JUUL LABS, INC. v. 4X PODS et al

Filing 263

OPINION. Signed by Judge Kevin McNulty on 1/7/2021. (ams, )

Case 2:18-cv-15444-KM-MAH Document 263 Filed 01/07/21 Page 1 of 15 PageID: 6008

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JUUL LABS, INC.,
Plaintiff,
v.

Civ. No. 18-15444 (KM) (MAH)

4X PODS, EONSMOKE, LLC d/b/a
4X PODS, GREGORY GRISHAYEV,
MICHAEL TOLMACH, and JOHN
DOES 1–50,

OPINION

Defendants.
KEVIN MCNULTY, U.S.D.J.:
Before the Court is the motion (DE 201) 1 of Defendants Eonsmoke, LLC,
Gregory Grishayev, and Michael Tolmach (collectively “Defendants”) to dismiss
the complaint as against Grishayev and Tolmach.
This Opinion is one in a series; the facts and procedural history are well
known to the parties. Juul Labs, Inc. initiated this trademark infringement
action on October 30, 2018 through its filing of a Verified Complaint (DE 1). 2

1
Citations to the record will be abbreviated as follows. Citations to page numbers
refer to the page numbers assigned through the Electronic Court Filing system, unless
otherwise indicated:

“DE” = Docket entry number in this case.
“Am. Compl.” = Amended Complaint (DE 187)
As explained in the February 13, 2020 Opinion, following the Complaint, the
parties submitted a consent preliminary injunction, which I ordered on December 6,
2019. (DE 29). Defendants agreed to be preliminary enjoined from:
2

a) Directly or indirectly adopting, using, registering, or seeking to
register any trademark, service mark or other type of mark, material,
company, business or domain name, or other name, that would cause a
likelihood of confusion with, tarnish, dilute, cause blurring, lessen the
significance or value of, or otherwise infringe JLI's trademarks, trade dress
or copyrights, as alleged in the Verified Complaint. Included within the
meaning of a likelihood of confusion and infringement would be any mark,

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To freeze Eonsmoke’s assets pending a final judgment, Juul moved (DE 110)
for injunctive relief. I initially denied that motion, concluding that while some
claims had a likelihood of success on the merits, it was too early to assess
others, and that an asset freeze was too broad a remedy. Juul Labs, Inc. v. 4X
PODS, 439 F. Supp. 3d 341, 360-61 (D.N.J. 2020), appeal dismissed, 2020 WL
5240430 (3d Cir. July 24, 2020) (“Juul I”). Following an amendment to the
Complaint, and further development of the factual record, Juul renewed its
motion (DE 232), which I granted on December 22, 2020 (DE 251; DE 252).
Now, I address Defendants’ motion to dismiss the action against individual
defendants Grishayev and Tolmach pursuant to Federal Rules of Civil
Procedure 12(b)(2) (lack of personal jurisdiction), 12(b)(4) (insufficient process),
12(b)(5) (insufficient service of process) and 12(b)(6) (failure to state a claim
upon which relief can be granted). (DE 201).
For the reasons provided here in, I will deny Defendants’ motion.
I.

Summary
As background, I reproduce here the summary of facts from the

December 22 Opinion (although I confine my analysis to the allegations of the
Amended Complaint where appropriate).
name, package, or product that would cause a false or misleading
association, connection, sponsorship, or affiliation with or endorsement by
JLI;
b) Manufacturing, shipping, delivering, holding for sale, advertising,
Marketing, promoting, displaying, transferring or otherwise moving,
storing, distributing, renting, or otherwise disposing of, in any manner
(including *347 through operation of any website), the 4X Product and/or
related products referenced in the Verified Complaint, or colorable
imitations thereof which use the Juul Pod Logo Trademark, Juul
Packaging Trade Dress, and/or Copyrighted Works (as defined in the
Verified Complaint);
c) Further infringing JLFs trademarks, trade dress and copyrights,
and from injuring and damaging JLI's goodwill and reputation; and
d) Doing any act or thing likely to confuse, mislead, or deceive
others into believing that Defendants, or any of them and/or their
products or services emanate from or that Defendants themselves are
connected with, sponsored by endorsed by, or approved by or otherwise
affiliated with JLI.
(DE 29 at 3–4).

