) Background
Primarily in late Q -}AZI and early
Q1-2022, OmniMax submitted various purchase
orders for both 105 and 4017 alloy aluminum products for its Consumer and Specialty / RV
3
divisions' In light of availability issues related to high
Sent: Friday, December 30, 2022 10:11 AM
To: John C. Wayne; Chris Berg; Don Lawson
Subject: AA Metals---Omnimax visit Summary
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recognize the sender and know the content is safe.***
Dear John,
It was good meeting you last week. The following summarizes what we discussed and agreed:
1. Omnimax will take all Consumer division products (Wynco and Non‐Wynco) tota
Preview
IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIA OMNIMAX INTERNATIONAL, LLC, Plaintiff, Civil Action No.: 23-A-05450-11 v. AA METALS, INC., Defendant. ________________________________/ DEFENDANT’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW Defendant, AA METALS, INC. (“AA Metals”), a Florida corporation, by counsel, files this Reply Brief in support of its Motion to Dismiss and to address certain arguments made by Plaintiff, OMNIMAX INTERNATIONAL, LLC (“OmniMax”), in its Brief in Opposition to the Motion to Dismiss (the “Brief in Opposition”). I. INTRODUCTION. OmniMax and AA Metals agree that this case centers on an agreement under which AA Metals agreed to supply millions of pounds of aluminum alloy to OmniMax in exchange for millions of dollars. They also agree that OmniMax’s principal place of business in in Peachtree Corners, Georgia (Compl., ¶ 8), and AA Metal’s principal place of business is in Orlando, Florida. (Compl., ¶ 3). However, the parties appear to disagree on most everything else. In particular, OmniMax believes post-dispute communications between certain representatives of OmniMax and AA Metals provide support for this Court exercising personal jurisdiction over AA Metals in this case. Apparently, OmniMax believes that the post-dispute communications are part of the consummation of the agreement and transaction between OmniMax and AA Metals. With respect to forum non conveniens, downplays the factors in favor of dismissal of the Complaint. Because the actual facts do not support this Court exercising personal jurisdiction over AA Metals in this case, the Complaint should be dismissed. Alternatively, this Court should dismiss the Complaint on forum non conveniens grounds. II. THE AFFIDAVITS FILED BY OMNIMAX DO NOT SUPPORT THE EXERCISE OF PERSONAL JURISDICTION OVER AA METALS. OmniMax filed four Affidavits with Exhibits with its Brief in Opposition. OmniMax claims the Affidavits and the Exhibits “establish[] jurisdiction” over AA Metals [Brief in Opposition, p. 2]. But, that is not true. The first Affidavit filed by OmniMax is of Mr. Dieter J. Juedes, one of OmniMax’s attorneys in this case. Attached to Mr. Juedes’ Affidavit is a copy of OmniMax’s Motion to Dismiss or Stay, which was filed in the lawsuit in Orange County, Florida. [Juedes Aff., Ex. A]. Also attached to Mr. Juedes’ Affidavit are copies of two pages from the AA Metals website. [Juedes Aff., Ex. B]. Nothing in Mr. Juedes’ Affidavit speaks to the issue of personal jurisdiction, and nothing in the Exhibits thereto speaks to the issue of personal jurisdiction. The second Affidavit filed by OmniMax is of Mr. Christopher Berg, who is “the Vice President and General Counsel at OmniMax International, LLC.” [Berg Aff., ¶ 4]. Mr. Berg’s Affidavit does not establish or otherwise lend support to this Court’s exercise of personal jurisdiction over AA Metals either. Mr. Berg Affidavit only addresses his involvement with AA Metals on behalf on OmniMax after the dispute between the parties arose.1 Specifically, Mr. Berg states that in the fall of 2022 and continuing through June 2023, he 1 The dispute between the parties arose in 2021/2022, as OmniMax correctly asserts in its Complaint. [See e.g., Complaint, ¶¶ 41-42, 47-48, 51]. 2 had communications with Mr. Don Lawson, AA Metals’ Chief Financial Officer regarding the aluminum at issue. [Berg Aff., ¶ 7]. Mr. Berg states that he also had communications with Mr. Jack Cheng, AA Metals’ Chief Executive Officer, and Mr. Ryan Mitchell, an attorney for AA Metals, regarding the aluminum alloy during that same time frame. [Berg Aff., ¶¶ 8-11]. Mr. Berg further discusses in his Affidavit an Interim Resolution Agreement entered into by AA Metals and OmniMax dated April 12, 2023, concerning an interim resolution of the parties’ dispute. [Berg Aff., ¶ 12; Ex. E]. Notably, Mr. Berg’s is silent as to his involvement in the discussions and negotiations with AA Metals leading to the agreement and the consummation of the transaction between AA Metals and OmniMax. This is because Mr. Berg was not involved in any such discussions or negotiations with AA Metals, as explained in more detail in Section III below. As such, Mr. Berg’s Affidavit does not evidence or otherwise lend support for this Court’s exercise of personal jurisdiction over AA Metals. The third Affidavit filed by OmniMax is of Mr. John Wayne, the Chief Executive Officer of OmniMax. [Wayne Aff., ¶ 4]. Mr. Wayne states that he met with Mr. Jack Cheng at OmniMax’s headquarters in Georgia. [Wayne Aff., ¶ 4]. The meeting occurred