Wood v. Little Caesar, Ilitch, Shemami, et al - First Amended Complaint as Filed
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Transcript of Wood v. Little Caesar, Ilitch, Shemami, et al - First Amended Complaint as Filed
STATE OF MICHIGAN
rN THE 3RD JUDTcTAL crRcurr couRT
LISA WOOD,Plaintiff
V.
MICHAEL ILITCH, JIMMY SHEMAMI,ILITCH HOLDINGS, INC A
Michigan Corporation, RICHARD FENTONand, LITTLE CAESAR ENTERPRISES, lNC.a Michigan Corporation
Jointly and severallyDefendants
9llood, l,laa v IJITTIII CEA8AR8 INC ,Hon. John H Gillls, Jr. 1211212009
| fl]il lilt ilil illlil llil rfi il ilil lillt rillt lllt ililil ilt ilril ilrl00.0t8s37.c2
Douglas A. McKinney (P35430)Attorney for PlaintiffP. O. Box 214145Auburn Hills, Michigan 48321-4145(248) 587-5075
FIRST AMENDED COMPLAINT
NOW COMES Plaintiff LISA WOOD by and through her attorney Douglas A.
McKinney, hereby brings the following complaint against defendants MICHAEL lL|TCH,
JIMMY SHEMAMI, ILITCH HOLDINGS, INC a Michigan Corporation, RICHARD
FENTON and, LITTLE CAESAR ENTERPRISES for (i) breach of contract; (ii)
conspiracy (iii) misappropriation of trade secrets; (iv) breach of fiduciary duties; and (v)
negligence in failing to protect or defend the trade secret and intellectual property of
Plaintiff Lisa Wood. in support thereof avers as follows:
JURISDIGTION AND VENUE
1. Defendant, Michael llitch is a resident of the city of Bingham Farms, County of
Oakland, State of Michigan.
2. Plaintiff's action arises out of defendant LITTLE CAESAR ENTERPRISES, lNC,
its agents, owners and employee's of their fiduciary and contractual duties owed
to Plaintiff, Lisa Wood.
Plaintiff, Lisa Wood is an individual currently residing in the Township of
Harrison, County of Macomb Michigan.
Defendant Jimmy Shemami for all times relevant herein was an employee of
Corporate Defendant and was employed in the City of Detroit, County of Wayne,
State of Michigan.
Defendant ILITCH HOLDINGS, lNC. a Michigan Corporation with its principal
place of business located in the City of Detroit, County of Wayne,
State of Michigan.
Defendant, Richard Fenton is an employee of Corporate Defendant and is
employed in the City of Detroit, County of Wayne State of Michigan.
Defendant, Little Caesar Enterprises, Inc. is a corporation with its principal place
of business located in the City of Detroit county of Wayne State of Michigan.
The, defendants' acts giving rise to this dispute occurred at least in part within
the City of Detroit, County of Wayne, State of Michigan and, on information and
belief defendants regulady conduct business within the City of Detroit, County of
Wayne, State of Michigan. Venue is therefore proper in this Court.
Although the harm caused by Defendants' wrongful acts is not fully
ascertainable, Plaintiff's damages i exceed $25,000, exclusive of costs, interest
and attorney fees.
3.
4.
5.
6.
7.
8.
9.
10. This, Court has jurisdiction since this action is between parties of the same state
and the amount in controversy exceeds $25,000,
COMMON ALLEGATIONS
11. Plaintiff, Lisa Wood developed a restaurant concept that involved a unique
process of selling pizza drive through on the water.
12. At the insistence of Ronald llitch, son of Defendant Michael llitch, this concept
was presented to the owner of Corporate Defendant Michael llitch's attorney by
Plaintiff.
13. On or about January/February 2004 the information concerning Plaintiff's
marketing and business strategies, and various other intellectual properties were
described to the agents and attorneys of Defendant Little Caesars including its
president David Scarvano and attorney Jay Bielfield,
14. In addition Plaintiff provided Defendant Little Caesars art work and proposed
menus for her business concept "Pizza On The Water" and/or "Pizza By Boat"
through its trademark attorney of Corporate Defendant Martin Caruso.
15. This, information concerning was highly confidential and not known in the public
domain.
16. The, Defendants made specific promises to the Plaintiff Lisa Wood that including
but not limited to the concept, slogans and artwork created by Plaintiff would be
protected by the use of trademark and/or copyright laws for future use and
Plaintiff executed that agreement.
17. The agreement was reduced to writing by the Defendant.
18. The Plaintiff accepted and the Defendants did execute said agreement.
19. That in reasonable reliance upon these expressed promise, and the covenants
contained in the written agreements the Plaintiff described in detail her concept,
the slogans she had developed and turned over to Defendant the unique artwork
created in her own hand,
It had been represented by Defendants that all necessary legal steps had been
or would be taken to secure trademark and/or copyright protection for this
intellectual property.
Plaintiff justifiable relied upon the representations aforesaid.