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Juul developed an e-cigarette device and now dominates that
market. Juul I, 439 F. Supp. 3d at 345. One component of that
device is a pod filled with a proprietary blend of, among other things,
liquid nicotine and flavoring. Id. A user inserts the pod into the
device (which resembles a USB stick) and inhales. The device then
vaporizes the liquid in the pod, allowing the user to “smoke” or “puff”
the vapor (hence the term “vaping”). (Am. Compl. ¶ 2; see generally
Food & Drug Admin., “Vaporizers, E-Cigarettes, and other Electronic
Nicotine
Delivery
Systems
(ENDS)”
(Sept.
17,
2020),
https://www.fda.gov/tobacco-products/products-ingredientscomponents/vaporizers-e-cigarettes-and-other-electronic-nicotinedelivery-systems-ends.) Juul makes pods, which it sells either as a
component of Juul kits that include a device, or separately. (Thomas
Rep. at 7.) Juul trademarked the word “Juul” and its logo and uses
a distinctive packaging with those trademarks. (Am. Compl. ¶¶ 24,
26, 28, 30, Ex. 1, 2.)
Eonsmoke, an e-cigarette company ran by Gregory Grishayev
and Michael Tolmach, developed its own pods, which are compatible
with Juul devices. 3 To market those pods, Eonsmoke relied mostly
on social media like Instagram, Twitter, Facebook, and Tumblr.
(Tolmach Tr. at 74:6–8, 166:1–6, 184:1–7; Grishayev Tr. at 283:16–
23.) Eonsmoke’s posts mostly used the same format: (1) an image of
the Eonsmoke product, which often included a label that the pod
was “Juul compatible,” accompanied by (2) a short caption
describing the product or inviting the viewer to purchase it, followed
by (3) hashtags. (Thomas Rep. at 14–21.)
A hashtag consists of the pound/number symbol (#), followed
by text. When a social media user adds a hashtag to a post, the
hashtag, which is hyperlinked, acts as a tag. This tagging has two
consequences: First, if a viewer of the post clicks the hashtag, the
social media platform will take the viewer to a page containing any
other posts with that hashtag. Second, if a user searches that
hashtag through the platform’s search engine, the platform will take
the user to the page containing any posts with that hashtag.
Hashtags thus have an indexing or cataloguing function, “allow[ing]
people to easily follow topics they are interested in” and “discover
content and accounts based on [their] interests.” Twitter, “How to
use hashtags,” https://help.twitter.com/en/using-twitter/how-touse-hashtags (last visited Dec. 12, 2020). In other words, hashtags
provide a way to link individual posts to larger topics and
conversations.
When Eonsmoke entered the market, it included hashtags of
other e-cigarette brands in its posts. It used “Juul” the most.
Eonsmoke also created a subsidiary brand called “4X Pods.” The 4X
products and marketing are encompassed by this discussion.
3

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Tolmach and Grishayev explained that they used “Juul” in hashtags
to “promote” Eonsmoke. (E.g., Tolmach Tr. at 74:6–8; Grishayev Tr.
at 283:16–23.) Indeed, Eonsmoke recognized that, given the
function of a hashtag, the hashtags would allow Eonsmoke’s posts
to be found via the Juul name. (Tolmach Tr. at 214:8–22.)
To illustrate the form of Eonsmoke’s social media posts, I
reproduce two representative examples, one from Instagram and one
from Facebook, which I will call Post 1 (DE 231-2, Ex. 14, at 3 (sour
berry flavor)) and Post 2 (Thomas Rep. at 19 (grape flavor)):

