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Filing # 185916278 E-Filed 11/10/2023 03:18:46 PM.
IN THE CIRCUIT COURT OF THE
EIGHTEENTH JUDICIAL CIRCUIT IN AND
FOR SEMINOLE COUNTY, FLORIDA
CASE NO: 2019-CA-000787
RCBA NUTRACEUTICALS, LLC d/b/a
RONNIE COLEMAN SIGNATURE
SERIES,
Plaintiff,
vs.
WESTERN PACKAGING, INC., and
POLYFIRST PACKAGING, INC.,
Defendants.
PLAINTIFF’S RESPONSE TO DEFENDANT WESTERN
PACKAGING IN‘ ”S MOTION FOR PARTIAL SUMMARY JUDGMENT
REGARDING COUNTS If, IIL, IV, V, VIEL AND XIV
Plaintiff RCBA Nutraceuticals, LLC d/b/a Ronnie Coleman Signature Series (“Plaintiff”
and “RCBA”), by its attorneys and pursuant to Rule 1.510, files its Response to Defendant,
Western Packaging, Inc.’s (“Western”) Motion for Partial Summary Judgment Regarding Counts
II (breach of implied warranty), III (fraud), IV (negligent misrepresentation), V (FDUPTA),! VIII
(breach of implied warranty of merchantability), and XIV (civil conspiracy) (D.N. 994)
(“Motion”).
Because genuine issues of material fact exist concerning the facts, evidence, and
allegations as to Counts Il, III, IV, V, VII and XIV, Western’s Motion flounders, devoid of any
merit, RCBA therefore respectfully requests that the Court deny Western’s Motion, allowing a
jury to fulfill its rightful role in adjudicating these contested claims. In further support, Plaintiff
states.
‘The Florida Deceptive and Unfair Trade Practices Act, § 501.201-.213, Fla. Stat (‘FDUPTA”).
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CASE NO. 2019-CA-000787
I SUMMARY
OF THE ARGUMENT
Western’s Motion attempts to summarily dispose of Counts II, lil, 1V, V, VIII, and XIV
(collectively “Counts”), as alleged in Plaintiff's Third Amended Complaint, in what can be broken
up as four arguments:
. First, Western asserts that Count III (fraud) and Count IV (negligent misrepresentation)
should be summarily dismissed because “Plaintiff cannot recover in tort for a contract
dispute unless the tort is independent of any breach of contract.” See Motion at 1.
Second, Western contends that Plaintiff's FDUPTA claim is barred because it is grounded
on violations of the contracts rather than unfair and deceptive acts. See Motion at 10-11
Third, Western claims that Counts II] (fraud) and IV (negligent misrepresentation) must be
summarily dismissed because “the alleged material statements are not misstatements of
fact, but puffery or opinion” and because Plaintiff purportedly did not rely on such
statements. See Motion at 1.
Finally, Western argues that Count II (breach of implied warranty of merchantability) and
Count VII (common law breach of warranty) should be summarily dismissed because the
UCC has displaced common law warranty claims, See Motion at 1.
Regrettably for Western, each of the four arguments presented is devoid of merit and must be
rejected by this Court.
A. Western’s Renewed Attempt to Invoke the Economic Loss Doctrine Fails Once Again.
Western's initial contention invites this Court to revisit its previous rejection of Polyfirst’s
Motion for Partial Summary Judgment concerning the economic loss rule—a motion Western had
joined. Despite the passage of time, neither Florida law nor the case's facts have changed since
2 See DN. 669.
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CASE NO. 2019-CA-000787
the Court entered its Order denying Western's Motion. Western's Motion, albeit referencing
different case law, essentially repackages the same principles of the economic loss rule without
overtly naming it.
Specifically, Western asserts that Plaintiff's fraud and negligent misrepresentations are
barred because such torts are not independent from Plaintiff's breach of contract claim. Yet, this
Court is well-versed from prior briefings and arguments that the economic loss rule in Florida does
not extend to pre-contractual torts such as fraud in the inducement. This holds true even after the
Florida Supreme Court’s decision in Tiara because Florida courts continue to recognize the
independent tort doctrine in cases involving concurrent tort and contract claims, Furthermore,
under Florida law, it is well-established that misrepresentations made about existing facts before
a contract is formed constitute fraud.
Here, the record is densely populated with instances of Western's pre-contractual
misrepresentations about its current situation—specifically, its claims of having manufacturing
capabilities and extensive experience in producing zipper pouch bags. Thus, Western’s thinly
veiled effort to resurrect the economic loss rule is, as a matter of law, unsuccessful and must be
denied by this Court.
B. Western's Attempt to Summarily Dismiss Plaintiff's FDUPTA Claim is Predicated on
Misrepresentations Regarding Plaintiff's Complaint and the Record Evidence.
Western also contends that Plaintiff's FDUPTA claim fails because it only relies on
violations of the contract rather than acts that constitute unfair or deceptive trade practices.
Specifically, Western maintains that Plaintiff relies not on the misrepresentations, but the breach
of contract as the groundwork for the FDUPTA claim.
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CASE NO. 2019-CA-000787
Western's argument is not only insincere but also easily refutable. Plaintiff's Complaint
distinctly asserts that the contracts with Western for the production of zipper pouch bags were
predicated on Western’s pre-contractual false advertising and representations about its
manufacturing prowess and experience. The record evidence substantiates that Western engaged
in false representations and omissions concerning current circumstances and proceeded with unfair
and deceptive trade practices post-contract execution, With the Plaintiffs FDUPTA claim both
appropriately pled and corroborated by evidence on record, Western's Motion is untenable and
should be denied.
c. Genuine Issues of Material Fact Exist as to Western’s Claim That the Fraudulent
Misrepresentations Constituted Mere Puffery and Opinion and That Plaintiff
Did Not
Rely Upon Western’s Misrepresentations.
‘Western’s Motion improperly seeks that the Court act as the jury by finding that Westemn’s
misrepresentations were simply “puffery” or “opinion,” and that Plaintiff did not rely on such
mistepresentations. However, Florida Courts have routinely emphasized that the issue of fraud is
not a proper subject of a summary judgment, Despite this precedent, Western attempts to once
again misrepresent the record evidence and invites the Court to commit reversible error.
As will be elaborated infra, there is substantial evidence in the record that Western
misrepresented material facts regarding its present circumstances. This includes false claims about
possessing a manufacturing facility, extensive experience in producing zipper pouch bags, and its
roster of clients, among other fabrications. Likewise, the evidence in the record robustly supports
that the Plaintiff relied on Western's misrepresentations in deciding to enter into contracts with
Western. Therefore, it is evident that Western is essentially requesting the Court to disregard the
record and do precisely what Florida courts have consistently cautioned against—summarily
dismissing a claim for fraud. This Court must refuse Western's proposition and deny the Motion.
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CASE NO. 2019-CA-000787
D. The UCC Does Not Supplant Plaintiff's Claim for Common Law Warranty Claims
and Thus Western’s Motion Must be Denied.
Western’s final argument rests on its unsupported proposition that the UCC has completely
displaced common law warranty claims. Despite not citing a single Florida appellate decision
supporting this proposition, Western seeks that the Court summarily dismiss Plaintiff's claims for
breach of implied warranty (Count II) and common law breach of warranty (Count VIII). However,
as set forth infra, common law breach of warranty claims are still viable in Florida, Accordingly,
Western’s Motion must be denied.
i. STATEMENT OF UNDISPUTED FACTS
A. Allegations in Plaintiff's Third Amended Complaint.
1 On April 8, 2021, Plaintiff's Third Amended Complaint (“Complaint”) against
Defendants Polyfirst, Western and ProAmpac Holdings, Inc. (“ProAmpac”) was adopted as the
operative pleading in the litigation.’ The Complaint is attached for the Court's convenience as
Exhibit A.
2. Relevant here, the Complaint alleges the following counts against Western:
Count II — Breach of Implied Warranty)
Count II — Fraud
Count IV — Negligent Misrepresentation
Count V - FDUPTA.
Count VIII — Breach of Implied Warranty of Merchantability
Count XIV ~ Civil Conspiracy
See Ex. A.
> See this Court’s April 8, 2021, Order (D.N. 178) granting Plaintif?’s Motion for Leave to file Third Amended
Complaint (D.N. 143) and deeming Plaintiff's Third Amended Complaint as filed.
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CASE NO. 2019-CA-000787
3. Plaintiff's Complaint outlines a calculated, systematic, and premediated scheme
between Western and Polyfirst to fraudulently induce Plaintiff to enter into contracts with
Defendant Western for the manufacturing and sale of the zipper pouch bags at issue in this lawsuit.
See Compl. 4 13-28.
4. Specifically, in part through their common ownership and business arrangements,
the Defendants agreed—prior to Western ever contracting with Plaintiff—to induce Plaintiffto
contract with Western by making intentional fraudulent misrepresentations regarding Westem’s
capabilities and experience manufacturing flexible packaging. See Compl. $4] 13-16.
