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Eat More Wings, LLC v. Home Market Foods, Inc.

United States District Court, E.D. Kentucky, Northern Division, Covington

October 10, 2017



          William O. Bertelsman United States District Judge.


         This matter came before the Court on the motion of the defendant Home Market Foods, Inc. (“HMF”) to dismiss for lack of personal jurisdiction. (Doc. 13). Following a period of jurisdictional discovery, oral argument was held on August 29, 2017. Following argument, the Court announced its decision to deny the motion to dismiss, stating that it would file a written opinion setting forth its rationale for concluding that personal jurisdiction existed. (Doc. 51).

         Having studied this matter further, the Court now issues the following opinion.


         The basic jurisdictional facts are, for the most part, not disputed, although the conclusions to be drawn therefrom are hotly contested.

         According to the pleadings and his declaration, the plaintiff Timothy Tierney, acting individually and through his wholly owned company, Eat More Wings, LLC[1], developed formulae for a unique dry rub and a liquid spice for chicken wings, which he desired to market. (Tierney Decl. ¶ 2). (Doc. 21). At that time, Tierney was a Kentucky citizen.

         In 2013, Tierney's nephew put him in touch with a representative of The Kroger Company to discuss the possibility of Kroger selling chicken wings containing Tierney's spices. (Tierney Decl. ¶ 3). After sampling Tierney's spices, Kroger expressed interest in purchasing Tierney's products.

         In June 2015, Tierney began working with HMF's research and development team to commercially produce chicken wings containing his spices for sale at Kroger and other retailers. (Tierney Decl. ¶ 7).[2]

         A course of negotiations and discussions of possible cooperation among these parties ensued. Many emails and phone conversations were exchanged. During some of these exchanges, Tierney was in Florida, where he had a residence and where he was considering moving.

         In January 2016, Tierney did move to Florida while also maintaining a home in Northern Kentucky. He resided in both places, but at some point in early to mid-2016, he established citizenship in Florida for both himself and his LLC.

         On February 22, 2016, Tierney sent HMF a draft licensing agreement listing his Kentucky address and including a Kentucky choice of law provision. (Tierney Decl. ¶ 18, Exh. C). The parties continued to negotiate and, on March 29, 2016, HMF sent Tierney a revised agreement identifying Eat More Wings as a Kentucky LLC and listing Tierney's Kentucky address under the signature line, but employing a Massachusetts choice of law provision. (Tierney Decl. ¶ 23, Exh. F). That same day, Tierney established the LLC as a Florida entity. (Tierney Decl. ¶ 24).

         Ultimately, HMF discontinued negotiations and commenced marketing chicken wings - made with the spices allegedly stolen from Tierney - through grocery stores, including Kroger. (Complaint ¶ 42) (Doc. 1-1 at 12).

         Tierney's declaration sets out a series of emails with HMF beginning in March, 2015 and extending to February, 2016. Several drafts of a marketing agreement were exchanged. During this exchange of emails Tierney was sometimes in Kentucky and sometimes in Florida.

         The Court considers the following transactions to be sufficient to establish personal jurisdiction over HMF in Kentucky, although it seems that some of the emails were sent to and returned from Florida:

• On June 23, 2015, HMF Research and Development Supervisor Srividya Sreeram (“Vidya”) emailed Tierney: “The 10lbs of Chicken Wing Seasoning 107195 was delivered this afternoon. Thank you. Please send us the processing details at the earliest - we have the raw materials in house to start working on this.” (Doc. 21 at 15).
• On June 24, 2015, Vidya emailed Tierney: “I also wanted to ask you if you'll send any maple sriracha flavoring for us to work with? (Doc. 21 at 14).
• On July 2, 2015, Vidya emailed Tierney: “Could you please send us another 10 lbs. of the seasoning, with a 50% reduction in salt? Also could you please let me know when you'll be sending us the sriracha/maple glaze?” (Doc. 21 at 13).
• On July 2, 2015, Tierney replied: “I am back in Kentucky and have got all the ingredients . . . . I just need to mix and find a proper container to send to you. I promise to do it this weekend.” (emphasis added). In the same email Tierney asked why HMF wanted a 50% reduction in salt. (Id.).
• On July 2, 2015, Vidya replied, explaining why the reduction in salt was requested. (Id.).
. On July 8, 2015, Tierney emailed Vidya from Kentucky to tell him that Tierney was sending him a container of the sriracha/maple ...

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