United States District Court, E.D. Kentucky, Northern Division, Covington
William O. Bertelsman United States District Judge.
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).
studied this matter further, the Court now issues the
basic jurisdictional facts are, for the most part, not
disputed, although the conclusions to be drawn therefrom are
to the pleadings and his declaration, the plaintiff Timothy
Tierney, acting individually and through his wholly owned
company, Eat More Wings, LLC, 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.
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.
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).
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.
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
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).
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).
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
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
• 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 ...