5. Relying on the intentional, fraudulent, and false misstatements made by Western
on behalf of itself and Polyfirst, Plaintiff contracted with Western for the manufacturing of
Plaintiff's Defective Pouches (having been led to believe that Western would be the manufacturer).
Western knew the Defective Pouches were to contain Plaintiff's number-one selling nutraceutical
protein supplements, and that they would be shipped across the country and internationally. See
generally, id.
6. ‘The Defendants knew but kept hidden from Plaintiff that Polyfirst was the true
‘manufacturer of the flexible packaging. Yet, Polyfirst itself had little-to-no experience in making
flexible packaging, and it had no experience manufacturing custom zipper bag pouches that
Plaintiff ordered from Western. See generally, id.
7 In accordance with the initial conspiracy to defraud, after Western fraudulently
induced Plaintiff to lie with Western on a bed of lies on behalf of both Defendants, Polyfirst
manufactured the Defective Pouches and shipped them “blind” at Westem’s request to Plaintiff's
protein supplement packers for distribution around the country and the world. See generally, id.
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CASE NO. 2019-CA-000787
The Complaint’s specific allegations make clear that:
a. Western never had any manufacturing capabilities—whatsoever. See
Compl.,$4] 13-17, 19-21, 23, 40-45.
Western and Polyfirst, through common ownership and specific business
arrangements, agreed that Westem would intentionally and falsely
misrepresent its own manufacturing capabilities and experience to secure
customers whose flexible packaging needs would be outsourced to Polyfirst
without the customers’ knowledge. See Compl., f] 13-17, 19-21, 23, 115—
124,
Western did intentionally make false, fraudulent, material misstatements,
on behalf of the Western and Polyfirst, to induce Plaintiffto contract with
Western for the manufacturing of the Defective Pouches. See Compl, $]
13-17, 23, 115.
Western and Polyfirst knew they did not have the capability to
manufacture Plaintiff's Defective Pouches before, during, and after
Western began to negotiate with Plaintiff. See Compl., § 13-17, 19-21,
23, 115-124.
‘Western’s material, false statements about their own manufacturing
capabilities actually did induce Plaintiff to contract with Western for
the manufacturing of the Defective Pouches. See Compl., {¥ 13-17, 19~
21, 23, 115-124.
The Defendants’ agreement/conspiracy to defraud (and the actual
defrauding of Plaintiff) occurred prior to Polyfirst’s manufacturing of
the Defective Pouches. See Compl., {¥ 13-17, 19-21, 23, 115-124.
Subsequently, Polyfirst knowingly manufactured structurally unsound
Defective Pouches, before and after it was purchased by ProAmpac on.
September 1, 2017. See Compl., 4] 24-27, 115-124.
The Defective Pouches burst, exploded, and caused the protein supplements
within to leak out and destroy Plaintiff's Products. See Compl., {¥] 24-27,
115-124.
The Defendant's initial Conspiracy to Defraud, and Polyfirst’s subsequent,
separate act of manufacturing the Defective Pouches (a) threatened entire
Plaintiff's business; (b) caused Plaintiff imeparable economic harm; and (c)
destroyed Plaintiff's goodwill and business reputation. See Compl., $f] 28,
115-124.
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CASE NO. 2019-CA-000787
B. The Court Has Already Denied Western’s Prior Motion for Partial Summary Judgment
Based on the Economic Loss Rule.
9. On August 2, 2022, Polyfirst filed its Motion for Partial Summary Judgment
Regarding Counts I and XIV (Economic Loss Rule) (D.N. 617) arguing that the economic loss
doctrine barred Plaintiff's claim for civil conspiracy (Count XIV).4
10. On August 22, 2022, Western filed its Notice of Joinder in Polyfirst’s Motion for
Partial Summary Judgment Regarding Economic Loss Rule (D.N. 669).
i. On November 22, 2022, following a hearing, the Court entered an Order (“Order”)
(DN. 784) denying Polyfirst and Western’s Motion for Partial Summary Judgment as to the
economic loss rule (D.N. 617). A copy of the November 22, 2022, Order is attached as Exhibit B
and incorporated by reference.
12, In the Order, the Court specifically ruled that;
«+ aS a matter of law... count XIV survived Defendants’ Motion because, as the
Court detailed in Section 1 supra, Plaintiff's allegations regarding Defendants”
conduct in support of the tort claims are separate and distinct from the allegations
that support the Plaintiff's claims in contract. Namely because Plaintiff alleged that
Western, on behalf of all the Defendants, intentionally made fraudulent
misrepresentations to Plaintiff—statements that pre-date any contract formation
that were made to induce Plaintiff into contracting with the Defendants, the torts
are independent, thus they survive the economic loss rule’s application.
See Ex. B, at 13-14. The Court correctly relied upon “post Tiara cases that continue to cite to pre~
Tiara authority from Florida’s Supreme Court and DCA’s for the continued existence of the
independent tort doctrine.” See Ex. D., at 12-13.
“On September 13, 2022, Plaintiff filed its Response to Polyfirst’s Motion for Partial Summary Judgment Regarding
Counts I and XIV (Economic Loss Rule) (D.N. 688) which is incorporated herein by reference.
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CASE NO. 2019-CA-000787
c. Evidence in the Record of Pre-Contract Acts and Omissions to Support Plaintiff's Claim
for Civil Conspiracy to Defraud.
13. On June 2, 2022, Mr. Ahern submitted a declaration under oath dated June 1, 2022
(“Declaration”), in support of Plaintiff's June 2022 Motion for Leave to Add Claim for Punitive
Damages Against Defendant Western & Polyfirst (D.N. 478). A copy of Mr. Ahern’s Declaration
dated June 1, 2022, is attached as Exhibit C.
14. In the Declaration, Mr. Ahern specifically details that:
In 2016, Mr. Slapa invited me and Adam Cannon, RCBA’s Vice President of
Operations, to an office and warehouse in Grand Prairie, Texas where Western's
purported manufacturing plant was being moved to and gave me a tour of same.
Mr. Slapa told me and Mr. Cannon that it was at this facility in Grand Prairie, Texas
where the Ronnie Coleman Pouches would be made “in house” at Western’s
forthcoming “state of the art” manufacturing plant.
In that visit, he said Western would easily manufacture the Ronnie Coleman
Pouches for Plaintiff's Products, and that Western had extensive experience and
expertise in making the same type of pouch bags, among other things.
See Ex. C, (9 15-18.
15. Mr. Ahern further states under oath that Mr. Slapa sent him zipper pouch bags of
product Western had purportedly manufactured:
Mr. Slapa sent Mr. Cannon and myself his business card and a folder of pouches
that were representative of work pouches he said Western made. I have attached a
copy of the folder he sent me, which is marked as Exhibit 4.
Inthe folder, there are 7 pouches for various sports nutrition companies. The yellow
colored one for “ISO-CARB"” is a 2.4-pound pouch for one of our competitors, Man
Sports. The website and the marketing materials were impressive to me, and many
of them literally have the Western logo and the phrase “Custom Pouches.” These
materials, like Mr. Slapa’s verbal representations, portrayed Western as a
manufacturer of such products,
See Ex. C, 9 21-22.
5 PlaintifP’s June 2022 Motion for Leave to Add Claim for Punitive Damages Against Defendant Western & Poly first
(D.N. 478) and the exhibits attached thereto are incorporated herein by reference.
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CASE NO. 2019-CA-000787
16. On July 10, 2023, Defendants took the deposition of Plaintiff's Corporate
Representative, Brendan Ahem. A copy of the deposition transcript of Plaintiff's Corporate
Representative’s July 10, 2023, deposition is attached as Exhibit D.
17. At the deposition, Mr. Ahern testified that prior to contracting with Western,
Western's President, Vince Slapa, had represented that Western had a plant in the United States
that was capable of manufacturing the Zipper Bags for Plaintiff. See Plf.’s Corp. Rep. Dep., Ex.
D, 396: 11-24; 397; 13-16,; 410: 16-23.
18. Mr. Ahern also testified that prior to contracting with Western to manufacture the
Zipper Bags, Plaintiff had accessed Western’s website, which showed a video of Western’s
manufacturing plant. See PIf.’s Corp. Rep. Dep., Ex. D, 393: 13-22; 394: 6-13; see also Ex. C,
20.
19, On April 6, 2022, Plaintiff's Chief Operating Officer, Adam Cannon, sat for
deposition. A copy of the deposition transcript of Mr. Cannon’s April 6, 2022, deposition is
attached as Exhibit E. At his deposition, Mr. Cannon testified that during his initial call with
Western’s President, Vince Slapa, on October 26, 2016, Mr. Slapa represented that Western was
capable of manufacturing the Zipper Bags at Western’s own facilities using Western's equipment.
See Cannon Dep., Ex. E, 60: 6-8, 13-22; 61: 9-25; 62: 13-17; 63: 4-9.