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Not long after Eonsmoke began this marketing strategy, its
revenues shot up—from $2.3 million in 2017, to $30 million in 2018,
to $90 million in 2019. (Thomas Rep. at 26.) Also during this time,
Eonsmoke developed packaging that resembled Juul’s and had
retailers display the Juul and Eonsmoke products near one another.
Juul I, 439 F. Supp. 3d at 346.
(DE 251 at 2-5)
In the Amended Complaint, Juul asserted claims against Defendants for
trademark infringement, trade dress infringement, and unfair competition
under the Lanham Act, 15 U.S.C. §§ 1114,1116, 1117, 1125(a); copyright
infringement arising under the Copy Right Act of 1976, 17 U.S.C. §§ 101 et
seq.; trademark infringement and unfair competition under N.J. Stat. Ann. §
56:4-1 and state common law; and tortious interference with economic
advantage. (Am. Compl. ¶1).
Defendants raise three arguments for dismissal of the action as against
individual defendants Grishayev and Tolmach: (1) this Court lacks personal
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jurisdiction over Tolmach, who resides in California (Am. Compl. ¶13); (2) Juul
failed to serve Tolmach with sufficient process; and (3) Juul cannot “pierce the
corporate veil” to assert liability against either Grishayev or Tolmach. (DE 2012 at 3). I will address each in turn.
II.

Discussion
a. Personal Jurisdiction
To assess whether a court has personal jurisdiction over a defendant, a

district court must undertake a two-step inquiry. IMO Indus., Inc. v. Kiekert,
AG, 155 F.3d 254, 258-59 (3d Cir. 1998). First, the court is required to use the
relevant state’s long-arm statute to see whether it permits the exercise of
personal jurisdiction. Id.; Fed. R. Civ. P. 4(k). “Second, the court must apply
the principles of due process” under the federal Constitution. WorldScape, Inc.
v. Sails Capital Mgmt., No. 10-cv-4207, 2011 WL 3444218, at *3 (D.N.J. Aug. 5,
2011) (citing IMO Indus., 155 F.3d at 259).
In New Jersey, the first step collapses into the second because “New
Jersey’s long-arm statute provides for jurisdiction coextensive with the due
process requirements of the United States Constitution.” Miller Yacht Sales,
384 F.3d at 96 (citing N.J. Ct. R. 4:4-4(c)). Accordingly, personal jurisdiction
over a non-resident defendant is proper in this Court if the defendant has
“certain minimum contacts with [New Jersey] such that the maintenance of the
suit does not offend traditional notions of fair play and substantial justice.”
Provident Nat’l Bank v. Cat Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir.
1987) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (internal
quotation marks omitted).
A Rule 12(b)(2) motion, such as the motion made by Defendants here, “is
inherently a matter which requires resolution of factual issues outside the
pleadings, i.e., whether in personam jurisdiction actually lies. Once the defense
has been raised, then the plaintiff must sustain its burden of proof in
establishing jurisdictional facts through sworn affidavits or other competent
evidence.” Patterson v. FBI, 893 F.2d 595, 603-04 (3d Cir. 1990) (internal
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quotation marks omitted) (quoting Time Share Vacation Club v. Atl. Resorts,
Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984)).
There are two kinds of personal jurisdiction: general and specific.
O’Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 (3d Cir. 2007). I find
that both apply here.
i.

