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Dry Enterprises, Inc. v. Sunjut AS

March 31, 2008

DRY ENTERPRISES, INC., AN ILLINOIS CORPORATION; SUNPACK PACIFIC, LLC, A DELAWARE LIMITED LIABILITY COMPANY; STEVEN E. DRY, AND INDIVIDUAL; AND HAKAN HAZNECI, AN INDIVIDUAL, PLAINTIFF ,
v.
SUNJUT AS, A TURKISH CORPORATION; SUN- PACK CORPORATION D/B/A SUNJUT CORPORATION, AN ILLINOIS CORPORATION; METIN LEVI, AN INDIVIDUAL; FIDAN LABBE, AN INDIVIDUAL; YASEMIN CINAR, AN INDIVIDUAL; KARRIE PATRIQUIN, AN INDIVIDUAL; AND TUNCER ERTOKLAR, AN INDIVIDUAL, DEFENDANT .



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiffs Dry Enterprises, Inc. ("Dry Enterprises"), Sunpack Pacific, LLC ("Sunpack Pacific"), Steven E. Dry ("Steven Dry") and Hakan Hazneci ("Hazneci") (collectively "Dry") bring this action against Defendants Sunjut A.S., Sun-Pack Corporation ("Sun-Pack"), Metin Levi ("Levi"), Fidan Labbe ("Labbe"), Yasemin Cinar ("Cinar"), Karrie Patriquin ("Patriquin") and Tuncer Ertoklar ("Ertoklar") alleging violations of the Electronic Communications Privacy Act, the Stored Communications Act, the Computer Fraud and Abuse Act, breach of contract, tortious interference with prospective economic advantage, tortious interference with contract and defamation. Sunjut A.S., Sun-Pack, Levi, Labbe, and Ertoklar move to dismiss Plaintiff's defamation claim, and Cinar and Patriquin move to dismiss Plaintiffs defamation, tortious interference with contract, and tortious interference with prospective economic advantage claims.

STATEMENT OF FACTS

At the motion to dismiss stage, all of the plaintiffs' allegations are accepted as true. Pursuant to orally agreed upon terms and conditions, Dry Enterprises has, for the past several years, purchased flexible intermediate bulk containers ("FIBCs") from Sunjut U.S.A. and Sunjut A.S. (collectively "Sunjut"). Cmplt. at ¶39. FIBCs are a typle of storage bag used in international shipping that aids in preserving the product during shipping. Dry Enterprises received orders from customers, purchased the FIBCS from Sunjut U.S.A., and Sunjut A.S. sent the FIBCs directly to Dry Enterprises' customers. Id. at ¶¶40-44. Sunjut U.S.A. then paid Dry its margin on the sales each month. Id. at ¶45. By 2001, Dry became interested in purchasing FIBCs manufactured in Asia at lower prices. Id. at ¶48. To this end, once Steven Dry and Hazneci located a suitable Chinese manufacturer, Sunjut became interested in the opportunity. Id. at ¶¶51-52. In August 2004, Dry, Hazneci, and Sunjut A.S. formed a limited liability company known as Sunjut Pacific, LLC, which on January 27, 2007 changed its name to Sunpack Pacific, LLC ("Sunpack Pacific"). Id. at ¶52. Sunpack Pacific was designed to purchase and sell and distribute FIBCs manufactured in Asia to customers all over the world. Id. at ¶54.

According to Sunpack Pacific's Operating Agreement, Sunjut A.S. was required to contribute technology valued at $150,000, and Sunpack Pacific paid Sunjut U.S.A. a commission on all bags delivered to the United States from manufacturers in China. Id. at ¶¶56, 59. Both Dry Enterprises and Sunjut U.S.A. became customers of Sunpack Pacific. Id. at ¶¶57-58.

After the formation of Sunpack Pacific, the parties' business relationship began to deteriorate. Id. at ¶63. On or about October 27, 2006, Steven Dry discovered that someone had altered his email settings such that all his emails were immediately forwarded to Levi, the managing director of Sunjut A.S. and president of Sunjut U.S.A. Id. at ¶64. Neither Levi nor anyone at Sunjut was authorized to access Steven Dry's email account, and Steven Dry believes that Levi, or someone else at his direction, altered the settings so that Levi could receive Steven Dry's proprietary information concerning the business of Dry Enterprises and Sunpack Pacific. Id. at ¶¶65-66.

