throbber
Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 1 of 34 Page ID #43
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 1of34 Page ID #43
`
`EXHIBIT C
`EXHIBIT C
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 2 of 34 Page ID #44
`FILED
`Johnson Co. Circuit Court
`1st Judicial Circuit
`Date: 7/2/2021 4:02 PM
`Ryan M. O'Neal
`
`2021L7
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 3 of 34 Page ID #45
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 3o0f34 Page ID #45
`
`4.
`
`At all times herein alleged, Nutrien Ag Solutions, Inc. (hereinafter referred
`
`to as “Nutrien Ag”) is a Delaware corporation, with its principal place of businessat
`
`3065 Rocky Mountain Avenue, Loveland, Colorado, and authorized to transact business
`
`in Illinois, with its principal businessoffice at 208 South LaSalle St., Ste 814, Chicago,
`
`IL 60604
`
`5.
`
`Atall times herein alleged, OmniLytics, Inc. (hereinafter referred to as
`
`“OmniLytics”) is a Utah corporation with its principal place of business at 9075 South
`
`Sandy Parkway, Sandy, Utah.
`
`6.
`
`At all times herein alleged, Nutrien, Ltd (hereinafter referred to as
`
`“Nutrien”) is a Canadian corporation and is the parent company and sole ownerof
`
`Nutrien Ag (Nutrien Ag beingtheretail division of Nutrien), with its principal place of
`
`business at 122 1st Avenue South, Suite 500, Saskatoon, Saskatchewan, Canada S7K 7G3.
`
`T.
`
`At all times herein alleged, Certis USA, LLC (hereinafter referred to as
`
`“Certis”) is a limited liability company withits principal place of business at 1209
`
`Orange Street, Wilmington, DE 19801.
`
`8.
`
`At all times herein mentioned, there was a productcalled Agriphage, a
`
`bactericide for use in the growing of tomatoes.
`
`9.
`
`The following entities manufactured, distributed and purchased the
`
`Agriphage products referred to herein:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`OmniLytics, Inc.
`
` Certis USA,Inc.
`
`Nutrien, LTD
`
`Nutrien Ag Solutions, Inc
`
`[{/T/
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 4 of 34 Page ID #46
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 4of34 Page ID #46
`
`10.
`
`The Agriphage products, including Agriphage CMM,referred to herein,
`
`were distributed to the within Plaintiff by Nutrien Ag Solutions, Inc.
`
`11.
`
`Over the past seven (7) years Plaintiff had initially dealt directly with
`
`agents and representatives of Omnilytics, but Plaintiff was subsequentlydirected to deal
`
`with agents and representatives of Nutrien Ag, Inc. located in Tipton, Indiana.
`
`12.
`
` Inor about June of 2020, because of the ongoing weather conditions,
`
`including driving/splashing rain storms, coupled with extremeheat, Plaintiff decided to
`
`spray the Agriphage products on its tomato crop, located in Johnson County,Illinois, in
`
`order to prevent any spread of bacterial spot and bacterial canker.
`
`13.
`
`Onor about June 18, 2020,Plaintiff, while in Johnson County,Illinois,
`
`ordered from Defendant Nutrien Agthe following:
`
`(a)
`
`(b)
`
`10 gallons of Agriphage Tomato Spot;
`
`10 gallons of Agriphage CMM
`
`as shown onthe invoice No. 42769294 attached hereto as Exhibit “A” and incorporated
`
`herein.
`
`14.
`
`Onor about July 2, 2020, Plaintiff, while in Johnson County,Illinois,
`
`ordered from Defendant Nutrien Ag, the following:
`
`(a)
`
`(b)
`
`15 gallons of Agriphage Tomato Spot;
`
`25 gallons of Agriphage CMM.
`
`as shown onthe invoice No. 42991509 attached hereto as Exhibit “B” and incorporated
`
`herein.
`
`15.
`
`The Agriphage Tomato Spot productis to prevent “tomato spot”
`
`infestation on plants, which canafflict the tomato fruit itself, as well as the stems and
`
`leaves.
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 5 of 34 Page ID #47
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 5of34 Page ID #47
`
`16.
