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Ceres Protein, LLC v. Thompson Mechanical & Design

United States District Court, W.D. Kentucky, Louisville Division

March 15, 2017

CERES PROTEIN, LLC, et al., Plaintiffs/Counterclaim Defendants,
v.
THOMPSON MECHANICAL & DESIGN, et al., Defendants/Counterclaimants.

          MEMORANDUM OPINION

          THOMAS B. RUSSELL, SR. JUDGE

         In 2014, Ceres Protein, LLC and Roger Shannon filed this action against Barry and Robert Thompson, along with their Ohio partnership Thompson Mechanical & Design, alleging claims for defamation and for intentional interference with a prospective business relationship. The Thompsons responded with a counterclaim against Ceres Protein, LLC, Roger Shannon, and Michael Tarullo, Jr., pressing equitable claims for unjust enrichment and quantum meruit. Now, pursuant to Federal Rule of Civil Procedure 56, Ceres Protein, LLC, Roger Shannon, and Michael Tarullo, Jr. ask the Court to enter judgment on those counterclaims. The Thompsons not only oppose that motion, but also move to strike portions of Roger Shannon's affidavit, along with certain exhibits, attached to it. For reasons explained in detail below, the Thompsons' Motion to Strike, [R. 91], is DENIED IN PART and DENIED IN PART AS MOOT, and Ceres Protein, LLC, Roger Shannon, and Michael Tarullo, Jr.'s Motion for Summary Judgment, [R. 90], is GRANTED.

         I.

         A.

         In 2013, Roger Shannon and Michael Tarullo, Jr. formed Ceres Protein, LLC to pursue business opportunities relating to repurposing “whole stillage, ” or distillery waste, generated by distilleries in Kentucky and Tennessee. Ceres Protein, LLC helps distilleries reduce the expense of removing spent distillers' grains, known as “slop, ” which result from the distilling process. Through a comprehensive process that separates and de-waters usable solid grains, Ceres Protein, LLC transforms distiller's slop into a product called “wet cake, ” which is then sold to farmers for livestock feed.

         In early 2013, Ceres Protein, LLC cultivated two business relationships necessary to offer slop processing services to distilleries. First, Ceres Protein approached Vincent Corporation, a manufacturer of screw presses, about providing it with the equipment needed to de-water distillers' slop and create wet cake. Second, Ceres Protein, LLC contracted with Land o' Lakes Purina Feed LLC to distribute the wet cake generated from its slop processing for use as livestock feed.

         Sometime around mid-2013, Michael Tarullo, Sr. (Michael Tarullo, Jr.'s father) and Barry Thompson, along with his son Robert Thompson, approached Roger Shannon and Michael Tarullo, Jr. about a possible business arrangement. The trio proposed developing a “stage two” process whereby wet cake could be dried to create dried distillers' grains, a product with a lower moisture content, a longer shelf-life, and better transportability. Barry Thompson holds U.S. Patent No. 8, 561, 315, which protects a grain-drying system that utilizes solar energy to pass heated air through a conventional crop silo or bin for the purpose of drying grain. He assigned that patent to Legacy Design LLC, an Ohio limited liability company, owned and operated by the Thompsons. Though no one had used that patented method to process stillage before, Barry Thompson claimed that it could be adapted for Ceres Protein, LLC's uses.

         Michael Tarullo, Sr. and the Thompsons offered to license that intellectual property to Ceres Protein, LLC, to offer engineering support, and to contribute the capital needed during the start-up phase of the venture in exchange for a membership interest in Ceres Protein, LLC. Between July and October 2013, the parties attempted to negotiate such an arrangement. However, no agreement resulted.

         Following the breakdown in negotiations, in December 2013, Ceres Protein, LLC sent Barry Thompson a request for a proposal for the design and construction of a drying system suitable for Ceres Protein, LLC's purposes if it decided to pursue a “stage two” process in the future. The Thompsons never responded to that request, though, and so Ceres Protein, LLC moved on and continued pursing business opportunities related to wet cake processing. It never marketed or disclosed any aspect of Barry Thompson's proprietary technology to potential distillery customers, such as Heaven Hill Distilleries Inc., with which Ceres Protein, LLC had been actively negotiating for some time.

         In late January 2014, however, Barry Thompson sent a letter to Heaven Hill Distilleries claiming that certain “third parties” might have inappropriately disclosed Legacy Design LLC's patented technology to it. In addition, he explained that since the Thompsons' relationship with “a Louisville based company” to “co-develop a distiller's grain processing facility” adjoining Heaven Hill Distilleries' plant in Breckinridge, Kentucky “was never consummated, ” the Thompsons were “now in a position to compete for the project.” [R. 116-5 at 3 (Letter from Barry Thompson to Heaven Hill Distilleries Inc.).] On February 4, Denny Potter, the plant manager at that location, responded that no one had revealed any “proprietary information” to Heaven Hill Distilleries and that it had no interest in a stage-two drying process at that time. [R. 116-6 at 2 (E-mail from Denny Potter to Barry Thompson).]

         Later that same day, the Thompsons sent an invoice to Ceres Protein, LLC demanding $175, 000 for “work and materials” related to the development of the “stage two” drying process. [R. 116-1 at 2-5 (Invoice).] Ceres Protein, LLC claimed, however, that it never asked the Thompsons to do anything of the sort. [R. 116-2 at 2 (E-mail from Roger Shannon to Robert Thompson).] It refused to pay the invoice.

         Subsequently, the Thompsons engaged in a pattern of conduct designed-at least in Ceres Protein, LLC's estimation-to extort payment on that invoice. On March 13, Barry Thompson sent a second letter to Heaven Hill Distilleries, claiming that “a group operating from Ohio and Kentucky” had been improperly marketing Legacy Design LLC's “patented technology and trade secrets.” [R. 116-7 at 2-3 (Letter from Barry Thompson to Heaven Hill Distilleries Inc.).] Three days later, Robert Thompson emailed Heaven Hill Distilleries and repeated those allegations. [R. 116-8 at 2 (E-mail from Robert Thompson to Heaven Hill Distilleries Inc.).] Although none of the Thompsons three letters identified the alleged infringer, Heaven Hill Distilleries knew the accusations were directed at Ceres Protein, LLC: Dennis Potter forwarded Robert Thompson's e-mail to Roger Shannon and Michael Tarullo, Jr. that same afternoon. [R. 116-10 at 2 (E-mail from Dennis Potter to Roger Shannon and Michael Tarullo, Jr.).]

         The Thompsons escalated their efforts in late March. Between March 31 and April 17, the Thompsons contacted Steel Technologies, LLC, for which Roger Shannon was the Chief Financial Officer and Treasurer, on four occasions. [R. 116-11 at 8 (Response to Interrogatories).] In a letter to Michael Carroll, the Chief Executive Officer of Steel Technologies, LLC, Barry Thompson accused Roger Shannon of having committed “serious ethical breaches, possible patent infringement, and fraudulent activity.” [R. 116-13 at 2 (Letter from Barry Thompson to Michael Carroll).] A few weeks later, on April 17, Barry Thompson faxed a letter to the Board of Directors of Steel Technologies, LLC, and to the CEOs and Boards of Directors of Mitsui & Co. (U.S.A.) Inc. and Nucor Corporation, joint-venture partners in the entity which owns Steel Technologies, LLC, claiming that Roger Shannon had been “evasive to say the ...


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