Shoemaker Corp. v. Garrett

• Docket Number: 4:19-cv-00145-JCG-CDL
• Decision Date: 01 December 2023
• Parties: SHOEMAKER CORPORATION III, INC., Plaintiff, v. M. JEROME GARRETT AND JOSHUA S. FELLMAN, Defendants, and M. JEROME GARRETT, JOSHUA S. FELLMAN, DAVINCI MSP, INC., AND GARRETT AND FELLMAN OPERATING, LLC, Third-Party Plaintiffs, v. KEVIN SHOEMAKER AND SHOEMAKER CORPORATION III, INC., Third-Party Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

1

SHOEMAKER CORPORATION III, INC., Plaintiff,
v.
M. JEROME GARRETT AND JOSHUA S. FELLMAN, Defendants,

and

M. JEROME GARRETT, JOSHUA S. FELLMAN, DAVINCI MSP, INC., AND GARRETT AND FELLMAN OPERATING, LLC, Third-Party Plaintiffs,
v.
KEVIN SHOEMAKER AND SHOEMAKER CORPORATION III, INC., Third-Party Defendants.

No. 4:19-cv-00145-JCG-CDL

United States District Court, N.D. Oklahoma

December 1, 2023

OPINION AND ORDER

Jennifer Choe-Groves U.S. District Court Judge ^[*]

Before the Court are a Motion for Preliminary Injunction filed pursuant to Rule 65 by Shoemaker Corporation III, Inc. (“Plaintiff” or “Shoemaker Corporation”) [Doc. 16]; Motions to Dismiss filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) by Shoemaker Corporation and Third-Party Defendant Kevin Shoemaker (“Shoemaker”) [Docs. 57, 59]; and Motions for Partial Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendants and Third-Party Plaintiffs M. Jerome Garrett (“Garrett”) and Joshua S. Fellman (“Fellman”), Third-Party Plaintiff DaVinci MSP, Inc. (“DaVinci”), and Third-Party Plaintiff Garrett and Fellman Operating, LLC (“GFO”) [Doc. 82], and by the Shoemaker Parties [Doc. 94].

For the reasons discussed below, Plaintiff's Motion for Preliminary Injunction is denied as moot, Plaintiff's Motion to Dismiss and Shoemaker's Motion to Dismiss are denied in part and granted in part, the Garrett-Fellman Parties' Motion for Partial Summary Judgment is denied in part and granted in part, and the Shoemaker Parties' Motion for Partial Summary Judgment is denied.

2

BACKGROUND

Based on the Complaint, Amended Third-Party Complaint, and extrinsic documents attached to these filings, the factual allegations are as follows.^[1]Plaintiff (d/b/a Technology Solutions Consulting, Inc.) is a corporation registered in the State of Nevada and doing business in Tulsa County, Oklahoma. Plaintiff owns and operates businesses under various trade names, including Imminent Data Hosting, LLC and Communications World of Tulsa (d/b/a Edge Technologies). Shoemaker is an individual who resides in Tulsa County, Oklahoma and is the Chief Executive Officer of Plaintiff. The Court refers to Plaintiff and Shoemaker collectively as the “Shoemaker Parties.”

Defendants Garrett and Fellman are individuals who reside in Tulsa County, Oklahoma and are now doing business as DaVinci and GFO. DaVinci is a

3

domestic for-profit corporation registered in Oklahoma and was formerly known as Technology Solutions Consulting, Inc. GFO is a domestic for-profit corporation registered in Oklahoma and was formerly known as Imminent Data, LLC. The Court refers to Garrett and Fellman collectively as “Defendants,” and refers to Garrett, Fellman, DaVinci, and GFO collectively as the “Garrett-Fellman Parties.”