on December 21, 2022 [Wayne Aff., ¶ 7], which was after the dispute between OmniMax and AA Metals arose. Mr. Wayne discusses emails he received from Mr. Cheng of AA Metals. But, again, these emails (sent between December 30, 2022, and February 1, 2023), all occurred after the dispute arose. As with Mr. Berg’s Affidavit Mr. Wayne’s Affidavit is silent as to his involvement in the discussions and negotiations with AA Metals leading to the agreement and the consummation of the transaction between AA Metals and OmniMax. As such, Mr. Wayne’s Affidavit does not evidence or otherwise lend support for this Court’s exercise of personal jurisdiction over AA 3 Metals. The fourth Affidavit filed by OmniMax is of Tobin Chapman, who is the Director of Sourcing for aluminum alloy for OmniMax. [Chapman Aff., ¶ 4]. In his Affidavit, Mr. Chapman claims to have had over 100 calls with Robert Rogers, AA Metals’ Sales Manager, since May 2021. [Chapman Aff., ¶ 8]. He also states that he received a total of three emails from AA Metals, two from Mr. Rogers and one from Mr. Lawson, which are attached to his Affidavit. [Chapman Aff., ¶ 9; Ex. A and Ex. B]. A full explanation of these emails is set forth in Section III below. Mr. Chapman’s Affidavit is somewhat misleading. First, a review of the emails attached to his Affidavit evidences that others were involved in the email string, and certain of those individuals were not in Georgia. Second, Mr. Chapman states in his Affidavit that he participated in one video call on November 3, 2022, with Mr. Robert Rogers and Mr. Don Lawson from AA Metals. However, the video call related to the dispute between the parties, as Exhibit B to Mr. Chapman’s Affidavit evidences. Third, Mr. Chapman states that “OmniMax issued purchase orders to AA Metals for approximately 30 million pound of aluminum, including 4017 aluminum and 3105 aluminum. OmniMax’s procurement personnel are located in Georgia.” [Chapman Aff., ¶ 11 (emphasis added). However, missing from Mr. Chapman’s Affidavit is any statement by him concerning where the OmniMax purchase orders were issued from. In fact, the purchase orders were issued from the Specialty Division of OmniMax in Indiana and the Consumer Division of OmniMax in Pennsylvania, as is explained below. Mr. Chapman’s concludes his Affidavit by stating that “[a]pproximately 33,855 pounds of aluminum supplied by AA Metals was shipped to Indiana, then transported to OmniMax’s plant in Duluth, Georgia, . . . .” [Chapman Aff., ¶ 13]. However, Mr. Chapman leaves out of his Affidavit 4 that AA Metals did not transport, ship or otherwise move the aluminum from Indiana to Georgia, as OmniMax appears to imply in its Brief in Opposition. [Brief in Opposition, p. 3]. Like the other Affidavits filed by OmniMax, Mr. Chapman’s Affidavit does not evidence or lend support to this Court’s exercise of personal jurisdiction over AA Metals. III. THE AFFIDAVITS FILED BY AA METALS SHOW THAT PERSONAL JURISDICTION DOES NOT EXIST OVER AA METALS IN THIS ACTION. With its Motion to Dismiss, AA Metals filed the Affidavit of Mr. Don Lawson, the Chief Financial Officer of AA Metals.2 With this Reply Brief, AA Metals files an Affidavit of Mr. Robert Rogers, the Sales Director of AA Metals, as further support for AA Metals’ Motion to Dismiss and to respond to the incomplete averments of OmniMax’s affiants. Mr. Rogers’ Affidavit is attached hereto as Exhibit “1.” Mr. Rogers “was personally involved in the discussions and negotiations with OmniMax leading up to OmniMax’s Consumer Division and OmniMax’s Specialty Division ordering from AA Metals the aluminum alloy which is the subject of this action.” [Rogers Aff., ¶ 3]. As Mr. Rogers unequivocally states: 4. All of the aluminum alloy which is the subject of this action was ordered by OmniMax’s Consumer Division in Pennsylvania through purchase orders from Pennsylvania, and OmniMax’s Specialty Division in Indiana through purchase orders from Indiana. No purchase orders for the subject aluminum alloy were submitted by OmniMax to AA Metals from Georgia. [Rogers Aff., ¶ 4]. As for delivery of the subject aluminum alloy, Mr. Rogers is also clear and unequivocal. He states: 5. None of the subject aluminum alloy was to be delivered by AA Metals to the state of Georgia. Rather, the aluminum alloy was ultimately to be delivered to OmniMax’s Consumer Division in Pennsylvania (some of which 2 AA Metals will not repeat the contents of Mr. Lawson’s Affidavit here, but continues to rely on Mr. Lawson’s Affidavit in support of its Motion to Dismiss and it arguments in this Reply Brief. 