On January 18, 2007, Patriquin, Sunjut's customer service representative, informed Sunpack Pacific that from that point forward Sunjut would require Dry to attach its customers' original purchase orders when ordering FIBCs and releasing them from the warehouse and that Sunjut would no longer accept a purchase order that displayed the Sunpack name and logo. Id. at ¶68. In response, on January 19, 2007, Dry Enterprises informed Patriquin that it would purchase FIBCs directly and use its own warehouse and freight and thus would no longer need Sunjut's services to store or ship FIBCs or bill customers. Id. at ¶70. The same day, Levi confirmed the changes and stated that Sunjut would no longer bill Dry's customers on invoices displaying the Sunpack name and logo. Id. at ¶71. Although Sunjut U.S.A. had stated that the new terms would apply only to new orders, on March 16, 2007, it stated that it would not ship the outstanding orders as previously agreed. Id. at ¶72.

Sunjut A.S. then failed to provide Sunpack Pacific with the technology required by the Operating Agreement, and Sunjut U.S.A. failed to pay Sunpack Pacific for products purchased. Id. at ¶¶73-74. Sunjut A.S. also set up a joint venture and then another Chinese manufacturing plant, both of which competed with Sunpack Pacific. Id. at ¶¶75-77.

Levi also began defaming Sunpack Pacific, Steven Dry, Dry Enterprises, and Hazneci to customers and suppliers in order to harm their business reputations and divert their customers. Id. at ¶78. Specifically, Levi sent an email to two Chinese manufacturing partners of Sunpack Pacific stating in part that Dry and Hazneci were being fired by Sunjut for acting unethically. Id. at ¶¶79-80. Levi also noted that all business agreements would remain the same, but the contact person would change. Id. Dry asserts that these statements are false and that Levi and Sunjut knew the manufacturers had a business relationship with Sunpack Pacific, Dry, and Hazneci when they made the statements. Id. at ¶¶81-83.

Levi also sent a letter to SuperPacking, another supplier of Sunpack Pacific, falsely stating that Sunjut's lawyers were attempting to force Sunpack Pacific to stop using the Sunjut name, accusing Sunpack Pacific of stealing the name, and claiming that "their greed has blinded them. Id. at ¶¶84-85. Levi also encouraged Superpacking to refuse to support Sunpack Pacific regarding customers introduced under the Sunjut umbrella. Id. at ¶86.

Following these actions, Sunpack Pacific's lawyers sent a cease and desist letter to Levi and Sunjut. Id. at ¶88. On January 5, 2007, Sunpack Pacific adopted a resolution declaring failure of consideration by Sunjut A.S. and thus declaring that it was never a member of Sunpack Pacific. Id. at ¶89. Levi and Sunjut, however, continued to make defamatory statements about Sunpack Pacific and Dry to their manufacturers and customers in order to harm Dry and Sunpack Pacific and divert their customers. Id. at ¶¶91-97. Specifically, on February 21, 2007, Labbe sent a letter to a Dry Enterprises customer stating that "Steve has opened his own company in China, without permission has converted many bags from Sunjut to this company of his." Id. at ¶93.

In addition, Patriquin, at Sunjut U.S.A.'s direction, sent an email to a Dry Enterprises customer "informing them that their shipment had arrived and that all invoices would be on Sunjut letterhead from now on." Id. at ¶98. The customer responded that its contract was with Dry Enterprises and that it did not want to be pulled into the middle of a dispute. Id. Similarly, Ertoklar, a customer service representative contacted a Sunpack Pacific customer to state that it should send payments directly to Sunjut U.S.A.'s offices, and Cinar contacted Sunjut A.S.'s Europe branch offices and told them not to provide assistance to Dry Enterprises or Hazneci. Id. a¶t 104-105.

STANDARD OF REVIEW

When considering a motion to dismiss under Rule 12(b)(6), a court must accept as true all facts alleged in the complaint and construe all reasonable inferences in favor of the plaintiff. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A plaintiff need not allege all facts involved in the claim. See Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994). However, in order to survive a motion to dismiss for failure to state a claim, the claim must be supported by facts that, if taken as true, at least plausibly suggest that the plaintiff is entitled ...


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