20. ‘Mr. Cannon further testified that immediately following that conversation, and
prior to contracting for the Zipper Pouches, Western sent Plaintiff a portfolio of samples that
Western had purportedly manufactured. See Cannon Dep., Ex. E, 76: 18-25; 77: 1-13.
21. Pursuant to Mr. Cannon’s testimony, “one of the pouches actually had a picture of
[Western’s] equipment on the back of it.” See Cannon Dep., Ex. E, 77: 14-19. Indeed, one of the
promotional materials sent by Western specifically stated that Western was “specializing in
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CASE NO. 2019-CA-000787
extruding, printing, laminating and custom pouching for all of your packaging needs!” and set
forth Western’s Texas address under the banner “Made in the USA.”
siusecceenteen
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The portfolio and materials included therein sentby Western to Plaintiff
are attached as Composite
Exhibit F.
22, The portfolio also included several labels, shrink sleeves and pouches that Western
had purportedly made, See Cannon Dep., Ex. E, 76: 18-25; 77: 1-13; Comp. Ex. F. However, as
admitted by Western’s Corporate Representative, Vince Slapa, at his deposition on November 30,
2022, none of the samples were or had ever been customers of Western and Western had never
manufactured the purported samples. See Western’s Corp. Rep. Dep., 58: 10-20, a copy of which
is attached as Ext G.
23. Mr. Cannon further testified that the other samples of zipper bags and other
packaging sent by Westen to Plaintiff were physical proofof what Western had made in the past.
See Cannon Dep., Ex. E, 78: 17-21. Mr. Cannon specifically stated that he relied upon the
representations and samples showing that Western had manufacturing capabilities and experience
when RCBA chose to contract with Western. See Cannon Dep., Ex. E, 77: 12-13.
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CASE NO. 2019-CA-000787
24. During this lawsuit, Western also produced emails sent by Western's Sales
Coordinator, Xavier Marquez, where Mr. Marquez was advertising to potential customers by
falsely representing to customers that Western currently manufactures stand up pouches including
those for MAN Sports, Ronnie Coleman and RSP:
Jeremy,
‘Tiss Raver with Western Packaging i Dal "reaching out zo you in regards
tothe poses that
you guysuse for you products. We specialize NGITAL packaging which means there arero plate
charges, and minima quartiy order alow a ‘We eurrenty manuTactue the pouches/bags for
[MAN Sports, Ransie Colemas and RSP, loveto send you tome samples ane earn the opportunityto
work with you as wall Feal free ta contact me for quick chat and 2 mailing address andl shoot some
samples ove to you her in the eae future! Thanks, and have a good day!
With sincere regards,
Xavier Marque:
Inside Sales Coordinator
smarqueznesternpkg .com
Gus wwesternpkg..com
WESTERN PACKAGING & Nutraceuticals "Maxing Fiexinle Pack: ra
Flaxible’
1041 avenue
Grand Prairie, 1% 5080
A copy of Western's advertising emails, Bates Nos. RCBA00000450, RCBA00000760, and
RCBA00000814; and are attached as Composite Exhibit H.
25. Even though Western has absolutely no manufacturing capabilities, it had been
fraudulently advertising that it was “proud to be focusing on Lean Manufacturing” on its website.
‘A copy of The Internet Archive's affidavit authenticating Western’s website in 2016, as well as
Western’s website pages are attached hereto as Exhibit I.
26. In fact, on every page of its website, Wester embedded a video that brought
potential customers through a virtual tour, showing Western’s purported manufacturing warehouse
and machinery that did not exist at the Western Packaging location:®
* See https:/iwww. youtube,com/watehv=IvOavHzonDE,
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CASE NO. 2019-CA-000787
‘Western Packaging Inc.
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See Ex.
27. Similarly, on December 9, 2022, Polyfirst’s Corporate Representative, Ryan
Fischer, testified that the “Virtual Tour” video was the “Polyfirst manufacturing plant.” See Mr.
Fischer’s December 9, 2022, Depo. Transcript, 209: 13-15, a copy of which is attached as Exhibit
J.
28. Polyfirst’s Corporate Representative further testified that Polyfirst knew that
Western was using the “Virtual Tour” video on Western’s website. See Polyfirst’s Corp. Rep.
Dep., Ex. J, 203: 9-12.
29. Knowing full well that it had no manufacturing machinery or capabi es,
Western lured potential customers, such as RCBA, by falsely claiming on its website that it had a
“great staffof laborers and the machines it takes to assemble your product at the highest standard
of your exact specification.” See Ex. I.
30. Western even went as far as to describe the manufacturing process and the
techniques used in the making of flexible packaging. It explained on its “FAQ's” page that they —
Western Packaging — could “provide turnkey goods,” and that it had a “unique labeling system.”
See Ex. 1.
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CASE NO. 2019-CA-000787
31. Western even had a page dedicated to its “Unique Packaging” of Pouch Bags.
Westemn’s description of its pouching process began: “pouches are manufactured on top-of-the-
line machinery.” See Ex. I.
32. Western also distributed business cards to RCBA and other customers that also
represented its manufacturing capabilities and reflected a Hartford, Wisconsin location:
a
Vince Slapa
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See Comp. Ex. F.
D. Evidence in the Record of Polyfirst and Western’s Civil Conspiracy to Defraud Plaintiff
as Evidenced by Common Ownership and False Advertising.
33. ‘As discussed above, Western represented that it had certain manufacturing
capabilities to attract customers, only to outsource all of their packaging needs to Polyfirst after
securing new clients.
34. As of July 2017, Western was a “distributorship owned 75% by the three current
owners of Polyfirst” who had entered into a “right of first refusal” contract with Polyfirst, under
which Polyfirst would manufacture flexible packaging opportunities:
Western Packaging sa distributorship owned 75% by the3 current ownersof Potyfirst
‘Theremaining 25% is owned by Vince Slapa - who is acting as the General Manager.
Standard operating procedure with Western -if they'vegot an opportunityfor
flexible packaging -they first quoteitout to Polyfirst. fwecan makeit at theright
right priceand in the right timeframe -Polyfirst gets the business. Ifnot, they go elsewhere
They donot get special pricing. All transactions with them are at “Arms Length”
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CASE NO. 2019-CA-000787
See ProAmpac’s production of documents Bates No. ProAmpac 1397 which is attached as Exhibit
K.
35. Defendants Western and Polyfirst were unquestionably involved in a common
conspiracy to deceive customers just like Plaintiff — a conspiracy evidenced by the common
ownership between Westem and Polyfirst, and even Western's employees signing their emails
with both Western and Polyfirst’s names. See Western's production of documents Bates No.
RCBA00000856 which is attached as Exhibit L.
36. Polyfirst even allowed Western to use its address for Western's UPS account in
order to ship products from the Polyfirst warehouse to customers without showing any Polyfirst
markings. See Western’s production of documents Bates No. RCBA00000542 which is attached
as Exhibit M.
37. Polyfirst and Western were sharing the profits from deceiving unbeknown
customers such as Plaintiff as well as other customers such as VPG who also had similar leaking
issues with zipper bags as described by Mr. Slapa in an email to the owners of Polyfirst at the
time King Coles and Andy Garni. See Polyfirst’s production of documents Bates No. 0002722
which is attached as Exhibit N.
E. Evidence in the Record of Western and Polyfirst Intentionally Concealing Their
Fraudulent Scheme and Defrauding Plaintiff.
38. Once Western fraudulently induced RCBA to enter into the contracts for the
manufacturing of the zipper bags, Wester requested that Polyfirst “SHIP BLIND NO
MARKINGS" in order to conceal that Polyfirst was in fact manufacturing the pouches:
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CASE NO. 2019-CA-000787
1020 x17+5.5 BG SUP w/zipper & tear Notch,48G
IPET,Reverse Print & Laminate to METPET, Laminate to
lomil LLDPE
[King Whey Chocolate Brownie 10Ib
SHIP BLIND NO MARKINGS
(Contact maryelwood@westrnpkg.com for packing slip
Bill Of Lading
DO NOT DOUBLE STACK DO NOT DOUBLE STACK
3 EMER aT
S
7
BurESrERY
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See Purchase Orders and Bills of Lading attached as Composite Exhibit O. Polyfirst and Western
would also alter Bills of Lading to further conceal from Plaintiff that Western was not
manufacturing the Zipper Pouches by replacing Polyfirst with Western’s name all while leaving
Polyfirst’s address. See Comp. Ex. O.
39. Notably, it is undisputed at this point that Western does not have any facilities in
Hartford, Wisconsin as admitted by Western’s Corporate Representative. See Western’s Corp.
Rep. Dep., Ex. G, 58: 10-20. That is, however, the principal place of business of Polyfirst. See
Polyfirst’s Corp. Rep. Dep., Ex.J, 120: 2-9.
40. On April 14, 2023, Plaintiff took the continued deposition of Polyfirst’s Corporate
Representative, Ryan Fischer. A copy of the deposition transcript of Polyfirst’s Corporate
Representative’s taken on April 14, 2023, is attached as Exhibit P. At the deposition, Polyfirst’s
Corporate Representative testified that this was part of the arrangement between Polyfirst and
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CASE NO. 2019-CA-000787
Western to ship customer to end products without any markings. See Polyfirst’s Corp. Rep. Dep.,
Ex. P, 423: 10-19; 434: 3-14.