5 through a third party, Vorteq, in Pennsylvania) and OmniMax’s Specialty Division in Indiana (through a third party, Precoat Metals, in Indiana). [Rogers Aff., ¶ 4]. In his Affidavit, Mr. Rogers then addresses all of the email strings attached as Exhibits to the Affidavits of Mr. Berg, Mr. Wayne and Mr. Chapman (and his own Affidavit). Mr. Rogers explains the involvement (or lack of involvement) of the OmniMax individuals shown in the email strings. Mr. Rogers explains that Ms. Susan Coble “works at OmniMax’s Consumer Division in Lancaster, Pennsylvania,” and that “[s]he was involved with [him] in the discussions leading up to OmniMax’s Consumer Division ordering aluminum alloy for OmniMax’s Consumer Division. Ms. Coble entered the initial purchase orders and approved the trial orders of the “4017” aluminum alloy.” [Rogers Aff., ¶ 8 (emphasis added]. As for Mr. Berg, Mr. Rogers explains that “Mr. Berg was not involved in any discussions or negotiations with AA Metals leading up to OmniMax ordering the subject aluminum alloy from AA Metals. Mr. Berg only became involved on behalf of OmniMax after a dispute arose between AA Metals and OmniMax.” [Rogers Aff., ¶ 11]. Mr. Rogers further states that soon after the November 2022 email string took place: AA Metals, by counsel, made written demand on OmniMax, dated November 16, 2022, for payment of $5,177,316.70 related to AA Metals’ past due invoices. The written demand was sent to OmniMax in care of Mr. Berg. A copy of the demand letter is attached hereto as Exhibit C. As stated in the demand letter, if payment was not made by OmniMax by November 30, 2022, AA Metals was prepared to file a lawsuit against OmniMax. [Rogers Aff., ¶ 12]. After the demand letter, Mr. Wayne of OmniMax became involved with Mr. Cheng of AA Metals [Rogers Aff., ¶ 13 - 14], and then AA Metals and OmniMax entered into the Interim 6 Resolution Agreement (which is attached to Mr. Berg’s Affidavit). [Rogers Aff., ¶ 15]. Finally, as Mr. Rogers explains, Mr. Berg then sent an email “on June 21, 2023, unilaterally voiding and cancelling the Interim Resolution Agreement.” [Id., Ex. F]. Two (2) days later, OmniMax raced to the courthouse and filed the instant action against AA Metals. [Id.] IV. ARGUMENT. A. AA Metals Is Not Subject to Personal Jurisdiction. Here, it is undisputed that AA Metals is a nonresident of Georgia. As a result, personal jurisdiction must be established pursuant to Georgia’s Long Arm Statute, O.C.G.A. §9-10-91. In this regard, A Georgia court may exercise personal jurisdiction over a nonresident defendant where two requirements are met. First, the defendant must have committed some act or engaged in some activity set forth in Georgia’s Long-Arm Statute, OCGA § 9–10–91. Second, the exercise of jurisdiction over a particular defendant pursuant to the Long Arm Statute must comport with the requirements of due process. Lima Delta Co. v. Global Aerospace, Inc., 325 Ga. App. 76, 752 S.E. 2d 135, 138-139 (Ga. Ct. App. 2013), citing Hyperdynamics Corp. v. Southridge Capital Mgmt., 305 Ga. App. 283, 293 699 S.E. 2d 456 (Ga. 2010). See also Cooper Tire & Rubber Company v. McCall, 312 Ga. 422, 863 S.E. 2d 81 (2021) (explaining personal jurisdiction). OmniMax claims that this Court has personal jurisdiction over AA Metals because AA Metals transacted business with OmniMax. [Brief in Opposition, p. 5]. To determine whether a defendant has transacted business in Georgia pursuant to O.C.G.A. § 9-10-91(1), the Georgia courts have developed a three-part test: Jurisdiction exists on the basis of transacting business in this state (1) if the nonresident defendant has purposefully done some act or consummated some transaction in this state, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this state does not offend traditional notions of fairness and substantial justice. 7 Lima Delta Co., 325 Ga. App. at 79-80, 752 S.E. 2d at 139. “The second part [of the test] examines whether the cause of action ‘rises from or is connected with [some transaction in Georgia],’ . . . .” Rothchild & Co. Continuation Holdings A.G. v. Sklrov, 440 440 F.Supp.3d 1385 (N.D. Ga. 2020) (citations omitted). OmniMax cannot establish the second part of the three-part test. In fact, OmniMax glossed over the second-part of the test. OmniMax’s Complaint is grounded in the parties’ contractual relationship, by which AA Metals sold and delivered millions of pounds of aluminum alloy coils to OmniMax’s Specialty Division, which is located in Indiana, and OmniMax’s Consumer Division, which is located in Pennsylvania. The aluminum alloy sold to it by AA Metals was delivered to facilities located in the state of Indiana where OmniMax’s Specialty Division is located and Pennsylvania where OmniMax’s Consumer Division is located. [Lawson Aff., ¶¶ 12 & 13; Rogers Aff., ¶ 5]. No aluminum was to be delivered by AA Metals in the state of Georgia. [Rogers Aff., ¶ 5]. In fact, OmniMax’s own Complaint does not allege that aluminum alloy was to be delivered by AA Metals into the state of Georgia. And, none of OmniMax’s affiants make such a claim. Further, the aluminum alloy at issue was not ordered by OmniMax from Georgia and so, no agreement was reached in Georgia and the transaction was not consummated in Georgia. Rather, the Purchase Orders were issued from the Specialty Division in Indiana and the Consumer Division in Pennsylvania. [Rogers Aff. ¶ 4]. None of the OmniMax affiants dispute this fact. The Purchase Orders were obviously accepted by AA Metals in Florida. As for payment for the aluminum alloy purchased by OmniMax, it is undisputed that payment under the agreement and the transaction was and is indisputably due to AA Metals at AA Metal’s offices in Orlando, Florida. [Lawson Aff., ¶ 18]. OmniMax’s reliance on communications and a meeting that indisputably occurred after the 8 dispute between the parties