Defendants represented and agreed as follows:
a. The concept described as "Pizza On The Water" and/or "Pizza By Boat"would be promoted as a new marketing method for which the Plaintiff wouldearn royalties as other corporate stores and franchisee stores;
b. Plaintiff provided slogans to be used in advertisement and promotion to wit:"Ahoy! Little Caesars is afloat now you can get pizza pizza by boat.", and"Now you can get a boatload of Pizza.";
c. Plaintiff was to receive at no costs at least four franchise locations in Michiganto her for the purpose of further marketing and development of the concept"Pizza On The Water" and/or "Pizza By Boat" and utilization of the slogansand the rights to franchise stores in other states such as Florida.
d. In consideration and performance of the terms of the agreement of thisagreement, Plaintiff was to and did assign her trademark and/or copyrightrights to Corporate Defendant as agreed.
Thereafter, at the direction of Defendants' agent David Scarvano Plaintiff began
study to determine the water traffic on the waterways in the Detroit Metro area
and to search for appropriate locations for the franchise stores to utilize the
"Pizza On The Water" and/or "Pizza By Boat" concepts.
fn July 2004 the full commitment of support was obtained from Defendant
Michael llitch that the concept would proceed.
20.
21.
22.
23.
24.
25. Shortly after I this commitment the relationship between the Plaintiff and Ronald
llitch terminated.
26. Due to injury and trauma the Plaintiff was unable to continue to actively pursue
the opening of the franchise stores of Defendant and could no longer continue to
aid in the development of the concept "Pizza On The Water" and/or "Pizza By
Boat" for a period of time.
27. In July 2004 the full commitment of support was obtained from Defendant
Michael llitch that the concept would proceed.
28. After a substantial period of recovery Plaintiff inquired as to the current status of
the agreements she had made with Defendants.
29. Plaintiff was informed that Defendant was balking at going fonvard with the
agreements made
30 Thereafter, Plaintiff learned that a competing pizza company began to utilize the
sales and marketing concepts presented to Defendants including a nearly
identical slogan and menu.
31. Plaintiff demanded that the Defendant defend the intellectual property assigned
to Defendant.
32. Defendants responded to this demand with inaction.
33. Plaintiff was informed that the Defendant may not have protected the unique
marketing process, her slogans and/or art work as represented
34. Plaintiff is fearful that Defendant may not have properly protected the intellectual
property she assigned to Defendant and that she may now be left with no ability
to benefit from the same.
35. Upon information and belief in August 2004 Defendants through their agents
seized items of personal property and the same have not been returned.
COUNT I
BREACH OF CONTRACT
Plaintiff, Lisa Wood re-alleges each and every allegation contained in paragraphs
1 through 35, inclusive, of its Complaint as though completely set forth herein.
Plaintiff and Defendants entered into a contract for the protection, development
and marketing of the business concept "Pizza On The Water" and/or "Pizza By
Boat".
That Plaintiff has performed all of her contractual obligations including but not
limited to disclosing and assigning the marketing concepts, intellectual property
and trademark and copy write material.
The Defendants have breached the contract by failing to protect the intellectual
property of the Plaintiff providing four (4) fully functioning franchises with the
"Pizza On The Water" and/or "Pizza By Boat" and marketing and promoting the
concept to other franchisees.
As a proximate result of Defendants' breach of the contract Plaintiff has been
damaged including but not limited to the following failure to commence the
business "Pizza On The Water" and "Pizza By Boat" protect by trademark and/or
copyright the intellectual property transferred, lost profits, lost royalties.
That the amount in controversy exceeds Twenty Five Thousand and 00/100
($25,000.00) dollars and is otherwise within the jurisdiction of this Court.
36.
37.
38.
39.
40.
41.
WHEREFORE, Plaintiff requests a judgment in whatever amount against the
Defendants as shall be found from the proofs in excess of Twenty Five Thousand and
00/100 ($25,000.00) dollars plus cost interest and attorney fees and such other relief
this Court shall deem just necessary and proper.
COUNT II
CIVIL CONPIRACY
42. Plaintiff re-alleges each and every allegation contained in paragraphs 1 through
41, inclusive, of its Complaint as though completely set forth herein.
43. That for some time prior to August 2, 2004 with the permission of Ronald llitch
the Plaintiff was residing his Troy, Michigan home.
44. At the same time Plaintiff also maintained a separate residence in the City of
West Bloomfield, Michigan.
45. That on or about August 2, 2004 the Plaintiff was removed from the Troy,
Michigan home of Ronald llitch leaving substantial personal belongings including
copies of the executed written contracts with the Defendants.
46. Also contained in the Troy, Michigan home was evidence of a crime that had
been committed bY Ronald llitch.
47. That on or about August 2, 2004 upon information and belief the Defendants
through their agents, servants and/or employees refused entry into the home of
Ronald llitch by the proper authorities.
48. That for approximately 3 days thereafter upon information and belief the personal
property of the Plaintiff was examined, secreted and or destroyed by Defendants
49.
including but not limited to papers, agreement and documentary evidence
germane to this lawsuit.