Plaintiff alleged eleven causes of action in its Complaint, including breach of an Asset Purchase and Sale Agreement (“APSA”) (Count I); breach of a Restrictive Covenant Agreement (Count II); tortious interference with existing and prospective contractual relations (Count III); fraudulent inducement (Count IV); fraud/concealment (Count V); unfair competition and false designation of origin under the Lanham Act (Count VI); unfair competition, common law trademark infringement, and passing off under Oklahoma law (Count VII); civil conspiracy (Count VIII); declaratory judgment for the enforceability of the APSA and Restrictive Covenant Agreement (Count IX); constructive trust over receivables and payments allegedly belonging to Plaintiff (Count X); and accounting of all transactions and contracts entered into and payments received by Defendants (Count XI). Compl. at 13-21.

On March 26, 2019, Plaintiff filed a Motion for Preliminary Injunction against Defendants, seeking to “enjoin Defendants, their employees, and all persons acting in concert with Defendants from competing with Plaintiff for five

4

years from the Closing Date of the [APSA] and from using Plaintiff's Trade Names immediately and during the pendency of this action.” Pl.'s Mot. Prelim. Inj. [Doc. 16]; Pl.'s Mem. Law Supp. Mot. Prelim. Inj. [Doc. 17]. Defendants opposed the motion and Plaintiff filed a reply. Defs.' Combined Resp. Pl.'s Mot. Prelim. Inj. Br. Supp. [Doc. 21]; Pl.'s Reply Supp. Mot. Prelim. Inj. [Doc. 24].

On June 10, 2019, the Garrett-Fellman Parties (as Third-Party Plaintiffs) filed an Amended Third-Party Complaint^[2] against the Shoemaker Parties (as Third-Party Defendants), alleging: breach of a Consulting Agreement Summary (Counterclaim I); conversion (Counterclaim II); breach of guaranty (Counterclaim III); tortious interference with existing business relationships (Counterclaim IV); appointment of receiver and imposition of constructive trust (Counterclaims V- VI); seeking an accounting of the books and records of Plaintiff and Shoemaker (Counterclaim VII); and seeking damages for unjust enrichment (Counterclaim VIII). See First Am. Counterclaims/Third-Party Petition (“Am. Third-Party Compl.”) [Doc. 51]; Am. Third-Party Compl. at Ex. A (“Consulting Agreement Summary”) [Doc. 51-1], Ex. B (“Amended and Corrected Asset Purchase and Sale

5

Agreement” or “APSA”) [Doc. 51-2], Ex. C (“Promissory Note”) [Doc. 51-3], Ex. D (“Security Agreement”) [Doc. 51-4].

On August 16, 2019, the Shoemaker Parties filed their respective motions to dismiss the Amended Third-Party Complaint. See Kevin Shoemaker's Mot. Dismiss Am. Counterclaim and Third-Party Compl. (“Shoemaker's Motion to Dismiss” or “Shoemaker's Mot.”) [Doc. 57]; Kevin Shoemaker's Mem. Supp. Mot. Dismiss (“Shoemaker's Mem.”) [Doc. 58]; Shoemaker Corp.'s Mot. Dismiss Am. Counterclaims and Third-Party Compl. (“Plaintiff's Motion to Dismiss” or “Pl.'s Mot.”) [Doc. 59]; Shoemaker Corp.'s Mem. Supp. Mot. Dismiss (“Pl.'s Mem.”) [Doc. 60]. The Garrett-Fellman Parties filed their briefs in opposition and the Shoemaker Parties filed their reply briefs. Defs.' and Third-Party Pl.'s Resp. Pl.'s Mot. Dismiss (“Resp. Pl.'s Mot. Dismiss”) [Doc. 61]; Defs.' and Third-Party Pls.' Resp. Third-Party Def.'s Mot. Dismiss (“Resp. Shoemaker's Mot. Dismiss”) [Doc. 62]; Pl.'s Reply Mot. Dismiss (“Pl.'s Reply”) [Doc. 63]; Third-Party Def. Kevin Shoemaker's Reply Mot. Dismiss [Doc. 64] (“Shoemaker's Reply”).