41. Given Polyfirst and Western’s lack of experience and capabilities, Polyfirst
instructed Western on how to “limit [Western and Polyfirst’s] collective liability in terms of the
strength of these pouch
Fon: Curtis Vorkey
jesday, January 20, 2017 10:47 AM
To: ince Slapa
Subject: RC Pouches
‘Good Morning Vinee:
Pertaining to your RC pouches that will be holding a product which will weigh between 10-15 pounds of
fine powder; | believe it would behoove nat only PolyFirst, but Wester as well, te timit aur collective
liability in terms of the strength of these pouches. Regardless of the strength of these pouches at some
-Bcint in ther life cycle there will bea host or leak at some point if dropped a few times or improperly
handled | would lke to define what constitutes a pouch that is “strong enough” to meet your elfent’s
needs. We propose filing the pouches to the designated weight and doing = crop-test from 3 feet on 3
sides ofthe pouch (bottom/left/right). Hf there are no leaks after these three drops then we would
consider this pouch “good. Tals would be performed at the start of the converting process. Ifthe
‘pouches do not pass this test then we would define to your client where the failure is and they woul
need ta approve it.
‘Would you please elther raply with an agreement from yourselfor your client?
See email from Curtis Yorkey, of Polyfirst, to Vince Slapa dated January 10, 2017, marked as
RCBA00000151 attached as Exhibit Q.
42. The collective owners of the Western and Polyfirst - King P. Coles II, Andrew
Gari, and Matthew A. Garni — controlled the conspiracy from behind-the-scenes. When
Polyfirst’s mishaps and outsourcing caused major delays in RCBA’s shipment, Mr. Slapa of
Wester pleaded with Mr. Coles to help move production along at Polyfirst:
17
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CASE NO. 2019-CA-000787
From: Vince Slapa
Sent Fide, January 13, 2017 239 PM
Tos King Coes
Ce: Ancy
Subject: FA Upes?
King, can you help
us here.
The customer expected the pouches on 12/32 [not saying its Pelyfists fault) we need some help getting,
them canverted from Valley PRG ASAP.
Furthermore, the customer is coming te Dallas next Fridayto meet with us.
See Western's Production of Documents, Bates No. RCBA00000153 attached as Exhibit R.
F. Evidence in the Record that Defendants Western and Polyfirst, With Reckless
Disregard for Plaintiff's Business, Knew of the High Risk of Failure and Failed to
Disclose Same to Plaintiff.
43. At the time that RCBA placed the orders with Western, Polyfirst and Western knew
that they did not have the experience or the capabilities to manufacture the Zipper Pouches:
ian
Soe eterunenasuesegegcnn
—
a Reseda penne Pe
va ~ i
roe
evecare
where
Coenen
‘Se trae amie8 ik
reset ie oi i ah dr
ses in epee
See Polyfirst’s production of documents Bates Stamped Poly0000618 which is attached hereto as
Exhibit S.
44, More significantly, Polyfirst and Western knew that they were playing a “game of
chance” with the manufacturing of the Zipper Pouches for Plaintiff's products. Yet demonstrating
their fraud, Defendants disregarded all the potential consequences and hid same from Plaintiff:
18
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CASE NO. 2019-CA-000787
Troms Ryan oder
‘Sent: Wednesday, Noverber 16,2016 4:39 PH
“os Steve Randaz29
‘08 Bander
‘Subject: RE: RSP Viney poten pouches:
6 & 10.8
Sree, the outer materi PEED Jaume we have this quoted at ure al ickase i actually
_areaor han thy existing ph But Cony about rigid, The more eo
cerns of igidity
ie sacs athe nh ay
Also, this project makes me nervous in anielar bocause protein powder pouches this large behaveno
sdteeatytagn liquid. Since we dart west ou lnuiations fr boudsteupth we are playing game of chasce in
tars oF successfilue
See Ex. S.
45, Polyfirst and Western employees revealed that they did not properly test the
pouches prior to mass production, and that even after the pouches began to burst, they still did not
have the capabilities on how to resolve the consistent failures:
.
From: Fischer, Ryan
Sent: Thursday, March 28, 2018 452103 P
Tor Vince Slap
randee'er, Josh; Yorkey, Curtis; Randarzo, Steve: Corey, Dave: Brant, Arey
Subject: Re: GAINER-X5 Bags
pRongauU0e
Sour, should Have read his eal ite clser.implving shat they ae busting on filling. 500g metpet wil dtnitaly
hel
Copying Dave & Andy. raily should have a burst tes for this but wr don’ have that testing equlpment. Kt might be
prudent:get this setup en the machine and send samples cifa the lab fr validation pir to peducing
See Western’s production of documents Bates No. WESTERN004559 which is attached hereto as
Exhibit T.
G. Evidence in the Record that Defendants Western and Polyfirst’s Civil Conspiracy to
Defraud Caused Plaintiff Significant Damages.
46, From April 2018 until present date, Plaintiff has been bombarded or faced with
complaints about defects in the Defective Pouches from customers and distributors. See Ex. C, {7-
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CASE NO. 2019-CA-000787
14, The Defective Pouches were discovered to be defective at over twelve (12) of Plaintiff's major
distributors around the world:
ass a
i
5 ne
iy
=
eS oe i
i ccd
FHyl
rd <9
cE Ht
te
3
a
Pictures of the leaking Zipper Pouches taken by Plaintiff's customers and sent to Plaintiff are
attached as Exhibit U. Among other things, the Defective Pouches were commercially and
structurally unfit, and the plastic edges or seams burst apart causing Plaintiff's Products to leak
and pour out. See Ex. U.
47. After Plaintiff gave notice to Western of the defects in the Defective Pouches,
Western and Polyfirst continued to propagate the fraud:
From vince Sopa casa wereraol
Date: Monday Apri2, 20:8 t 228 9M.
te: ser, Ryan” «fan FscherBroampaccom>, Matsa Suter , "Gallenberget
sora SarahGolleobergerBproampeecom>
(ernyle Coty hee gap.com, ey, Cus" "andrei, Joh os rari poungaccome, Renan, tv!
Sibjec tS aes
EXTERNAL: Ts ema orinated fom ousite of rok
far, ks god en per however, the co packeres theseup nara Mors acta Bk. They want jst
‘one fave. in Gti, we are sopposedto be he bg expert ard we say we wa totes iw process ey might
get mor concered about us more than they ee aed 2
‘Anpay.to make sample oes? Haha. hd to ask
though
Scere eg,
voce
PresceatStapa
20
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CASE NO. 2019-CA-000787
See Pro’s production of documents Bates Stamped PRO000289 which is attached hereto as
Exhibit V.
48. Western and Polyfirst also worked together to continue their fraudulent conspiracy
by jointly drafting emails to Plaintiff deflecting their role as the cause of the problems with the
Defective Pouches. See Western’s production of documents Bates Stamped 004845, 004858,
004878-79 which are attached hereto as Composite Exhibit W.
49. Asaresult of Western and Polyfirst intentional fraudulent representations regarding
their experience and capabilities as well as their material omissions as to their failures and risks,
Plaintiff's business was crippled. See Ex. C, 7-14. Not only was RCBA’s reputation decimated,
it lost significant sales and profits. To date, Plaintiff has been unable to fully recover from the
results of the Western’s reprehensible conduct. See Ex. C, 4{7-14.
50. Through discovery, Plaintiff has also learned that Western’s misrepresentations
were corroborated by third parties in the industry. Indeed, the president of SW Nutritional, LLC,
Jessie Windrix, a contract manufacturer of dietary supplements, corroborated same at his
deposition on December 6, 2022. A copy of Mr. Windrix’s December 6, 2022, deposition transcript
is attached as ExhibitX. Specifically, Mr. Windrix testified: “I believe Vince represented himself
as the manufacturer.” See Mr. Windrix’s Dep., Ex. W, 178; 1-9.
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CASE NO. 2019-CA-000787
il. LEGAL ARGUMENT
A Legal Standard.
Pursuant to Florida Rule of Civil Procedure 1.510, the Court only grants summary
judgment to a moving party if it “shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510 (emphasis added).
“An issue of fact is ‘material’ if, under the applicable substantive law, it might affect the
outcome of the case.” Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1311 (11th Cir. 2018). “An
issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for
the nonmoving party.” Id. As amended, and effective as of May 1, 2021, “{tJhe summary judgment
standard provided for in” Rule 1.510 “shall be construed and applied in accordance with the federal
summary judgment standard.” See Fla. R. Civ. P. 1.510; see also In re Amends. to Fla, Rule of Civ.
Proc. 1,510, 309 So.3d 192, 194 (Fla. 2020).
The key inquiry on a motion for summary judgment, as noted by the Florida Supreme
Court, is hhether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.” Jd. at 192.