The Defendants have asserted that the written contracts executed by the parties
never existed.
50. Upon information and belief the intent, motive and ulterior purpose of the denial
of the existence and the execution of the agreements by the parties aforesaid
was and is as follows:
a. to conceal the full extent of the intentional torts, and/or crimescommitted by Ronald llitch.
b. to establish the pretext of deniability on the date and time aforesaidas to the agreements of the parties; and
c. to establish a defense to any legal remedy anticipated to be soughtby the Plaintiff based on the breach by the Defendants of theagreement of the parties.
51. That the willful and intentional acts of the Defendants demonstrate an
agreement, or preconceived plan, to do an unlawful act, to wit: to secure the
Troy, Michigan home of Ronald llitch and conceal and or destroy property and
documentary evidence owned by the Plaintiff to deprive her of her contractual
and legal rights.
52. The actions of the Defendants seek to accomplish a legal purpose by illegal
means or in the alternative an illegal purpose by legal means.
53 That as a direct and proximate result of the actions taken by the Defendants the
Plaintiff has been damaged including but not limited to the following ways:
a. Depravation of ProPertY rightsb. The loss or destruction of said propertyc. The loss of evidence to pursue her legal remedies.
WHEREFORE, Plaintiff requests a judgment in whatever amount as shall be
found from the proofs in excess of Twenty Five Thousand and 00/100 ($25,000.00)8
dollars plus cost interest and attorney fees and such other relief this Court shall deem
just necessary and proper.
couNT lll
PROMISSORY ESTOPPEL
54. Plaintiff re-alleges each and every allegation contained in paragraphs 1 through
53, inclusive, of its Complaint as though completely set forth herein.
55 That as a result of promises made by Defendant Plaintiff revealed and assigned
intellectual property including a business concept, slogans, research and art work
developed by her.
56. Plaintiff reasonably relied upon the promises and representations of the
Defendants.
57. Defendants promises and representations were either false when made or
became false by their own actions.
58. As a proximate result of Defendants promises and representations the Plaintiff
has been and will continue to be irreparably injured since a competitor has began
use of the intellectual property developed by Plaintiff and upon information and
belief Defendants failure to protect the same.
59. That the amount in controversy exceeds Twenty Five Thousand and 00/100
($25,000.00) dollars and is otherwise within the jurisdiction of this Court.
WHEREFORE, Plaintiff requests a judgment in whatever amount as shall be found from
the proofs in excess of Twenty Five Thousand and 00/100 ($25,000.00) dollars plus
cost interest and attorney fees and such other relief this Court shall deem just
necessary and proper.
COUNT IV
BREACH OF FIDUCIARY DUTIES
60. Plaintiff re-alleges each and every allegation contained in paragraphs 1 through
59, inclusive, of its Complaint as though completely set forth herein.
61. The Defendants came into possession of the intellectual property of the Plaintiff
as such Defendants owed the following fiduciary duties to Plaintiff:
a. A duty to protect and not allow disclosure of Plaintiff's intellectualproperty and confidential information to a competitor; andb. To utilize the intellectual property for the benefit of Defendants andPlaintiff.
62. Defendants have breached each and every one of the foregoing duties:
a. By allowing the intellectual property to be disclosed or utilized by acompetitor.
b. By failing to take action to protect Plaintiff's intellectual property from useby a comPetitor
c. By failing to utilize and develop the intellectual property for the benefit ofthe Plaintiff.
63. As a direct and proximate result of Defendant's breach of his fiduciary duties
owed to Plaintiff has suffered and will continue to suffer irreparable harm and
damages including but not limited to loss profits and lost royalties.
WHEREFORE, Plaintiff requests a judgment against the Defendants in whatever
amount as shall be found from the proofs in excess of Twenty Five Thousand and
00/100 ($25,000.00) dollars plus cost interest and attorney fees and such other relief
this Court shall deem just necessary and proper.
10
COUNT V
NEGLIGENCE
64. Plaintiff re-alleges each and every allegation contained in paragraphs 1 through
63, inclusive, of its Complaint as though completely set forth herein.
65. Defendants owed a duty to the Plaintiff to perform business function in keeping
with industry standards.
66. Defendants knew that the Plaintiff was relying upon the Defendants to protect her
intellectual property and assumed the duty to so protect the same.
67. Defendants breached their duties including but not limited to failing to protect and
or defend the intellectual property of Plaintiff.
68. As a direct and proximate result of the negligence of the Defendants the Plaintiff
has been damaged including but not limited to the use by a competitor of the
intellectual property of the Plaintiff.
WHEREFORE, Plaintiff requests a judgment in whatever amount as shall be
found from the proofs in excess of Twenty Five Thousand and 00/100 ($25,000.00)
dollars plus cost interest and attorney fees and such other relief this Court shall deem
just necessary and proper.
Doug Kinney (P354Attorneys for PlaintiffP. O. 8ox214145Auburn Hills, Ml 48321-4145(248) 587-5075
ll
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Dated: January 22,2009