Plasticon and its predecessor company, International Plastics Corp., was the owner/assignee/beneficiary of certain molds and associated tools and parts (collectively referred to as 'Molds'), which are patented and used in the processing and manufacturing of injected molded plastic parts for rebar supports. Each Mold is marked with the patent number or patent pending notation and cavity number and is an independent piece of personalty. The Molds have a replacement value in excess of One Million Dollars.
Turek v. Mold-Rite Tool, Inc. et al; Date Filed: 03/01/2006
The molds had an average expected life of 3.22 years useful manufacturing life in June 1993 - Plasticon Doc 232-1
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Plaintiff, James Turek ('Turek') submits this Response in opposition to the Motion to Dismiss of Defendants, Mold-Rite Tool, Inc. and Plast-O-Foam, LLC (Defendants).
Defendants' motion to dismiss should be denied. First, defendants have ignored the factual allegations, as established in the Complaint, which support this Court's jurisdiction over this matter. Defendants Mold-Rite and Plast-O-Foam engaged in a persistent and methodical course of tortious conduct against a Kentucky corporation and a Kentucky citizen which makes jurisdiction in this case more than reasonable. Second, Turek has standing to bring this lawsuit due to the fact he incurred individualized and particularized harm based upon his status as a guarantor. As alleged in the Complaint, Turek suffered harm which was very distinct from that of the corporation. Based upon the allegations in the Complaint, both standing and jurisdiction
exist.
STATEMENT OF THE FACTS
Turek is a citizen and resident of the Commonwealth of Kentucky. Turek was, at all times relevant to the allegations in the Complaint, the President, a shareholder and a personalguarantor of certain of the indebtedness incurred by International Plastics Corp., a division of Wicklund Holding Company, a Delaware corporation with its principle place of business in Kentucky, later known as Plasticon International, Inc. ('Plasticon').
Plasticon and its predecessor company, International Plastics Corp., was the owner/assignee/beneficiary of certain molds and associated tools and parts (collectively referred to as 'Molds'), which are patented and used in the processing and manufacturing of injected molded plastic parts for rebar supports. Each Mold is marked with the patent number or patent pending notation and cavity number and is an independent piece of personalty. The Molds have a replacement value in excess of One Million Dollars.
The factual allegations, as set forth in Turek's verified Complaint, evidence the persistent course of conduct in which the Defendants engaged. This conduct began with Plasticon developing a working relationship with General Plastics, whereby General Plastics was granted possession of the Molds in order to perform the plastic injection process with the Molds, thereby producing the rebar support products for Plasticon's use.
Presently, General Plastics may be a dissolved corporation which is no longer in business. The first known tortious act against Plasticon occurred when, without Plasticon's consent or permission, the Molds were moved from General Plastics to defendant, Mold-Rite's facility, even though Plasticon was lawfully entitled to possession of the Molds. Turek and Plasticon vehemently objected to the Molds being moved to Mold-Rite's facility. In fact, Plasticon made repeatedly demands that the Molds be returned, but Mold-Rite refused to relinquish possession of all Molds.
Instead, Mold-Rite consistently refused to surrender the Molds and monies belonging to Plasticon, stating that Plasticon must given certain monies to General Plastics. Thus, Mold-Rite took Plasticon's property without permission and intentionally deprived it of the Molds in orderto force Plasticon into an impossible monetary position. All of this persistent course of tortious conduct was done in an attempt to exert leverage against Plasticon and force it to pay monies to General Plastics and to do business with Mold-Rite.
As a result, Mold-Rite deprived Plasticon of its source of income, revenues in which to conduct business, as well as with Plasticon's independent means to conduct its business and develop further business. In fact, Mold-Rite wrongfully withheld Plasticon's Molds, with full knowledge of the fact they were not entitled to possession of them. While the Molds were wrongfully held by Mold-Rite, Mold-Rite used Plasticon's Molds for its own use and enjoyment, effectively deteriorating the Molds and shortening the Molds' useful life, in addition to depriving Plasticon of its use and enjoyment of the Molds.