Specific Jurisdiction

Specific jurisdiction arises from the defendant’s forum-related activities
that give rise to the plaintiffs’ claims. The relevant analysis has three parts:
First, the defendant must have “purposefully directed [its] activities”
at the forum. Second, the litigation must “arise out of or relate to”
at least one of those activities. And third, if the prior two
requirements are met, a court may consider whether the exercise of
jurisdiction otherwise “comport[s] with ‘fair play and substantial
justice.’”
O'Connor, 496 F.3d at 317 (internal citations omitted); see also Strategic Prod.
& Servs., LLC v. Integrated Media Techs., Inc., No. CV1800694KSHCLW, 2019
WL 2067551, at *7 (D.N.J. May 10, 2019).
Here, Juul submits that Tolmach has purposefully directed his activities
to New Jersey in the following ways. Tolmach co-founded and located
Eonsmoke in New Jersey. (DE 203 at 10; DE 203-1 at 5, Tolmach Tr. 18:2-3).
Tolmach directed and controlled “the design of the infringing packaging for the
4X branded products (‘4X products’) that Eonsmoke imported and distributed
from its location in Clifton New Jersey,” (DE 203 at 10; see DE 203-1 at 7,
Tolmach Tr. 107:3-8 (Tolmach testifying that he provided input for the
packaging for the 4X products)). Tolmach used the Juul wordmark to promote
the 4X products which Eonsmoke imported, distributed, and sold from its
location in New Jersey. (DE 203 at 10; see 203-1 at 9, Tolmach Tr. 171:10-12
(“Q. You used the trademark Juul, J-u-u-l, to promote your EonSmoke
products, right? A., Yes.”); DE 203-5 at 5-7, Ex. 6 (Zeller Tr.) (office manager
Kelly Zeller explaining that third-party suppliers ship products to the
warehouse located in New Jersey and that orders are processed from the New
Jersey warehouse)). Tolmach directed and controlled Eonsmoke’s New Jersey
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employees in selling products that Defendants marketed using Juul’s
trademark and trade dress. (DE 203 at 11; DE 203-5 at 5, Zeller Tr. (Zeller
explaining that she discusses product shipment with Tolmach)). Juul also
submits that its claim arises from those aforementioned actions because their
claim arises from Defendants’ alleged infringement of its trademark and trade
dress by promoting and selling their product in New Jersey. (DE 203 at 11) And
Juul submits that exercising specific jurisdiction over Tolmach comports with
notions of fair play and substantial jurisdiction because Tolmach has earned
over $20,000,000 in profits as the co-CEO of a New Jersey company and
because Tolmach testified that he resides in New Jersey “for tax purposes”
because it has “a lower tax rate.” (DE 203 at 11-12; DE 203-1 at 6, Tolmach Tr.
28:15-17; id. 6:9-11).
Defendants submit that Juul’s assertions relate to the general business
of Eonsmoke and not any particular actions of Tolmach individually. I disagree.
First of all, a very substantial portion of the business of Eonsmoke is the
marketing of the pods, primarily through the internet. As outlined above, Juul
pinpointed Tolmach’s direction and control in the allegedly infringing products
(DE 203-1 at 7, Tolmach Tr. 107:3-8) and demonstrated that those products
are prepared for shipment in New Jersey (DE 203-5 at 5-7, Zeller Tr.). This
infringement action clearly arises from those activities because Juul alleges
that Tolmach directed the use of Juul’s trademarks and trade dress in
promoting and selling the 4X products. (Am. Compl. ¶¶ 13, 17, 53, 57, 132135). Finally, I find that exercising specific jurisdiction over Tolmach comports
with fair play and substantial justice because Tolmach chose to establish a
company in New Jersey and testified that he “lives” in New Jersey, if only for
“tax purposes,” whatever that may mean. Given the above I find this Court may
assert specific jurisdiction over Tolmach.
ii.