Accordingly, “the burden on the moving party may be discharged by showing—that is, pointing
out to the district court—that there is an absence of evidence to support the nonmoving party's
case.” Id. at 193 (internal quotations omitted),
On the facts concerning the issue of RCBA’s Count X
Preview
Filing # 185916278 E-Filed 11/10/2023 03:18:46 PM. IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR SEMINOLE COUNTY, FLORIDA CASE NO: 2019-CA-000787 RCBA NUTRACEUTICALS, LLC d/b/a RONNIE COLEMAN SIGNATURE SERIES, Plaintiff, vs. WESTERN PACKAGING, INC., and POLYFIRST PACKAGING, INC., Defendants. PLAINTIFF’S RESPONSE TO DEFENDANT WESTERN PACKAGING IN‘ ”S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING COUNTS If, IIL, IV, V, VIEL AND XIV Plaintiff RCBA Nutraceuticals, LLC d/b/a Ronnie Coleman Signature Series (“Plaintiff” and “RCBA”), by its attorneys and pursuant to Rule 1.510, files its Response to Defendant, Western Packaging, Inc.’s (“Western”) Motion for Partial Summary Judgment Regarding Counts II (breach of implied warranty), III (fraud), IV (negligent misrepresentation), V (FDUPTA),! VIII (breach of implied warranty of merchantability), and XIV (civil conspiracy) (D.N. 994) (“Motion”). Because genuine issues of material fact exist concerning the facts, evidence, and allegations as to Counts Il, III, IV, V, VII and XIV, Western’s Motion flounders, devoid of any merit, RCBA therefore respectfully requests that the Court deny Western’s Motion, allowing a jury to fulfill its rightful role in adjudicating these contested claims. In further support, Plaintiff states. ‘The Florida Deceptive and Unfair Trade Practices Act, § 501.201-.213, Fla. Stat (‘FDUPTA”). Clayton Trial Lawyers PLLC | 401 €. Las Olas Blvd, | Suite 1400 | Fort Lauderdate FL | www-ctllawyerscom CASE NO. 2019-CA-000787 I SUMMARY OF THE ARGUMENT Western’s Motion attempts to summarily dispose of Counts II, lil, 1V, V, VIII, and XIV (collectively “Counts”), as alleged in Plaintiff's Third Amended Complaint, in what can be broken up as four arguments: . First, Western asserts that Count III (fraud) and Count IV (negligent misrepresentation) should be summarily dismissed because “Plaintiff cannot recover in tort for a contract dispute unless the tort is independent of any breach of contract.” See Motion at 1. Second, Western contends that Plaintiff's FDUPTA claim is barred because it is grounded on violations of the contracts rather than unfair and deceptive acts. See Motion at 10-11 Third, Western claims that Counts II] (fraud) and IV (negligent misrepresentation) must be summarily dismissed because “the alleged material statements are not misstatements of fact, but puffery or opinion” and because Plaintiff purportedly did not rely on such statements. See Motion at 1. Finally, Western argues that Count II (breach of implied warranty of merchantability) and Count VII (common law breach of warranty) should be summarily dismissed because the UCC has displaced common law warranty claims, See Motion at 1. Regrettably for Western, each of the four arguments presented is devoid of merit and must be rejected by this Court. A. Western’s Renewed Attempt to Invoke the Economic Loss Doctrine Fails Once Again. Western's initial contention invites this Court to revisit its previous rejection of Polyfirst’s Motion for Partial Summary Judgment concerning the economic loss rule—a motion Western had joined. Despite the passage of time, neither Florida law nor the case's facts have changed since 2 See DN. 669. 2 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom, CASE NO. 2019-CA-000787 the Court entered its Order denying Western's Motion. Western's Motion, albeit referencing different case law, essentially repackages the same principles of the economic loss rule without overtly naming it. Specifically, Western asserts that Plaintiff's fraud and negligent misrepresentations are barred because such torts are not independent from Plaintiff's breach of contract claim. Yet, this Court is well-versed from prior briefings and arguments that the economic loss rule in Florida does not extend to pre-contractual torts such as fraud in the inducement. This holds true even after the Florida Supreme Court’s decision in Tiara because Florida courts continue to recognize the independent tort doctrine in cases involving concurrent tort and contract claims, Furthermore, under Florida law, it is well-established that misrepresentations made about existing facts before a contract is formed constitute fraud. Here, the record is densely populated with instances of Western's pre-contractual misrepresentations about its current situation—specifically, its claims of having manufacturing capabilities and extensive experience in producing zipper pouch bags. Thus, Western’s thinly veiled effort to resurrect the economic loss rule is, as a matter of law, unsuccessful and must be denied by this Court. B. Western's Attempt to Summarily Dismiss Plaintiff's FDUPTA Claim is Predicated on Misrepresentations Regarding Plaintiff's Complaint and the Record Evidence. Western also contends that Plaintiff's FDUPTA claim fails because it only relies on violations of the contract rather than acts that constitute unfair or deceptive trade practices. Specifically, Western maintains that Plaintiff relies not on the misrepresentations, but the breach of contract as the groundwork for the FDUPTA claim. 3 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 Western's argument is not only insincere but also easily refutable. Plaintiff's Complaint distinctly asserts that the contracts with Western for the production of zipper pouch bags were predicated on Western’s pre-contractual false advertising and representations about its manufacturing prowess and experience. The record evidence substantiates that Western engaged in false representations and omissions concerning current circumstances and proceeded with unfair and deceptive trade practices post-contract execution, With the Plaintiffs FDUPTA claim both appropriately pled and corroborated by evidence on record, Western's Motion is untenable and should be denied. c. Genuine Issues of Material Fact Exist as to Western’s Claim That the Fraudulent Misrepresentations Constituted Mere Puffery and Opinion and That Plaintiff Did Not Rely Upon Western’s Misrepresentations. ‘Western’s Motion improperly seeks that the Court act as the jury by finding that Westemn’s misrepresentations were simply “puffery” or “opinion,” and that Plaintiff did not rely on such mistepresentations. However, Florida Courts have routinely emphasized that the issue of fraud is not a proper subject of a summary judgment, Despite this precedent, Western attempts to once again misrepresent the record evidence and invites the Court to commit reversible error. As will be elaborated infra, there is substantial evidence in the record that Western misrepresented material facts regarding its present circumstances. This includes false claims about possessing a manufacturing facility, extensive experience in producing zipper pouch bags, and its roster of clients, among other fabrications. Likewise, the evidence in the record robustly supports that the Plaintiff relied on Western's misrepresentations in deciding to enter into contracts with Western. Therefore, it is evident that Western is essentially requesting the Court to disregard the record and do precisely what Florida courts have consistently cautioned against—summarily dismissing a claim for fraud. This Court must refuse Western's proposition and deny the Motion. 4 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 D. The UCC Does Not Supplant Plaintiff's Claim for Common Law Warranty Claims and Thus Western’s Motion Must be Denied. Western’s final argument rests on its unsupported proposition that the UCC has completely displaced common law warranty claims. Despite not citing a single Florida appellate decision supporting this proposition, Western seeks that the Court summarily dismiss Plaintiff's claims for breach of implied warranty (Count II) and common law breach of warranty (Count VIII). However, as set forth infra, common law breach of warranty claims are still viable in Florida, Accordingly, Western’s Motion must be denied. i. STATEMENT OF UNDISPUTED FACTS A. Allegations in Plaintiff's Third Amended Complaint. 1 On April 8, 2021, Plaintiff's Third Amended Complaint (“Complaint”) against Defendants Polyfirst, Western and ProAmpac Holdings, Inc. (“ProAmpac”) was adopted as the operative pleading in the litigation.’ The Complaint is attached for the Court's convenience as Exhibit A. 2. Relevant here, the Complaint alleges the following counts against Western: Count II — Breach of Implied Warranty) Count II — Fraud Count IV — Negligent Misrepresentation Count V - FDUPTA. Count VIII — Breach of Implied Warranty of Merchantability Count XIV ~ Civil Conspiracy See Ex. A. > See this Court’s April 8, 2021, Order (D.N. 178) granting Plaintif?’s Motion for Leave to file Third Amended Complaint (D.N. 143) and deeming Plaintiff's Third Amended Complaint as filed. 5 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 3. Plaintiff's Complaint outlines a calculated, systematic, and premediated scheme between Western and Polyfirst to fraudulently induce Plaintiff to enter into contracts with Defendant Western for the manufacturing and sale of the zipper pouch bags at issue in this lawsuit. See Compl. 4 13-28. 