cannot support the exercise of personal jurisdiction over AA Metals. Those communications were not part of the consummation of the transaction between the parties, but instead related to efforts to solve the dispute between the parties after the transaction had been consummated. OmniMax also claims that AA Metals is subject to personal jurisdiction in Georgia under O.C.G.A. Section 9-10-91(2) and (3) because AA Metals made false claims to OmniMax. [Brief in Opposition, p. 11]. The only tort claim pled by OmniMax is its negligent misrepresentation claim, which is nothing more than its contract, warranty, declaratory judgment, and unjust enrichment claims dressed-up as a tort claim. The problem with OmniMax’s argument is that there exists no showing that the alleged false claims occurred in Georgia or that OmniMax was damaged in Georgia. Again, the subject aluminum alloy was not ordered from Georgia and was never to be delivered to Georgia. Further, in its own Complaint, OmniMax refers to the “4017” aluminum alloy OmniMax “was testing.” [See e.g., Complaint, ¶¶ 103 and 105]. Yet, it is undisputed that the “4017” aluminum alloy OmniMax was “testing” was the subject of trial orders delivered by AA Metals to OmniMax’s Consumer Division in Lancaster, Pennsylvania for testing and OmniMax’s approval. [Rogers Aff., ¶ 7]. While OmniMax asserts that its “damage” was sustained “at its principal place of business in Georgia” [see Brief in Opposition], there exists no support that assertion. In short, OmniMax’s causes of action do not arise from or are connected with the consummation of a transaction in Georgia or an alleged tort in Georgia. As such, this Court lacks personal jurisdiction over AA Metals in this case.3 3 Because the requirements of Georgia’s Long-Arm statute are not satisfied, it is unnecessary to determine whether the exercise of jurisdiction comports with the requirement of due process. 9 B. The Complaint Should Be Dismissed On Forum Non Conveniens Grounds. As AA Metals explained in its Motion to Dismiss, a court should dismiss an action if “in the interests of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside of this state.” O.C.G.A. § 9-10-31.1(a). AA Metals and OmniMax both agree that when considering a motion to dismiss on forum non convenience grounds, the court is to consider the following factors: (1) Relative ease of access to sources of proof; (2) Availability and cost of compulsory process for attendance of unwilling witnesses; (3) Possibility of viewing of the premises . . .; (4) Unnecessary expense or trouble to defendant not necessary to OmniMax’s own right to pursue his or her remedy; (5) Administrative difficulties for the forum courts; (6) Existence of local interests in deciding the case locally; and (7) The traditional deference given to a OmniMax’s choice of forum. O.C.G.A. § 9-10-31.1(a) (punctuation omitted). The application of the above factors to the peculiar circumstances of this action require dismissal of the Complaint in favor of the court in Orange County, Florida. AA Metals addresses a couple of the factors below. 1. Unnecessary Expense/Trouble To Defendant Not Necessary To OmniMax’s Own Right To Pursue Its Remedy. With regard to the factor concerning unnecessary expense or trouble to the AA Metals not necessary to OmniMax’s own right to pursue its remedy, this factor slightly weighs in favor of dismissal of the Complaint. Contrary to OmniMax’s argument, litigation for AA Metals in Georgia will indeed be more expensive for AA Metals than litigating OmniMax’s claims in the Florida Lawsuit (described in the Motion to Dismiss) along with AA Metals’ claims. AA Metals is located in Florida, not Georgia. Moreover, OmniMax is authorized to conduct business in Florida and does But, even if the Court would get to this issue, jurisdiction over AA Metals would not comport with due process as AA Metals has not done some act in Georgia. 10 business in Florida. [Lawson Affidavit, ¶ 26]. It therefore has the ability to litigate its claims in the Florida court, and it certainly knew it could be sued in the state of Florida given that it voluntarily registered to do business in Florida. 2. Administrative Difficulties For The Forum Courts. As for administrative difficulties, this factor also weighs in favor of dismissal. First, the governing law is Florida law, despite OmniMax’s argument to the contrary. OmniMax bases its argument that Georgia law applies on the Terms and Conditions on OmniMax’s Purchase Orders, which OmniMax claims (incorrectly) control the parties’ agreement and transaction. [Brief in Opposition, p. 16]. OmniMax asserts that “OmniMax’s Purchase Orders state that the parties’ agreement is governed shall be governed by the laws of the state where the Purchase Order was originally sent from, which is Georgia.” [Brief in Opposition, p. 16 (emphasis added)]. OmniMax cites to paragraph 11 of the Affidavit on Mr. Chapman as support for this argument. However, Mr. Chapman’s Affidavit does not provide any such support. Mr. Chapman simply states that “”OmniMax’s procurement personnel are located in Georgia.” [Chapman Aff., ¶ 11]. Nevertheless, all of the OmniMax Purchase Orders were “sent from” either Pennsylvania, where