General Jurisdiction

In the alternative, I consider general jurisdiction. General jurisdiction
applies when an individual is domiciled in the forum state. Chanel, Inc. v.
Matos, 133 F. Supp. 3d 678, 684 (D.N.J. 2015) (“[A]n ‘individual's domicile,’ or
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home, constitutes the paradigmatic ‘forum for the exercise of general
jurisdiction.’”) (quoting Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)).
“[D]omicile is established by an objective physical presence in the state or
territory coupled with a subjective intention to remain there indefinitely.”
Washington v. Hovensa LLC, 652 F.3d 340, 344, 55 V.I. 1265, 1270 (3d Cir.
2011) “In determining an individual's domicile, a court considers several
factors, including ‘declarations, exercise of political rights, payment of personal
taxes, house of residence, and place of business.’” Park v. Tsiavos, 165 F.
Supp. 3d 191, 199 (D.N.J. 2016), aff'd, 679 F. App'x 120 (3d Cir. 2017)
(quoting Krasnov v. Dinan, 465 F.2d 1298, 1301 (3d Cir. 1972)) (laying out the
standard of establishing domicile in the context of diversity jurisdiction). Other
factors “may include location of brokerage and bank accounts, location of
spouse and family, membership in unions and other organizations, and driver's
license and vehicle registration.” Id. (internal quotation marks omitted) (quoting
McCann v. Newman Irrevocable Tr., 458 F.3d 281, 291 (3d Cir. 2006)).
Defendants contend that this Court does not have general personal
jurisdiction over Tolmach because “Tolmach has been domiciled exclusively in
California for eight years.” (DE 201-2 (citing DE 201-1, Tolmach Decl. ¶ 2 (“In
2012, I moved my residence from New York to California, where I have lived
ever since.”). He states that, although a 50% partner in Eonsmoke, of Clifton,
New Jersey, he handles the business from his home office in California, and
has come to New Jersey only a few times in the last eight years. In his
Declaration, Tolmach also stated that he never resided in New Jersey. (DE 2011, Tolmach Decl. ¶2).
Juul notes, however, that in his December 17, 2019 deposition, Tolmach
testified that he lives in New Jersey and splits his time through the year
between his New Jersey and California residences. (DE 203 at 9 (citing DE 2031, Ex. 1 (Tolmach Tr.) 5:16-21)). Specifically, Tolmach testified that “for tax
purposes” he lives in West New York, New Jersey. (DE 203-1 at 3, Tolmach Tr.
5:17-18). Juul also notes, inter alia, that Tolmach identified his New Jersey
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address on Eonsmoke’s 2018 federal tax return (DE 203-2 at 3, Ex. 2);
Tolmach testified that he pays taxes in New Jersey (DE 203-1 at 4, Tolmach Tr.
6:9-11); and Tolmach’s January 2020 bank statement lists his New Jersey
address (DE 167-5 at 2). (DE 203 at 9). Juul contends those factors establish
that Tolmach is domiciled in New Jersey and subject to this Court’s general
jurisdiction. (Id.) Defendants submit that Juul relies on “stale evidence” that is
not relevant to demonstrating his domicile at the time of institution of this
action. (DE 205 at 6). According to Defendants, “[t]he only evidence of
Tolmach’s relevant domicile is his declaration, which states unequivocally that
he lives in California.” (DE 205 at 6).
It is clear that Tolmach’s declaration that he never resided in New Jersey
contradicts the record evidence and directly contradicts his December 2019
deposition. To the extent that Defendants may be arguing that Tolmach
changed his domicile, “[p]roof of a change in domicile requires both residence
and intent to remain.” Bansal v. Chakrala, No. CIV. 11-1287, 2011 WL
2148825, at *4 (D.N.J. May 31, 2011). In assessing the change, a court can
only assess the evidence as it stands at the time the action was initiated; that
is, when the complaint was filed. Id. Here, the only evidence that Tolmach
changed his domicile is his declaration that he “never resided in New Jersey,”
which is directly contradicted by the record. Given Tolmach’s 2019 testimony
that he lives in New Jersey, his bank statements listing a New Jersey address,
and Eonsmoke’s tax documents listing Tolmach’s New Jersey address, I find
that Tolmach is subject to this Court’s general jurisdiction.
b. Service of Process
Next, Defendants contend that Tolmach was never duly served with
process. (DE 201-2 at 5). “Federal Rule of Civil Procedure 4 establishes the
procedural requirements that must be met for proper service under Federal
Rules of Civil Procedure 12(b)(4) and 12(b)(5).” Moses v. Amazon.com.dedc LLC,
No. 168675, 2019 WL 7293590, at *2 (D.N.J. Dec. 30, 2019). Under Federal
Rule of Civil Procedure 4(e)(2)(B), “an individual—other than a minor, an
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incompetent person, or a person whose waiver has been filed—may be served
in a judicial district of the United States by: . . . leaving a copy of [both the
summons and complaint] at the individual's dwelling or usual place of abode
with someone of suitable age and discretion who resides there [.]” Fed. R. Civ.
P. 4(e)(2)(B).
The proof of service forms indicates that Juul hired a process server who
provided the Summons and Amended Complaint to Al Tolmach, identified as a
“household member.” (DE 202 at 1). The form describes the person who
accepted service: a female, forty years or older, 5-5- in height, weighing around
120 pounds, with white skin and blonde hair. (Id.) Those details of service are
corroborated by the Declaration of Carlos Canas, the process server. (DE 204-2
at 1) Moreover, as Juul submits, the fact that the process server was able to
name Tolmach’s sister and describe her appearance corroborates his account.
Tolmach submits a declaration from his sister, Albina Tolmach. (DE 2051) She states that she came to the door and spoke to a person who wore a
badge and “interrogated” her. Afraid of COVID-19 infection, she refused to open
the door. She admits that he left a stack of paper outside the door. I disregard
Tomach’s secondhand account that he heard from his sister that the person
“dropped some paperwork on the ground, without speaking to anyone.” (DE
201-1 at 2, Tolmach Decl.). Tolmach acknowledges that his sister received the
papers, but says she “threw away the paperwork” before Tolmach arrived. (Id.)
At the very least, even in Mr. Tolmach’s account, his sister actually, physically
received the papers; if, as he claims, she threw them away, that does not
detract from the adequacy of service under the Rule, which requires only that
they be left with a person of suitable age and discretion. And obviously Mr.
Tolmach has received notice in fact of the pendency of this action.
I therefore find that Tolmach was properly served under Federal Rule of
Civil Procedure 4(e)(2)(B).