4. Specifically, in part through their common ownership and business arrangements, the Defendants agreed—prior to Western ever contracting with Plaintiff—to induce Plaintiffto contract with Western by making intentional fraudulent misrepresentations regarding Westem’s capabilities and experience manufacturing flexible packaging. See Compl. $4] 13-16. 5. Relying on the intentional, fraudulent, and false misstatements made by Western on behalf of itself and Polyfirst, Plaintiff contracted with Western for the manufacturing of Plaintiff's Defective Pouches (having been led to believe that Western would be the manufacturer). Western knew the Defective Pouches were to contain Plaintiff's number-one selling nutraceutical protein supplements, and that they would be shipped across the country and internationally. See generally, id. 6. ‘The Defendants knew but kept hidden from Plaintiff that Polyfirst was the true ‘manufacturer of the flexible packaging. Yet, Polyfirst itself had little-to-no experience in making flexible packaging, and it had no experience manufacturing custom zipper bag pouches that Plaintiff ordered from Western. See generally, id. 7 In accordance with the initial conspiracy to defraud, after Western fraudulently induced Plaintiff to lie with Western on a bed of lies on behalf of both Defendants, Polyfirst manufactured the Defective Pouches and shipped them “blind” at Westem’s request to Plaintiff's protein supplement packers for distribution around the country and the world. See generally, id. 6 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 The Complaint’s specific allegations make clear that: a. Western never had any manufacturing capabilities—whatsoever. See Compl.,$4] 13-17, 19-21, 23, 40-45. Western and Polyfirst, through common ownership and specific business arrangements, agreed that Westem would intentionally and falsely misrepresent its own manufacturing capabilities and experience to secure customers whose flexible packaging needs would be outsourced to Polyfirst without the customers’ knowledge. See Compl., f] 13-17, 19-21, 23, 115— 124, Western did intentionally make false, fraudulent, material misstatements, on behalf of the Western and Polyfirst, to induce Plaintiffto contract with Western for the manufacturing of the Defective Pouches. See Compl, $] 13-17, 23, 115. Western and Polyfirst knew they did not have the capability to manufacture Plaintiff's Defective Pouches before, during, and after Western began to negotiate with Plaintiff. See Compl., § 13-17, 19-21, 23, 115-124. ‘Western’s material, false statements about their own manufacturing capabilities actually did induce Plaintiff to contract with Western for the manufacturing of the Defective Pouches. See Compl., {¥ 13-17, 19~ 21, 23, 115-124. The Defendants’ agreement/conspiracy to defraud (and the actual defrauding of Plaintiff) occurred prior to Polyfirst’s manufacturing of the Defective Pouches. See Compl., {¥ 13-17, 19-21, 23, 115-124. Subsequently, Polyfirst knowingly manufactured structurally unsound Defective Pouches, before and after it was purchased by ProAmpac on. September 1, 2017. See Compl., 4] 24-27, 115-124. The Defective Pouches burst, exploded, and caused the protein supplements within to leak out and destroy Plaintiff's Products. See Compl., {¥] 24-27, 115-124. The Defendant's initial Conspiracy to Defraud, and Polyfirst’s subsequent, separate act of manufacturing the Defective Pouches (a) threatened entire Plaintiff's business; (b) caused Plaintiff imeparable economic harm; and (c) destroyed Plaintiff's goodwill and business reputation. See Compl., $f] 28, 115-124. 7 Clayton Trial Lawyers PLLC | 401 €. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom, CASE NO. 2019-CA-000787 B. The Court Has Already Denied Western’s Prior Motion for Partial Summary Judgment Based on the Economic Loss Rule. 9. On August 2, 2022, Polyfirst filed its Motion for Partial Summary Judgment Regarding Counts I and XIV (Economic Loss Rule) (D.N. 617) arguing that the economic loss doctrine barred Plaintiff's claim for civil conspiracy (Count XIV).4 10. On August 22, 2022, Western filed its Notice of Joinder in Polyfirst’s Motion for Partial Summary Judgment Regarding Economic Loss Rule (D.N. 669). i. On November 22, 2022, following a hearing, the Court entered an Order (“Order”) (DN. 784) denying Polyfirst and Western’s Motion for Partial Summary Judgment as to the economic loss rule (D.N. 617). A copy of the November 22, 2022, Order is attached as Exhibit B and incorporated by reference. 12, In the Order, the Court specifically ruled that; «+ aS a matter of law... count XIV survived Defendants’ Motion because, as the Court detailed in Section 1 supra, Plaintiff's allegations regarding Defendants” conduct in support of the tort claims are separate and distinct from the allegations that support the Plaintiff's claims in contract. Namely because Plaintiff alleged that Western, on behalf of all the Defendants, intentionally made fraudulent misrepresentations to Plaintiff—statements that pre-date any contract formation that were made to induce Plaintiff into contracting with the Defendants, the torts are independent, thus they survive the economic loss rule’s application. See Ex. B, at 13-14. The Court correctly relied upon “post Tiara cases that continue to cite to pre~ Tiara authority from Florida’s Supreme Court and DCA’s for the continued existence of the independent tort doctrine.” See Ex. D., at 12-13. “On September 13, 2022, Plaintiff filed its Response to Polyfirst’s Motion for Partial Summary Judgment Regarding Counts I and XIV (Economic Loss Rule) (D.N. 688) which is incorporated herein by reference. 8 Clayton Trial Lawyers PLLC | 401 €. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom, CASE NO. 2019-CA-000787 c. Evidence in the Record of Pre-Contract Acts and Omissions to Support Plaintiff's Claim for Civil Conspiracy to Defraud. 13. On June 2, 2022, Mr. Ahern submitted a declaration under oath dated June 1, 2022 (“Declaration”), in support of Plaintiff's June 2022 Motion for Leave to Add Claim for Punitive Damages Against Defendant Western & Polyfirst (D.N. 478). A copy of Mr. Ahern’s Declaration dated June 1, 2022, is attached as Exhibit C. 14. In the Declaration, Mr. Ahern specifically details that: In 2016, Mr. Slapa invited me and Adam Cannon, RCBA’s Vice President of Operations, to an office and warehouse in Grand Prairie, Texas where Western's purported manufacturing plant was being moved to and gave me a tour of same. Mr. Slapa told me and Mr. Cannon that it was at this facility in Grand Prairie, Texas where the Ronnie Coleman Pouches would be made “in house” at Western’s forthcoming “state of the art” manufacturing plant. In that visit, he said Western would easily manufacture the Ronnie Coleman Pouches for Plaintiff's Products, and that Western had extensive experience and expertise in making the same type of pouch bags, among other things. See Ex. C, (9 15-18. 15. Mr. Ahern further states under oath that Mr. Slapa sent him zipper pouch bags of product Western had purportedly manufactured: Mr. Slapa sent Mr. Cannon and myself his business card and a folder of pouches that were representative of work pouches he said Western made. I have attached a copy of the folder he sent me, which is marked as Exhibit 4. Inthe folder, there are 7 pouches for various sports nutrition companies. The yellow colored one for “ISO-CARB"” is a 2.4-pound pouch for one of our competitors, Man Sports. The website and the marketing materials were impressive to me, and many of them literally have the Western logo and the phrase “Custom Pouches.” These materials, like Mr. Slapa’s verbal representations, portrayed Western as a manufacturer of such products, See Ex. C, 9 21-22. 5 PlaintifP’s June 2022 Motion for Leave to Add Claim for Punitive Damages Against Defendant Western & Poly first (D.N. 478) and the exhibits attached thereto are incorporated herein by reference. 9 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 16. On July 10, 2023, Defendants took the deposition of Plaintiff's Corporate Representative, Brendan Ahem. A copy of the deposition transcript of Plaintiff's Corporate Representative’s July 10, 2023, deposition is attached as Exhibit D. 17. At the deposition, Mr. Ahern testified that prior to contracting with Western, Western's President, Vince Slapa, had represented that Western had a plant in the United States that was capable of manufacturing the Zipper Bags for Plaintiff. See Plf.’s Corp. Rep. Dep., Ex. D, 396: 11-24; 397; 13-16,; 410: 16-23. 18. Mr. Ahern also testified that prior to contracting with Western to manufacture the Zipper Bags, Plaintiff had accessed Western’s website, which showed a video of Western’s manufacturing plant. See PIf.’s Corp. Rep. Dep., Ex. D, 393: 13-22; 394: 6-13; see also Ex. C, 20. 19, On April 6, 2022, Plaintiff's Chief Operating Officer, Adam Cannon, sat for deposition. A copy of the deposition transcript of Mr. Cannon’s April 6, 2022, deposition is attached as Exhibit E. At his deposition, Mr. Cannon testified that during his initial call with Western’s President, Vince Slapa, on October 26, 2016, Mr. Slapa represented that Western was capable of manufacturing the Zipper Bags at Western’s own facilities using Western's equipment. See Cannon Dep., Ex. E, 60: 6-8, 13-22; 61: 9-25; 62: 13-17; 63: 4-9. 20. ‘Mr. Cannon further testified that immediately following that conversation, and prior to contracting for the Zipper Pouches, Western sent Plaintiff a portfolio of samples that Western had purportedly manufactured. See Cannon Dep., Ex. E, 76: 18-25; 77: 1-13. 