JORDAN OUTDOOR ENTERPRISES LTD v. J&M CONCEPTS LLC

Filing 116

ORDER terminating 88 Motion to Strike. Realtree's notice of non-party fault is moot in light of the consolidation of the two civil actions and the issues that remain to be decided at trial based on the claims that are already pending. The motion to strike the notice of non-party fault is terminated. Ordered by US DISTRICT JUDGE CLAY D LAND on 02/17/2021 (CCL)

Case 4:18-cv-00126-CDL Document 116 Filed 02/17/21 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
*

JORDAN OUTDOOR ENTERPRISES, LTD.,
Plaintiff,

*

vs.

*

J&M CONCEPTS, LLC,

*

Defendant

*
*

COUNTRY BREEZE VENTURES, LLC,
Plaintiff,

*

vs.

*

JORDAN OUTDOOR ENTERPRISES, LTD.,

CASE NO. 4:18-CV-126 (CDL)

*
*

Defendant.

O R D E R
J&M

Concepts,

LLC

(“J&M”)

obtained

a

license

to

use

intellectual property owned by Jordan Outdoor Enterprises, Ltd.
(“Realtree”) on J&M’s energy drink containers.

Realtree later

permitted the Coca-Cola Company to use some of the same Realtree
intellectual
Shortly

property

after

the

on

Mello

Yello

Realtree-Mello

soft

Yello

drink

campaign

containers.
started,

J&M

assigned its interest in the Realtree license to Country Breeze
Ventures, LLC (“Country Breeze”).
Realtree
Agreement.

any

royalties

that

Country Breeze did not pay

were

due

under

the

License

Country Breeze filed a breach of contract action,

Case 4:18-cv-00126-CDL Document 116 Filed 02/17/21 Page 2 of 4

asserting

that

Realtree

breached

the

License

Agreement’s

exclusivity provision by continuing the Mello Yello campaign and
that Country Breeze’s nonperformance should be excused by virtue
of Realtree’s breach.

Realtree brought a breach of contract

counterclaim against Country Breeze, arguing that it did not
violate the License Agreement’s exclusivity provision and that
Country Breeze thus owes it royalties due under the License
Agreement.

The

Court

concluded

that

genuine

fact

disputes

precluded summary judgment on both of these breach of contract
claims.
Outdoor

See generally Country Breeze Ventures, LLC v. Jordan
Enterprises,

Ltd.,

No.

4:18-CV-172

(CDL),

2020

WL

1876252 (M.D. Ga. Apr. 15, 2020).
Realtree brought a separate action against J&M, asserting
among

other

Agreement.

things

that

J&M

breached

§ 29.2

of

the

License

Realtree claims that J&M was aware of the Mello

Yello campaign and assigned the License Agreement to Country
Breeze without disclosing the Mello Yello deal.

Realtree argues

that this action amounts to bad faith that diminished Country
Breeze’s

ability

Agreement.

to

meet

its

obligations

under

the

License

Realtree seeks damages from J&M that were caused by

this alleged breach of § 29.2.

J&M, on the other hand, brought

a counterclaim against Realtree for misrepresentation, asserting
that Realtree misrepresented the scope of the Mello Yello deal,
that

J&M

reasonably

relied

on

2

that

misrepresentation

in

Case 4:18-cv-00126-CDL Document 116 Filed 02/17/21 Page 3 of 4

consenting

to

the

Mello

damages as a result.

Yello

deal,

and

that

J&M

suffered

The Court found that genuine fact disputes

precluded summary judgment on both Realtree’s § 29.2 breach of
contract claim and on J&M’s misrepresentation counterclaim.

See

generally Jordan Outdoor Enterprises, Ltd. v. J&M Concepts, LLC,
No. 4:18-CV-126 (CDL), 2020 WL 2449278 (M.D. Ga. May 12, 2020).
After the Court decided both summary judgment motions, the
Court ordered the parties to show cause why the two actions
should not be consolidated for trial under Federal Rule of Civil
Procedure

42.

The

parties

all

agreed

that

the

two

actions

should be consolidated for trial, so the Court entered an order
consolidating them.
cv-126.
after

Order (July 31, 2020), ECF No. 85 in 4:18-

Before the Court entered its order of consolidation but
it

was

clear

that

all

the

parties

consented

to

consolidation, Realtree filed a notice of non-party fault in the
Country Breeze action, requesting apportionment under O.C.G.A.
§ 51-12-33.

Notice of Non-Party Fault (July 30, 2020), ECF No.

62 in 4:18-cv-172.

That notice informed Country Breeze that

Realtree sought to argue that J&M breached a duty in tort that
it owed to Country Breeze and that J&M is responsible for any
damages

Country

actions

were

Breeze

seeks

consolidated

for

from

Realtree.

trial,

Country

After
Breeze

the

two

filed

a

motion to strike Realtree’s notice of non-party fault, arguing

3

Case 4:18-cv-00126-CDL Document 116 Filed 02/17/21 Page 4 of 4

that

Georgia’s

apportionment

statute

does

not

apply

to

the

contract dispute between Country Breeze and Realtree.
The
Georgia’s

Court

finds

it

apportionment

unnecessary

statute

applies

to
in

determine

whether

contract

actions

because Realtree’s notice of non-party fault is now moot.

The

two actions have been consolidated for trial, and Realtree still
has its claim against J&M under § 29.2 of the License Agreement.
In resolving the breach of contract claims between Realtree and
Country Breeze, Realtree’s claim against J&M under § 29.2 of the
License Agreement, and J&M’s misrepresentation claims against
Realtree,

the

jury

will

necessarily

determine

the

fault

and

damages attributable to each party in this consolidated action.
Thus, the issues contemplated by the notice of non-party fault
will be litigated at trial based on the claims that are already
pending.

For these reasons, the Court finds that Realtree’s

notice of non-party fault is moot, and Country Breeze’s motion
to strike it (ECF No. 88 in 4:18-cv-126) is terminated.
IT IS SO ORDERED, this 17th day of February, 2021.
s/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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