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c. Individual Liability
Finally, Defendants contend that the Amended Complaint fails to plead
facts sufficient to pierce the corporate veil and impose individual liability on
Grishayev and Tolmach. (DE 201-2 at 5)
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (Rule 8 “requires a
‘showing’ rather than a blanket assertion of an entitlement to relief.” (citation
omitted)). Thus, the complaint’s factual allegations must be sufficient to raise a
plaintiff’s right to relief above a speculative level, so that a claim is “plausible
on its face.” Twombly, 550 U.S. at 570; see also West Run Student Hous.
Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013).
That facial-plausibility standard is met “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard
is not akin to a ‘probability requirement’ . . . it asks for more than a sheer
possibility.” Id.
Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a
claim upon which relief can be granted. The defendant, as the moving party,
bears the burden of showing that no claim has been stated. Animal Science
Products, Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011).
For the purposes of a motion to dismiss, the facts alleged in the complaint are
accepted as true and all reasonable inferences are drawn in favor of the
plaintiff. New Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp.
of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

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Here, Defendants contend that the Amended Complaint fails to plead
facts sufficient to pierce the “corporate veil” and hold Grishayev and Tolmach
individually liable. (DE 201-2 at 10). 4
Under New Jersey law, two elements must be established to pierce the
corporate veil: “First, there must be such unity of interest and ownership that
the separate personalities of the corporation and the individual no longer exist.
Second, the circumstances must indicate that adherence to the fiction of
separate corporate existence would sanction a fraud or promote injustice.”
State Capital Title & Abstract Co. v. Pappas Bus. Servs., LLC, 646 F. Supp. 2d
668, 679 (D.N.J. 2009) (internal quotation marks omitted) (quoting The Mall at
IV Group Properties, LLC v. Roberts, No. 02–4692, 2005 WL 3338369, at *3
(D.N.J. Dec. 8, 2005)). To establish unity of interests, the Third Circuit applies
six factors to guide the analysis:
[1] gross undercapitalization ... [2] “failure to observe corporate
formalities, non-payment of dividends, [3] the insolvency of the
debtor corporation at the time, [4] siphoning of funds of the
corporation by the dominant stockholder, [5] non-functioning of
other officers or directors, absence of corporate records, and [6] the
fact that the corporation is merely a facade for the operations of the
dominant stockholder or stockholders.”
Id. (alteration in original) (quoting Craig v. Lake Asbestos of Quebec, Ltd., 843
F.2d 145, 150 (3d Cir.1988)). As for the second element, “a plaintiff need not
prove common law fraud but instead demonstrate that the defendants, via the
corporate form, perpetrated ‘a fraud, injustice, or the like,’ a less exacting
standard.” Id. (quoting Group Properties, 2005 WL 3338369, at *3). In the
absence of fraud or injustice, or other extraordinary circumstances, a court will
generally decline to pierce the corporate veil. Id.
Although not dispositive, Judge Hammer’s analysis (DE 184) of this
precise issue in granting Juul’s motion to amend the Complaint is helpful to
the Court. See United States v. Andover Subacute & Rehab Ctr. Servs. One, Inc.,
The parties focus on this theory of individual liability. I do not reach any issue
as to the availability of others.