OmniMax’s Consumer Division is located, or Indiana, where OmniMax’s Specialty Division is located, not Georgia. [Rogers Aff., ¶ 4]. In no circumstance will Georgia law apply to the claims. Second, OmniMax suggests that this case is effectively a contract dispute, and that “[t]his Court “can adeptly apply contract law of either Georgia or Florida to this case.” [Brief in Opposition, p. 16]. But, that is not what OmniMax asserts in its Complaint. OmniMax asserts not only a claim for breach of contract, but also claims for breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness, negligent misrepresentation, two claims for declaratory judgment, and unjust enrichment. So, this case is not 11 a simple contract case. It involves contract-related claims and tort claims (to which the separate and independent tort doctrine will likely apply), as well as claims for declaratory judgment. Georgia law and Florida law may differ with respect to how these claims should be addressed. Because Florida law applies, a Florida court is better able to apply Florida law to the claims of the parties. 3. Existence Of Local Interests In Deciding The Case Locally. OmniMax argues that “Georgia has an interest in adjudicating this dispute because it involves a significant harm suffered by OmniMax, a Georgia business. [Brief in Opposition, p. 16]. However, Georgia’s interest is not as significant as the Florida’s local interest in deciding the dispute between AA Metals and OmniMax. With respect to local interests, this factor weighs heavily in favor of dismissal. As AA Metals argued in its Motion to Dismiss, at its core, OmniMax’s claims relate to a contract where performance was (and is) to occur in Florida. Florida is indisputably the state where payment from OmniMax is due. OmniMax’s own claims turn on whether OmniMax is required to pay AA Metals in Florida for aluminum alloy sold to it by AA Metals. Moreover, OmniMax claims late delivery of aluminum alloy from AA Metals and the receipt of defective aluminum alloy from OmniMax. The subject aluminum alloy was not to be delivered to Georgia and was not delivered by AA Metals in Georgia. Rather, these claims relate to (a) delivery of aluminum in Pennsylvania and Indiana, and (b) allegedly defective aluminum located in Pennsylvania and Indiana. And, as stated above, all of OmniMax’s Purchase Order were sent from Pennsylvania and Indiana. In its Motion to Dismiss, AA Metals argued that a venue clause in the AA Metals Standard Terms and Conditions of Sale evidences the parties’ intent to resolve disputes in Florida. As 12 OmniMax correctly points out in its Brief in Opposition, the venue clause in the AA Metals Standard Terms and Conditions is part of an arbitration provision. That provision states: “Any dispute arising out of or relating to these Terms and Conditions of Sale, or the breach thereof, shall be referred to and settled by arbitration in Orange County, Florida, USA.” While arbitration may have been waived, the arbitration provision nevertheless does evidence the parties’ intent with respect to venue in connection with disputes between the parties. OmniMax asserts that “AA Metals overstates OmniMax’s connection to Florida. Although an OmniMax subsidiary is located in Florida, this action does not involve that subsidiary.” [Brief in Opposition, p.16. But, OmniMax is indeed registered and authorized to do business in Florida, and it has an office in Florida. [Lawson Aff., ¶ 26]. OmniMax therefore understood that it could be sued in the state of Florida, as it voluntarily subjected itself to the jurisdiction of the Florida courts. On the other hand, AA Metals is not registered in Georgia and does not have an office in Georgia. [Lawson Aff., ¶¶7-11]. It is hard to “overstate” Florida’s has a keen interest in resolving the claims of the parties. When weighing the local interests in play, (a) Florida is where both OmniMax and AA Metals are registered to do business, (b) OmniMax knew it could be sued in Florida, (c) Florida is where both AA Metals and OmniMax do business, (d) Florida is where payment under the parties’ agreement is due, and (e) the parties showed an intent to have venue for disputes be in Florida. WHEREFORE, AA Metals respectfully requests that this Court dismiss the Complaint in this action for lack of personal jurisdiction and/or on forum non conveniens grounds. DATED this 13th day of September, 2023. STOVASH, CASE, SHAY & PEARCE, P.A. 13 By: /s/ Robert J. Stovash Matthew J. Pearce, Esquire Georgia Bar No. 569019 Primary Email: mpearce@scsplaw.com Secondary Email: kfranco@scsplaw.com Robert J. Stovash, Esquire* Florida Bar No. 0769320 Primary Email: rstovash@scsplaw.com Secondary Email: elaluz@scsplaw.com *Admitted pro hac vice The VUE at Lake Eola 220 N. Rosalind Avenue Orlando, Florida 32801 Telephone: (407) 316-0393 Telecopier: (407) 316-8969 Counsel for Defendant, AA Metals, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to the below-named counsel of record this 13th day of September, 2023: ___HAND DELIVERY K. Christopher Collins, Esquire U.S. MAIL Husch Blackwell LLP ___FAX TRANSMISSION 736 Georgia Avenue, Suite 300 ___EMAIL TRANSMISSION Chattanooga, Tennessee 37402 X ECF NOTICE