After repeated demands were made to return the Molds, Plasticon was forced to do business with Mold-Rite due to continued financial pressure and Plasticon??s obligations to its customers. Yet again, the tortious course of conduct continued when at the time Plasticon entered into certain agreements with Mold-Rite, Mold-Rite made certain intentional misrepresentations. Mold-Rite knew that Plasticon would rely upon these representations in order to enter into a business relationship with Mold-Rite and in Plasticon's regular business dealings.
These misrepresentations included, among others: Plasticon would be paid monies for the use of the Molds and products made by Mold-Rite; Mold-Rite would abide by the terms of the coerced limited agreements; Mold-Rite would ensure timely delivery of products to Plasticon's customers; Mold-Rite would advise Plasticon of work they were doing using Plasticon's Molds; Mold-Rite would not use Plasticon's Molds for their own benefit; and Mold-Rite would not move the Molds without written permission of Plasticon.
All of the communications between Turek and the Defendants occurred by the use of telephone, facsimile and written correspondence directed to and from Kentucky. AlthoughMold-Rite promised Plasticon as stated supra, the Defendants did not comply with any of these representations. These representations were made intentionally to deceive Plasticon and to induce the company into doing business with Mold-Rite, but they were not honored.
Furthermore, Mold-Rite negotiated that Plasticon would pay for the raw material (resin) for Mold-Rite to manufacture parts for Plasticon and Plasticon's customers. Such resin was unique to the parts made for Plasticon. Notwithstanding their agreement, Mold-Rite purchased the raw material from a supplier without the knowledge or permission of Plasticon.
Additionally, Mold-Rite agreed with Plasticon that it would not take any direct sales orders for Plasticon's Molds. Once again, Mold-Rite failed to notify Plasticon that it was molding parts using the Kentucky corporation's patented designs and Molds for Plasticon's customers and for other customers. Yet another example of the tortious course of conduct is that Mold-Rite promised Plasticon that it would ship the product within three days from receipt of the purchase order -- of course Mold-Rite failed to ship the product within the specified time.
This intentional and improper interference with Plasticon??s contracts jeopardized Plasticon's business relationships and relationships with other entities. Further, Mold-Rite's conduct caused the various customers to breach their contracts, not to renew their contracts, or not to place additional orders or contracts with Plasticon, causing Plasticon to breach or jeopardize its contracts with other entities.
As yet more evidence that Mold-Rite engaged in a course of conduct which makes the assertion of jurisdiction fair and reasonable, Mold-Rite proceeded to move Plasticon's Molds to
its affiliate, Defendant Plast-O-Foam, without Plasticon's permission and in violation of the terms of its agreement with Plasticon. Plast-O-Foam received the Molds and their resulting
monies and services, knowing them to have been converted, and used them for their own benefit.
At Plast-O-Foam's location, Plasticon's Molds were used without Plasticon's knowledge or permission and without paying monies to Plasticon.
Last, pursuant to the forced business arrangement, Mold-Rite agreed to pay to Plasticon a specific sum of money for each piece of molded product produced. Instead, Mold-Rite has not
paid Plasticon for the molded parts or for the unauthorized use of the Molds. In fact, Mold-Rite refused to agree on preset prices for molded parts, thereby preventing Plasticon from accurately quoting parts for its present and future customers. This conduct, as well as the other tortious conduct of Mold-Rite and Plast-O-Foam, negligently and intentionally interfered with Plasticon's existing and new contracts and jeopardized Plasticon's business relationships. Mold-Rite and Plast-O-Foam knew or reasonably should have known that their conduct toward Plasticon would result in lost profits.
As a direct result of the Defendants' tortious activities expressed in the Complaint, as reiterated above, Plasticon was deprived of its source of income and its revenues in which to conduct business, as well as of its independent means to conduct its business and develop further business. <b?Thus, Plasticon became unable to pay its debtors. Consequently, civil actions and foreclosure proceedings were instituted for the collection of debt against Plasticon. |