21. Pursuant to Mr. Cannon’s testimony, “one of the pouches actually had a picture of [Western’s] equipment on the back of it.” See Cannon Dep., Ex. E, 77: 14-19. Indeed, one of the promotional materials sent by Western specifically stated that Western was “specializing in 10 Clayton Trial Lawyers PLLC | 401 €. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 extruding, printing, laminating and custom pouching for all of your packaging needs!” and set forth Western’s Texas address under the banner “Made in the USA.” siusecceenteen Nu Line m9 rio teas Bip forrem ates Sonar econo ar i, Seen = The portfolio and materials included therein sentby Western to Plaintiff are attached as Composite Exhibit F. 22, The portfolio also included several labels, shrink sleeves and pouches that Western had purportedly made, See Cannon Dep., Ex. E, 76: 18-25; 77: 1-13; Comp. Ex. F. However, as admitted by Western’s Corporate Representative, Vince Slapa, at his deposition on November 30, 2022, none of the samples were or had ever been customers of Western and Western had never manufactured the purported samples. See Western’s Corp. Rep. Dep., 58: 10-20, a copy of which is attached as Ext G. 23. Mr. Cannon further testified that the other samples of zipper bags and other packaging sent by Westen to Plaintiff were physical proofof what Western had made in the past. See Cannon Dep., Ex. E, 78: 17-21. Mr. Cannon specifically stated that he relied upon the representations and samples showing that Western had manufacturing capabilities and experience when RCBA chose to contract with Western. See Cannon Dep., Ex. E, 77: 12-13. i Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 24. During this lawsuit, Western also produced emails sent by Western's Sales Coordinator, Xavier Marquez, where Mr. Marquez was advertising to potential customers by falsely representing to customers that Western currently manufactures stand up pouches including those for MAN Sports, Ronnie Coleman and RSP: Jeremy, ‘Tiss Raver with Western Packaging i Dal "reaching out zo you in regards tothe poses that you guysuse for you products. We specialize NGITAL packaging which means there arero plate charges, and minima quartiy order alow a ‘We eurrenty manuTactue the pouches/bags for [MAN Sports, Ransie Colemas and RSP, loveto send you tome samples ane earn the opportunityto work with you as wall Feal free ta contact me for quick chat and 2 mailing address andl shoot some samples ove to you her in the eae future! Thanks, and have a good day! With sincere regards, Xavier Marque: Inside Sales Coordinator smarqueznesternpkg .com Gus wwesternpkg..com WESTERN PACKAGING & Nutraceuticals "Maxing Fiexinle Pack: ra Flaxible’ 1041 avenue Grand Prairie, 1% 5080 A copy of Western's advertising emails, Bates Nos. RCBA00000450, RCBA00000760, and RCBA00000814; and are attached as Composite Exhibit H. 25. Even though Western has absolutely no manufacturing capabilities, it had been fraudulently advertising that it was “proud to be focusing on Lean Manufacturing” on its website. ‘A copy of The Internet Archive's affidavit authenticating Western’s website in 2016, as well as Western’s website pages are attached hereto as Exhibit I. 26. In fact, on every page of its website, Wester embedded a video that brought potential customers through a virtual tour, showing Western’s purported manufacturing warehouse and machinery that did not exist at the Western Packaging location:® * See https:/iwww. youtube,com/watehv=IvOavHzonDE, 12 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 ‘Western Packaging Inc. or =< = a oy {ean Manetoctring ‘team Sema tenn oer in ogc Ty sf pc ip tte‘eae screen ss ana wena tyan enema ay emf mace ‘oes = str] gndom gtr ne one ae rb ssa wea oa Me i seconoi eet tiny entare Lens ‘ecer aterei come See Ex. 27. Similarly, on December 9, 2022, Polyfirst’s Corporate Representative, Ryan Fischer, testified that the “Virtual Tour” video was the “Polyfirst manufacturing plant.” See Mr. Fischer’s December 9, 2022, Depo. Transcript, 209: 13-15, a copy of which is attached as Exhibit J. 28. Polyfirst’s Corporate Representative further testified that Polyfirst knew that Western was using the “Virtual Tour” video on Western’s website. See Polyfirst’s Corp. Rep. Dep., Ex. J, 203: 9-12. 29. Knowing full well that it had no manufacturing machinery or capabi es, Western lured potential customers, such as RCBA, by falsely claiming on its website that it had a “great staffof laborers and the machines it takes to assemble your product at the highest standard of your exact specification.” See Ex. I. 30. Western even went as far as to describe the manufacturing process and the techniques used in the making of flexible packaging. It explained on its “FAQ's” page that they — Western Packaging — could “provide turnkey goods,” and that it had a “unique labeling system.” See Ex. 1. 13 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 31. Western even had a page dedicated to its “Unique Packaging” of Pouch Bags. Westemn’s description of its pouching process began: “pouches are manufactured on top-of-the- line machinery.” See Ex. I. 32. Western also distributed business cards to RCBA and other customers that also represented its manufacturing capabilities and reflected a Hartford, Wisconsin location: a Vince Slapa ssi CUALY, ia YOU FREE oon ornce p ce a Fae eae cert seoo on a ook ew. wastornnp com See Comp. Ex. F. D. Evidence in the Record of Polyfirst and Western’s Civil Conspiracy to Defraud Plaintiff as Evidenced by Common Ownership and False Advertising. 33. ‘As discussed above, Western represented that it had certain manufacturing capabilities to attract customers, only to outsource all of their packaging needs to Polyfirst after securing new clients. 34. As of July 2017, Western was a “distributorship owned 75% by the three current owners of Polyfirst” who had entered into a “right of first refusal” contract with Polyfirst, under which Polyfirst would manufacture flexible packaging opportunities: Western Packaging sa distributorship owned 75% by the3 current ownersof Potyfirst ‘Theremaining 25% is owned by Vince Slapa - who is acting as the General Manager. Standard operating procedure with Western -if they'vegot an opportunityfor flexible packaging -they first quoteitout to Polyfirst. fwecan makeit at theright right priceand in the right timeframe -Polyfirst gets the business. Ifnot, they go elsewhere They donot get special pricing. All transactions with them are at “Arms Length” 14 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | www-ctllawyerscom CASE NO. 2019-CA-000787 See ProAmpac’s production of documents Bates No. ProAmpac 1397 which is attached as Exhibit K. 35. Defendants Western and Polyfirst were unquestionably involved in a common conspiracy to deceive customers just like Plaintiff — a conspiracy evidenced by the common ownership between Westem and Polyfirst, and even Western's employees signing their emails with both Western and Polyfirst’s names. See Western's production of documents Bates No. RCBA00000856 which is attached as Exhibit L. 36. Polyfirst even allowed Western to use its address for Western's UPS account in order to ship products from the Polyfirst warehouse to customers without showing any Polyfirst markings. See Western’s production of documents Bates No. RCBA00000542 which is attached as Exhibit M. 37. Polyfirst and Western were sharing the profits from deceiving unbeknown customers such as Plaintiff as well as other customers such as VPG who also had similar leaking issues with zipper bags as described by Mr. Slapa in an email to the owners of Polyfirst at the time King Coles and Andy Garni. See Polyfirst’s production of documents Bates No. 0002722 which is attached as Exhibit N. E. Evidence in the Record of Western and Polyfirst Intentionally Concealing Their Fraudulent Scheme and Defrauding Plaintiff. 38. Once Western fraudulently induced RCBA to enter into the contracts for the manufacturing of the zipper bags, Wester requested that Polyfirst “SHIP BLIND NO MARKINGS" in order to conceal that Polyfirst was in fact manufacturing the pouches: 15 Clayton Trial Lawyers PLLC | 401 €. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 1020 x17+5.5 BG SUP w/zipper & tear Notch,48G IPET,Reverse Print & Laminate to METPET, Laminate to lomil LLDPE [King Whey Chocolate Brownie 10Ib SHIP BLIND NO MARKINGS (Contact maryelwood@westrnpkg.com for packing slip Bill Of Lading DO NOT DOUBLE STACK DO NOT DOUBLE STACK 3 EMER aT S 7 BurESrERY nnovacionPmKheIve Nat Fientroaty coe war te ww insta See Purchase Orders and Bills of Lading attached as Composite Exhibit O. Polyfirst and Western would also alter Bills of Lading to further conceal from Plaintiff that Western was not manufacturing the Zipper Pouches by replacing Polyfirst with Western’s name all while leaving Polyfirst’s address. See Comp. Ex. O. 39. Notably, it is undisputed at this point that Western does not have any facilities in Hartford, Wisconsin as admitted by Western’s Corporate Representative. See Western’s Corp. Rep. Dep., Ex. G, 58: 10-20. That is, however, the principal place of business of Polyfirst. See Polyfirst’s Corp. Rep. Dep., Ex.J, 120: 2-9. 