chris.collins@huschblackwell.com Counsel for OmniMax ___HAND DELIVERY Dieter J. Juedes, Esquire U.S. MAIL 511 North Broadway, Suite 1100 ___FAX TRANSMISSION Milwaukee, Wisconsin 53202 ___EMAIL TRANSMISSION dieter.juedes@huschblackwell.com X ECF NOTICE Counsel for OmniMax ___HAND DELIVERY George B. Green, Jr., Esquire U.S. MAIL Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC ___FAX TRANSMISSION Suite 2400 ___EMAIL TRANSMISSION Atlanta, Georgia 30326 X ECF NOTICE ggreenjr@wwhgd.com Counsel for OmniMax /s/ Robert J. Stovash Robert J. Stovash, Esq. 14 EXHIBIT "1" EXHIBIT A Villalpando, Meghan From: Susan Coble Sent: Friday, June 11, 2021 8:56 AM To: Tobin Chapman Subject: FW: 4017 Trial and new orders 2022 Orders are placed Couple of questions Trial orders we placed were at a conv of $.78 Now we are at $1.08 Is this correct? Also he has 3105 our regular alloy at $1.03 Is that not available? From: Robert Rogers Sent: Thursday, June 10, 2021 5:52 PM To: Susan Coble Subject: RE: 4017 Trial and new orders 2022 ***CAUTION: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.*** Susan, Will you be sending POs soon? WE can do 1,illion per month Oct, Nov, Dec Base FAB + LME 3‐month AVG month prior to delivery 4017 ‐ $1.08/lb. Thickness adder .012‐.019 ‐ + $0.03/lb. < .012 ‐ + $0.06/lb. Width Adder 36”/48”/49” – No Adder 30.1‐59.9 ‐ + $0.03/lb. 6”‐30” ‐ + $0.06/lb. Above pricing is container delivery Robert Rogers | Account Manager (407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084 robert.rogers@aametals.com| https://www.aametals.com 11616 Landstar Blvd Orlando,FL32824 This email is intended for the addressee named above. Any unauthorized use or interception of this email is illegal. The email message or its attachments may contain confidential or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding the email to the addressee, please notify us immediately via return email and destroy the copy you have received. 1 From: Susan Coble Sent: Wednesday, June 9, 2021 12:20 PM To: Robert Rogers ; Tobin Chapman Cc: Thomas Clinton ; Thomas Jannett Subject: RE: 4017 Trial and new orders 2022 Please clarify what month you want these placed for From: Robert Rogers Sent: Wednesday, June 9, 2021 11:04 AM To: Tobin Chapman Cc: Susan Coble ; Thomas Clinton ; Thomas Jannett Subject: Re: 4017 Trial and new orders 2022 ***CAUTION: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.*** This is great. Susan please send when you can Get Outlook for Android Robert Rogers | Account Manager (407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084 robert.rogers@aametals.com| https://www.aametals.com 11616 Landstar Blvd Orlando,FL32824 This email is intended for the addressee named above. Any unauthorized use or interception of this email is illegal. The email message or its attachments may contain confidential or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding the email to the addressee, please notify us immediately via return email and destroy the copy you have received. From: Tobin Chapman Sent: Wednesday, June 9, 2021 9:55:11 AM To: Robert Rogers Cc: Susan Coble ; Thomas Clinton ; Thomas Jannett Subject: RE: 4017 Trial and new orders 2022 Hi Robert, Per my discussion with Addy and Susan last week, I would like to confirm our plan to order 1M #’s of the 4017 contingent on the acceptance of the trials being run. Susan going to have a conditional note on the PO. Tobin From: Robert Rogers Sent: Monday, June 7, 2021 1:04 PM 2 To: Tobin Chapman Subject: RE: 4017 Trial and new orders 2022 ***CAUTION: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.*** Tobin, Happy Monday! Were you able to determine what you wanted in regards to 4017? We want to place these orders quickly to make sure of delivery time Robert Rogers | Account Manager (407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084 robert.rogers@aametals.com| https://www.aametals.com 11616 Landstar Blvd Orlando,FL32824 This email is intended for the addressee named above. Any unauthorized use or interception of this email is illegal. The email message or its attachments may contain confidential or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding the email to the addressee, please notify us immediately via return email and destroy the copy you have received. From: Robert Rogers Sent: Friday, June 4, 2021 8:34 AM To: Tobin Chapman Subject: FW: 4017 Trial and new orders 2022 Tobin, It was great talking to you earlier this week. I hope things are starting to settle in for you. I wanted to follow up on our conversation concerning below. 4017 Q4 (1mil monthly OCT‐DEC) needs to be placed quickly. We have full confidence in the product working for your applications and can take the POs based on successful trial of the material arriving at Lancaster. We also would like to start discussions concerning 2022 at your earliest convenience January deliveries are filling up fast. Robert Rogers | Account Manager (407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084 robert.rogers@aametals.com| https://www.aametals.com 11616 Landstar Blvd Orlando,FL32824 This email is intended for the addressee named above. Any unauthorized use or interception of this email is illegal. The email message or its attachments may contain confidential or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding the email to the addressee, please notify us immediately via return email and destroy the copy you have received. 