On October 30, 2020, the Garrett-Fellman Parties filed a Motion for Partial Summary Judgment, moving for summary judgment on all claims (except for declaratory judgment (Count IX)) and the counterclaim of conversion (Counterclaim II). Defs.' and Third-Party Pls.' Mot Part. Summary J. (“GFP's Mot. Part. Summary J.”) [Doc. 82]; Defs.' Mem. Supp. Mot. Part. Summary J.

6

(“GFP's Moving Br.”) [Doc. 83]; Defs.' Statement of Uncontroverted Facts (“GFP's SUMF”) [Doc. 83]; Decl. Joshua Fellman (“Fellman Decl.”) [Doc. 84]; Decl. M. Jerome Garrett (“Garrett Decl.”) [Doc. 85]. The Shoemaker Parties opposed the motion, and the Garrett-Fellman Parties filed their reply. Resp. Br. Opp'n Defs. Third-Party Pls.' Mot. Part. Summary J. Pl. Third-Party Def. (“SP's Resp.”) [Doc. 100]; Statement of Disputed Material Facts (“SP's SDMF”) [Doc. 100]; Ex. Supp. Mot. (“SP's Ex. 13 Resp.”) [Doc. 113]; Defs.' Third-Party Pls.' Reply Resp. Br. Pl. Third-Party Def. Opp'n Mot. Part. Summary J. (“GFP's Reply”) [Doc. 105].

On December 30, 2020, the Shoemaker Parties moved for partial summary judgment on Counts I and II of the Complaint and Counterclaims I and III of the Amended Third-Party Complaint. Combined Part. Mot. Summary J. Br. Supp. Pl. Third-Party Def. (“SP's Mot. Part. Summary J.” or “SP's Moving Br.”) [Doc. 94]; Statement of Uncontroverted Material Facts (“SP's SUMF”) [Doc. 94]; Decl. Kevin Shoemaker (“Shoemaker Decl.”) [Doc. 94-1]. The Garrett-Fellman Parties opposed the motion, and the Shoemaker Parties filed their reply. Defs' Third-Party Pls.' Resp. Combined Part. Mot. Summary J. Br. Supp. Pl. Third-Party Def. (“GFP's Resp.”) [Doc. 98]; Statement of Uncontroverted Facts (“GFP's SDMF”) [Doc. 98]; Reply Br. Resp. Defs. Third-Party Pls.' Resp. Combined Mot. Summary J. Br. Supp. Pl. Third-Party Def. (“SP's Reply”) [Doc. 106].

7

On February 27, 2023, this case was reassigned to the undersigned judge sitting by designation. Min. Order [Doc. 114]. The Court held a status conference on August 24, 2023. Min. Proceeding (Aug. 24, 2023) [Doc. 117].

DISCUSSION

I. Motion for Preliminary Injunction

Plaintiff moves to “enjoin Defendants, their employees, and all persons acting in concert with Defendants from competing with Plaintiff for five years from the Closing Date of the [APSA] and from using Plaintiff's Trade Names immediately and during the pendency of this action.” Pl.'s Mot. Prelim. Inj. at 1. Because the Closing Date was September 15, 2017, Plaintiff's requested injunctive relief expired on September 15, 2022, and the Court can no longer offer the relief requested by Plaintiff. Therefore, Plaintiff's Motion for Preliminary Injunction is denied as moot.

II. Motions to Dismiss

The Shoemaker Parties move to dismiss the Amended Third-Party Complaint pursuant to Rules 12(b)(1) and 12(b)(6), and also challenge several counterclaims on the basis that they do not meet the pleading standards set forth in Rule 8(a)(2).

8

A. Rule 12(b)(1): Subject Matter Jurisdiction

1. Legal Standard

Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take one of two forms: a facial attack or a factual attack. Thurman v. Cnty. Comm'rs of Okla. Cnty., No. CV-17-950-M, 2018 WL 6237908, at *2 (W.D. Okla. Oct. 16, 2018); see also Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015).

A facial attack questions the sufficiency of the complaint's allegations, and when reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Thurman, 2018 WL 6237908, at *2. A factual attack challenges the facts upon which subject...