40. On April 14, 2023, Plaintiff took the continued deposition of Polyfirst’s Corporate Representative, Ryan Fischer. A copy of the deposition transcript of Polyfirst’s Corporate Representative’s taken on April 14, 2023, is attached as Exhibit P. At the deposition, Polyfirst’s Corporate Representative testified that this was part of the arrangement between Polyfirst and 16 Clayton Trial Lawyers PLLC | 401 €. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 Western to ship customer to end products without any markings. See Polyfirst’s Corp. Rep. Dep., Ex. P, 423: 10-19; 434: 3-14. 41. Given Polyfirst and Western’s lack of experience and capabilities, Polyfirst instructed Western on how to “limit [Western and Polyfirst’s] collective liability in terms of the strength of these pouch Fon: Curtis Vorkey jesday, January 20, 2017 10:47 AM To: ince Slapa Subject: RC Pouches ‘Good Morning Vinee: Pertaining to your RC pouches that will be holding a product which will weigh between 10-15 pounds of fine powder; | believe it would behoove nat only PolyFirst, but Wester as well, te timit aur collective liability in terms of the strength of these pouches. Regardless of the strength of these pouches at some -Bcint in ther life cycle there will bea host or leak at some point if dropped a few times or improperly handled | would lke to define what constitutes a pouch that is “strong enough” to meet your elfent’s needs. We propose filing the pouches to the designated weight and doing = crop-test from 3 feet on 3 sides ofthe pouch (bottom/left/right). Hf there are no leaks after these three drops then we would consider this pouch “good. Tals would be performed at the start of the converting process. Ifthe ‘pouches do not pass this test then we would define to your client where the failure is and they woul need ta approve it. ‘Would you please elther raply with an agreement from yourselfor your client? See email from Curtis Yorkey, of Polyfirst, to Vince Slapa dated January 10, 2017, marked as RCBA00000151 attached as Exhibit Q. 42. The collective owners of the Western and Polyfirst - King P. Coles II, Andrew Gari, and Matthew A. Garni — controlled the conspiracy from behind-the-scenes. When Polyfirst’s mishaps and outsourcing caused major delays in RCBA’s shipment, Mr. Slapa of Wester pleaded with Mr. Coles to help move production along at Polyfirst: 17 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | www-ctllawyerscom CASE NO. 2019-CA-000787 From: Vince Slapa Sent Fide, January 13, 2017 239 PM Tos King Coes Ce: Ancy Subject: FA Upes? King, can you help us here. The customer expected the pouches on 12/32 [not saying its Pelyfists fault) we need some help getting, them canverted from Valley PRG ASAP. Furthermore, the customer is coming te Dallas next Fridayto meet with us. See Western's Production of Documents, Bates No. RCBA00000153 attached as Exhibit R. F. Evidence in the Record that Defendants Western and Polyfirst, With Reckless Disregard for Plaintiff's Business, Knew of the High Risk of Failure and Failed to Disclose Same to Plaintiff. 43. At the time that RCBA placed the orders with Western, Polyfirst and Western knew that they did not have the experience or the capabilities to manufacture the Zipper Pouches: ian Soe eterunenasuesegegcnn — a Reseda penne Pe va ~ i roe evecare where Coenen ‘Se trae amie8 ik reset ie oi i ah dr ses in epee See Polyfirst’s production of documents Bates Stamped Poly0000618 which is attached hereto as Exhibit S. 44, More significantly, Polyfirst and Western knew that they were playing a “game of chance” with the manufacturing of the Zipper Pouches for Plaintiff's products. Yet demonstrating their fraud, Defendants disregarded all the potential consequences and hid same from Plaintiff: 18 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | www-ctllawyerscom CASE NO. 2019-CA-000787 Troms Ryan oder ‘Sent: Wednesday, Noverber 16,2016 4:39 PH “os Steve Randaz29 ‘08 Bander ‘Subject: RE: RSP Viney poten pouches: 6 & 10.8 Sree, the outer materi PEED Jaume we have this quoted at ure al ickase i actually _areaor han thy existing ph But Cony about rigid, The more eo cerns of igidity ie sacs athe nh ay Also, this project makes me nervous in anielar bocause protein powder pouches this large behaveno sdteeatytagn liquid. Since we dart west ou lnuiations fr boudsteupth we are playing game of chasce in tars oF successfilue See Ex. S. 45, Polyfirst and Western employees revealed that they did not properly test the pouches prior to mass production, and that even after the pouches began to burst, they still did not have the capabilities on how to resolve the consistent failures: . From: Fischer, Ryan Sent: Thursday, March 28, 2018 452103 P Tor Vince Slap randee'er, Josh; Yorkey, Curtis; Randarzo, Steve: Corey, Dave: Brant, Arey Subject: Re: GAINER-X5 Bags pRongauU0e Sour, should Have read his eal ite clser.implving shat they ae busting on filling. 500g metpet wil dtnitaly hel Copying Dave & Andy. raily should have a burst tes for this but wr don’ have that testing equlpment. Kt might be prudent:get this setup en the machine and send samples cifa the lab fr validation pir to peducing See Western’s production of documents Bates No. WESTERN004559 which is attached hereto as Exhibit T. G. Evidence in the Record that Defendants Western and Polyfirst’s Civil Conspiracy to Defraud Caused Plaintiff Significant Damages. 46, From April 2018 until present date, Plaintiff has been bombarded or faced with complaints about defects in the Defective Pouches from customers and distributors. See Ex. C, {7- 19 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 14, The Defective Pouches were discovered to be defective at over twelve (12) of Plaintiff's major distributors around the world: ass a i 5 ne iy = eS oe i i ccd FHyl rd <9 cE Ht te 3 a Pictures of the leaking Zipper Pouches taken by Plaintiff's customers and sent to Plaintiff are attached as Exhibit U. Among other things, the Defective Pouches were commercially and structurally unfit, and the plastic edges or seams burst apart causing Plaintiff's Products to leak and pour out. See Ex. U. 47. After Plaintiff gave notice to Western of the defects in the Defective Pouches, Western and Polyfirst continued to propagate the fraud: From vince Sopa casa wereraol Date: Monday Apri2, 20:8 t 228 9M. te: ser, Ryan” «fan FscherBroampaccom>, Matsa Suter , "Gallenberget sora SarahGolleobergerBproampeecom> (ernyle Coty hee gap.com, ey, Cus" "andrei, Joh os rari poungaccome, Renan, tv! Sibjec tS aes EXTERNAL: Ts ema orinated fom ousite of rok far, ks god en per however, the co packeres theseup nara Mors acta Bk. They want jst ‘one fave. in Gti, we are sopposedto be he bg expert ard we say we wa totes iw process ey might get mor concered about us more than they ee aed 2 ‘Anpay.to make sample oes? Haha. hd to ask though Scere eg, voce PresceatStapa 20 Clayton Trial Lawyers PLLC | 401 €. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 See Pro’s production of documents Bates Stamped PRO000289 which is attached hereto as Exhibit V. 48. Western and Polyfirst also worked together to continue their fraudulent conspiracy by jointly drafting emails to Plaintiff deflecting their role as the cause of the problems with the Defective Pouches. See Western’s production of documents Bates Stamped 004845, 004858, 004878-79 which are attached hereto as Composite Exhibit W. 49. Asaresult of Western and Polyfirst intentional fraudulent representations regarding their experience and capabilities as well as their material omissions as to their failures and risks, Plaintiff's business was crippled. See Ex. C, 7-14. Not only was RCBA’s reputation decimated, it lost significant sales and profits. To date, Plaintiff has been unable to fully recover from the results of the Western’s reprehensible conduct. See Ex. C, 4{7-14. 50. Through discovery, Plaintiff has also learned that Western’s misrepresentations were corroborated by third parties in the industry. Indeed, the president of SW Nutritional, LLC, Jessie Windrix, a contract manufacturer of dietary supplements, corroborated same at his deposition on December 6, 2022. A copy of Mr. Windrix’s December 6, 2022, deposition transcript is attached as ExhibitX. Specifically, Mr. Windrix testified: “I believe Vince represented himself as the manufacturer.” See Mr. Windrix’s Dep., Ex. W, 178; 1-9. 21 Clayton Trial Lawyers PLLC | 401 E. Las Olas Blvd, | Suite 1400 | Fort Lauderdale FL | wwwctllawyerscom CASE NO. 2019-CA-000787 il. LEGAL ARGUMENT A Legal Standard. Pursuant to Florida Rule of Civil Procedure 1.510, the Court only grants summary judgment to a moving party if it “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510 (emphasis added). “An issue of fact is ‘material’ if, under the applicable substantive law, it might affect the outcome of the case.” Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1311 (11th Cir. 2018). “An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. As amended, and effective as of May 1, 2021, “{tJhe summary judgment standard provided for in” Rule 1.510 “shall be construed and applied in accordance with the federal summary judgment standard.” See Fla. R. Civ. P. 1.510; see also In re Amends. to Fla, Rule of Civ. Proc. 1,510, 309 So.3d 192, 194 (Fla. 2020). The key inquiry on a motion for summary judgment, as noted by the Florida Supreme Court, is hhether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Jd. at 192. Accordingly, “the burden on the moving party may be discharged by showing—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.” Id. at 193 (internal quotations omitted), On the facts concerning the issue of RCBA’s Count X