3 From: Robert Rogers Sent: Friday, May 28, 2021 9:43 AM To: Addy Farou ; Tobin Chapman Subject: 4017 Trial and new orders 2022 Good morning Gentlemen, As relayed to Addy earlier, We have more availability for 4017 Q4 Approximately 1mil per month (Oct‐Dec) This is the alloy that Susan (Lancaster) is trialing now. We have already SOLD into the RV/Cargo trailer market as well. If you are still tight on Metal and have needs for this time frame, we should investigate placing orders for this alloy. In addition, With the current market situation pertaining to lead time and costs, it is already time to review 2022 Mill capacity lead time is already into late December for orders placed today. In order to secure capacity for Q1, we will need to place the orders shortly. We have been experiencing cost increases on every aspect of the supply chain. It has continued to increase, and most pundits are indicating we will not be seeing any relief until Q2 2022 or later. Earlier we passed on price increase to help cover some of this cost. As you probably are aware – the costs have continued their upward trend. In addition to these cost increases, the market has shifted, and suppliers have increased pricing according to market supply/demand. With this in mind, we would propose an annual contract that is subject to quarterly review. All cost related factors including LME, Middle West Premium, Shanghai Metal Value, Mill pricing, ocean freight and logistic cost will be checked against industry index. If there are significant price changes, we will adjust the FAB price accordingly. This will do 2 things – 1. Secure the production capacity you need, 2. Protect both of us any case of any major market shift. After reviewing our current costs, we are offering the following. Current ETA/Source 4017 October (China) 3105 December (TEKNIK) Base FAB + LME 3‐month AVG month prior to delivery 3105 ‐ $1.03/lb. 3104 ‐ $1.12/lb. 4017 ‐ $1.08/lb. 4 Thickness adder .012‐.019 ‐ + $0.03/lb. < .012 ‐ + $0.06/lb. Width Adder 36”/48”/49” – No Adder 30.1‐59.9 ‐ + $0.03/lb. 6”‐30” ‐ + $0.06/lb. Above pricing is container delivery Flatbed (Anaheim) ‐ +$0.05/lb. We appreciate the business relationship we have enjoyed together and look forward to continuing on into 2022 and beyond. Please review and advise when you would have time to discuss further. Robert Rogers | Account Manager (407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084 robert.rogers@aametals.com| https://www.aametals.com 11616 Landstar Blvd Orlando,FL32824 This email is intended for the addressee named above. Any unauthorized use or interception of this email is illegal. The email message or its attachments may contain confidential or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding the email to the addressee, please notify us immediately via return email and destroy the copy you have received. From: Robert Rogers Sent: Thursday, May 20, 2021 10:21 AM To: Addy Farou Subject: 4017 Trial and new orders Addy, WE have more availability for 4017 Q4 Approximately 1mil per month (Oct‐Dec) This is alloy that Susan ( Lancaster) is trialing now. We have already SOLD into the RV/Cargo trailer market as well. If you are still tight on Metal and have needs for this time frame, we should investigate placing orders for this alloy Please feel free to contact me if you would like to discuss Robert Rogers | Account Manager (407) 789‐1603 / (407) 377‐0246 ext. 103| (863) 514‐6084 robert.rogers@aametals.com| https://www.aametals.com 11616 Landstar Blvd Orlando,FL32824 5 This email is intended for the addressee named above. Any unauthorized use or interception of this email is illegal. The email message or its attachments may contain confidential or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding the email to the addressee, please notify us immediately via return email and destroy the copy you have received. This message (including any attachments) contains information intended for a specific individual(s) and purpose that may be privileged, confidential or otherwise protected from disclosure pursuant to applicable law. Any inappropriate use, distribution or copying of the message is strictly prohibited and may subject you to criminal or civil penalty. If you have received this transmission in error, please reply to the sender indicating this error and delete the transmission from your system immediately. This message (including any attachments) contains information intended for a specific individual(s) and purpose that may be privileged, confidential or otherwise protected from disclosure pursuant to applicable law. Any inappropriate use, distribution or copying of the message is strictly prohibited and may subject you to criminal or civil penalty. If you have received this transmission in error, please reply to the sender indicating this error and delete the transmission from your system immediately. 