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
4
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