4

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No. 12-03319, 2019 WL 4686963, at *1, n.5 (D.N.J. Sept. 26, 2019). As Judge
Hammer found, Juul sufficiently pleaded facts to demonstrate the unity of
interest element. Juul alleges that “Eonsmoke is merely a façade by which
Defendants Grishayev and Tolmach perpetrate their fraudulent and illicit
activities.” (Am. Compl. ¶147). As evidence of that façade, Juul alleges and
cites evidence that Grishayev and Tolmach treated a “family account” as the
Eonsmoke checking account, stating that they would transfer money back to
the corporate account as needed for, e.g., tax obligations. (Am. Compl. ¶141).
Further, Juul alleges that “Eonsmoke co-mingles funds with other of Grishayev
and Tolmach’s business entities such that there is no distinction between the
individuals and the company.” (Am. Compl. ¶ 140 (citing Ex. 7 demonstrating
transfers to Glidecraft LLC)).
Further, the Amended Complaint alleges that Eonsmoke does not comply
with corporate formalities. (Am. Compl. ¶137). As proof, Juul presents, inter
alia, Grishayev’s testimony that while he is the chief financial officer of
Eonsmoke, he and Tolmach “rotate the titles” because “they really have no
meaning” and they are just something Grishayev and Tolmach “put on the
card”. (Am. Compl. Ex. 5, DE 187 at 100-101). The Amended Complaint also
alleges that Eonsmoke siphoned Eonsmoke’s funds to leave the company
judgment proof. (Am. Compl. ¶¶ 142-143). The Amended Complaint contains
messages from Tolmach stating that he “will never sign [a] check to Juul” and
messages from a non-party suggesting that Eonsmoke could “move [its] money
away.” (Am. Compl. ¶142 (second alteration in original)).
In light of the above, I find that the Amended Complaint contains
sufficient factual allegations to demonstrate a unity of interest. Contrary to
Defendants’ assertions, the Amended Complaint does not contain “mere
conclusions” but offers plausible allegations, with accompanying support, that
Eonsmoke was merely a façade, failed to observe corporate formalities or
separate its financial assets from the individuals’ assets, and siphoned funds.
I also find the second element satisfied. As Judge Hammer noted, the
Amended Complaint alleges that Grishayev and Tolmach used Eonsmoke to
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evade regulation by the Food and Drug Administration (“FDA”). (Am. Compl.
¶147). Using an entity to avoid government regulation is indeed an injustice.
The Amended Complaint plausibly pleads facts demonstrating that Eonsmoke
was used to infringe upon Juul’s trademark and trade dress. (See December
22, 2020 Opinion, (DE 251 at 8-22) finding that Juul is likely to succeed on its
claim that Eonsmoke’s use of the Juul wordmark in social media posts and
online advertising is infringing). Therefore, I find the Amended Complaint
establishes a plausible basis for piercing the corporate veil and imposing
individual liability on Grishayev and Tolmach.
III.

Conclusion

For the reasons set forth above, I will deny Defendants’ motion (DE 201)
is dismiss the Amended Complaint as against Grishayev and Tolmach. An
appropriate order follows.
Dated: January 7, 2021

/s/ Kevin McNulty
____________________________________
Kevin McNulty
United States District Judge

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