6 EXHIBIT B Villalpando, Meghan From: Chris Berg Sent: Monday, November 7, 2022 2:48 PM To: Don Lawson Cc: Scott Cooper Subject: FW: Meeting Agenda (proposed) and Preview Info Don‐ Checking in to see if there are any updates on open items from your end? Chris Begin forwarded message: From: Scott Cooper Date: November 4, 2022 at 8:52:36 AM EDT To: Don Lawson , Tobin Chapman Cc: Robert Rogers Subject: Re: Meeting Agenda (proposed) and Preview Info Don/Robert, thks for mtg here are the actions/notes I took, pls add / edit: Topics: 1. Inventory transfers 1. AA to send invoice detail for both 1‐2 from Don's email and OMX will work to clear up (Majority 3105 ~800K lbs 583K invoiced and 307K to be invoiced that is in the wrong account within PCM) ‐ DD 2. OMX/AA to continue to work on clean‐up of inventory at PCM to ensure it is in the right account OMX or AA ‐ RR/TC 2. Release schedule 1. OMX will develop a schedule for all non Wynco 4017 material ‐ TC 2. All Wynco material will remain on hold until resolution 3. AP balance 1. OMX we will continue to pay cleared invoices on a weekly basis ‐ OMX 2. AP balance will continue to be inflated due to outstanding debit memo for bad quality Wynco 4017material previous paid by OMX 4. Quality issues 1. ~6.6m lbs of 4017 from Wynco valued at ~$20m 2. OMX re‐iterate point that we did not approve Wynco mill, the material received from Wynco has significantly different properties from material tested/approved from Chalco/Teknik and is not fit for purpose. 3. OMX requested AA do Heat lot analysis on Wynco EEP material to ensure mechanical properties are in line with those tested/approved from Chalco/Teknik ‐ RR OMX offered weekly f/up meeting to continue discussion, AA to review actions and circle back on next steps 1 Thanks, Scott Cooper C: 512.739.7818 From: Don Lawson Date: Thursday, November 3, 2022 at 2:34 PM To: Scott Cooper , Tobin Chapman Cc: Chris Berg , Robert Rogers Subject: Meeting Agenda (proposed) and Preview Info ***CAUTION: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.*** Scott & Tobin, Look forward to speaking with you both soon. Proposed Agenda: 1. Accounting “true‐up” on Inventory 2. Release Schedule Conformance and Next Steps 3. Past Due AR – total now $4.2 million after today’s payment applied (see attachment) 4. Specialty – 3015 & 4017 plan Below is some reference material that we would like to discuss as part of the meeting. This ties to items 1 & 2 above. Inventory Mismatch: The first scenario is a set of 9 invoices that are still being reported by PCM as residing in AAM inventory at PCM‐GF. 1. These were invoiced by AAM in early June 2022. 2. Invoices total 483,000 pounds 3. 81% (7 of 9 invoices) are 3105 alloy material 4. AAM has sent several requests to PCM to move these to Omnimax inventory 5. AAM is told by PCM that they have instructions not to move the inventory. 1. This product should be transferred to Omnimax inventory in CoilZone. The second scenario involves product that is clearly in Omnimax’s inventory now, but AAM has failed to invoice. 1. The total is 307,000 pounds 2. 33% is 3105 alloy, the balance is 4017 3. This product is already in Omnimax’s possession 2. AAM will invoice this product to square up the books The “Hold for Release” Plan (June 8, 2022) 2 Don Lawson | CFO (321) 250‐1467 / (407) 377‐0246 ext. 134 | (678) 492‐5407 don.lawson@aametals.com | https://www.aametals.com 11616 Landstar Blvd. Orlando, FL 32824 This email is intended for the addressee named above. Any unauthorized use or interception of this email is illegal. The email message or its attachments may contain confidential or privileged information and may not be copied, forwarded or disclosed to any unauthorized person. If you are not the named addressee, or person responsible for forwarding the email to the addressee, please notify us immediately via return email and destroy the copy you have received. 3 EXHIBIT C i i-l{-i i*_. }\.,V t .}f l i(:f-.} {}; mf,Ah.| h4 ITCHELL* ps-$-r ?463 Conroy Windermere Road 'l'el. 40'1.601.6941 Suite A. Irax. 407.601.5982 Orlando, Florida" 32835 :r"rvs:,r#"k*vjgai;r,_c_p-ur November 16,2022 VIA MAIL YIA EMAIL OmniMax Attn: Clris Berg 30 Technology Pkwy Suite 600 GA 3A092 Peachtree Corners, gi:*rgig*tlruu::$x"s*$1 Re: Our Client: AA Metals,Inc Our File No. 22099 NOTICE OF BRAACH / DEMAND FOR PAYMENT Dear Mr. Berg, This firm has been retained by AA Metals, Inc, ("AAM") in relation to several issues arising from a series of contracts OnrniMax enteretl into with AAM for the purchase and sale of aluminum product. (See the attrached schedule of related OrnniMax purchase orders and AAM sales orders)' Kindly direct all future correspondence concerning the matters addressed herein to the undersigned attorney. A) Background Primarily in late Q -}AZI and early Q1-2022, OmniMax submitted various purchase orders for both 105 and 4017 alloy aluminum products for its Consumer and Specialty / RV 3 divisions' In light of availability issues related to high Sent: Friday, December 30, 2022 10:11 AM To: John C. Wayne; Chris Berg; Don Lawson Subject: AA Metals---Omnimax visit Summary ***CAUTION: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.*** Dear John, It was good meeting you last week. The following summarizes what we discussed and agreed: 1. Omnimax will take all Consumer division products (Wynco and Non‐Wynco) tota