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Tripp v. Pickens

United States District Court, W.D. Louisiana, Shreveport Division

May 1, 2019


          MARK L. HORNSBY, Judge



         Plaintiffs Leo Tripp; his father, Jimmy Tripp; and their business associate, Steve Stone, brought this action against Defendants Richard Pickens (“Pickens”) and Richart Distributors d/b/a Flomore Products (“Flomore”), alleging that they failed to honor a contract to split the profits on a solar-powered oil field pump. Plaintiffs assert claims of breach of contract, promissory estoppel, detrimental reliance, and violations of the Louisiana Unfair Trade Practices Act (“LUTPA”). They seek damages and declaratory relief.

         Defendants move the Court for summary judgment [Doc. No. 96] on (1) Plaintiffs' claim for revenue from future sales of the solar-powered pump as an element of damages and (2) all of Plaintiffs' claims against Flomore and Pickens brought pursuant to LUTPA. Plaintiffs oppose the motion. [Doc. No. 100]. Defendants have filed a reply in support of their motion. [Doc. No. 106].

         For the following reasons, the Motion for Partial Summary Judgment is GRANTED IN PART AND DENIED IN PART.


         While not conceding that a contract existed, for purposes of this motion, Defendants contend that, even if there was a contract and even if the contract were breached, the undisputed facts entitle them to summary judgment as requested.

         It is undisputed that in October 2013, Plaintiffs met representatives of the Defendants at a trade show for oil field supply products. Ultimately, the relationship between Plaintiffs and Defendants developed to the point that they discussed the idea of launching a new product, specifically a solar-powered chemical injection pump to be used in oil-and-gas-production.

         In April 2014, Pickens and Flomore Manager of Operations, Mitch Carey, flew from Oklahoma to Louisiana to meet with Plaintiffs. Plaintiffs contend that they demonstrated the prototype of the S2000 pump in Arcadia, Louisiana. They further contend that they entered into an oral agreement with Pickens whereby Plaintiffs would complete the design and development of the pump, and the pump would then be marketed and sold through Flomore. Plaintiffs further contend that the parties agreed that they would split the profits 50/50 from sales of the pump, which became known as the Flomore S2000 Solar Pump (“the S2000”). Even if this oral agreement or contract existed, it is undisputed that it had no specified term.

         After this meeting in Louisiana, Plaintiffs traveled to Oklahoma several times to work on the S2000's design and production. They met and worked with a number of Flomore employees and machine shop. Plaintiffs contend that in 2014 Flomore began marketing and selling the S2000 that they helped design without paying them 50% of the profits.

         Plaintiffs further contend that, after the instant lawsuit was filed, they learned in discovery that Defendants secretly applied for a provisional patent for the S2000 in 2014 and a non-provisional patent one year later. Plaintiffs further contend that Flomore failed to include them as inventors and wrongfully hid the patent application.

         On or about April 23, 2018, following a failed mediation between the parties and shortly before the then-scheduled trial date, Pickens sent a letter to Plaintiffs notifying them that Flomore was terminating “the disputed contract, ” pursuant to Louisiana Civil Code Article 2024, effective May 31, 2018. He followed up with a second letter on May 24, 2018, confirming the alleged termination and notifying them that as of June 1, 2018, Flomore would no longer manufacture or sell the Flomore S2000 pump or any other pump that contains any parts that were the subject of the patent application. Finally, Pickens indicated that, at that time, the patent had not issued, but that he was prepared “to tender” the patent rights by assignment. [Doc. No. 96-5, Exh. C].


         A. Standard of Review

          Under Federal Rule of Civil Procedure 56(a), A[a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the initial burden of informing the court of the basis for its motion by identifying portions of the record which highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact cannot be . . . disputed must support the assertion by . . . citing to particular parts of materials in the record . . .). A fact is “material” if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.

         If the moving party can meet the initial burden, the burden then shifts to the nonmoving party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the Court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Anderson, 477 U.S. at 248).

         B. Claim for Damages from Future Sales of the Flomore S2000

          First, Defendants move for summary judgment on Plaintiffs' claims for damages from the future sales of the Flomore S2000. Specifically, Defendants argue that Plaintiffs are barred from seeking damages for sales of the Flomore S2000 after May 31, 2018, because any alleged oral contract was of indefinite duration, that they properly terminated the alleged contract with Plaintiffs, ...

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