`
`The Agriphage CMM productprimarily prevents “bacterial canker” on
`
`tomato plants, which effects the entire plant and can renderthe plants diseased and
`
`unmarketable. The bacterial canker can spread and adversely effect an entire crop of
`
`tomatoes.
`
`17.
`
`Plaintiff ordered the Agriphage products on June 18, 2020to proactively
`
`prevent an infection of their tomato plant crops, in and about Johnson County,Illinois,
`
`which had become morelikely due to the ongoing weather conditions, including periods
`
`of driving/splashing rain and heat.
`
`18.
`
` AsofJune 18, 2020,the Plaintiff had planted three primary types of
`
`tomato crops in Johnson County,Illinois:
`
`a.
`
`b.
`
`Gc.
`
`Larger “round” tomatoes;
`
`“Roma” tomatoes; and,
`
`Smaller “grape” tomatoes.
`
`19.
`
` Onor about June 24, 2020 Plaintiff received thefirst order of the
`
`Agriphage products from Nutrien Ag. These products were shippedto Plaintiff at its
`
`address in Johnson County, Illinois.
`
`20. Uponreceipt, Plaintiff immediately began to apply the Agriphage products
`
`received to Plaintiffs tomato crops in and about Johnson County,Illinois. The Plaintiff,
`
`per recommended manufacturerinstructions, kept the Agriphage products cool until the
`
`application on the tomato crops.
`
`21.
`
`Over the next weeks, the tomato plants began to show signsof infection
`
`with bacterial canker, even though the Plaintiff had properly applied the Agriphage
`
`CMMproductto the tomato crops.
`
`22, Onor about July 2, 2020, Plaintiff placed an order by e—mail with Nutrien
`
`4
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 6 of 34 Page ID #48
`Case 3:21-cv-01035 Documenti1-3 Filed 08/19/21 Page 6 of 34 Page ID #48
`
`Ag for additional Agriphage productto address the increased presence of bacterial
`
`canker on Plaintiffs tomato crop.
`
`23.
`
` Nutrien Aginitially failed to promptlyfill and ship this second July 2,
`
`2020 order. Plaintiff called the agent at Nutrien Ag and explainedtheir alarm at the
`
`spread of the tomato canker, even afterthe first application of the Agriphage CMM.
`
`After receiving the telephonecall from Plaintiff, Nutrien Ag did ship the Agriphage
`
`productto Plaintiff, which Plaintiff received, in Johnson County,Illinois, on or about
`
`July 9, 2020.
`
`24.
`
`Upon receipt of the July order from Nutrien Ag, the Plaintiff began to
`
`apply the Agriphage CMM immediately to Plaintiff's tomato cropsto try and stop
`
`further spread of the bacterial canker.
`
`25.
`
`After Plaintiff began applying the July shipmentof the Agriphage product,
`
`Plaintiff noticed that the Agriphage CMM productthat had been shipped wasnot
`
`“fresh”, and wasin fact well past the expiration date noted on the Agriphage packaging
`
`received by Plaintiff with the shipment.
`
`26.
`
`Plaintiff then looked at the containers and lot numberofthe prior June,
`
`2020 Agriphage shipment, and the product that had been shipped hadalso expired at
`
`the timeit was received by Plaintiff.
`
`27.
`
`Plaintiff had utilized Agriphage CMMinthe past seven (7) years and had
`
`generally favorable results in warding off bacterial cankerto Plaintiffs tomato crops.
`
`28,
`
` Atall times herein alleged, Plaintiff was told by representatives of
`
`Defendants that Agriphage CMM wouldresist and preventthe onsetof bacterial canker.
`
`29.
`
`Plaintiff was told by Defendants that the Agriphage CMM product had to
`
`be “fresh” and stored in a cool place. Upon receipt of any Agriphage productPlaintiff
`
`5
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 7 of 34 Page ID #49
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 7 of 34 Page ID #49
`
`always stored the productin a cool environment.
`
`30.
`
`Plaintiff relied on the Defendants’ promises and assurancesof the quality
`
`and effectiveness of the Agriphage CMM product. In June and July, 2020,Plaintiff
`
`applied the Agriphage CMM productto their tomato crops with the expectation that the
`
`Plaintiffs tomato crops would be protected from bacterial canker.
`
`31.
`
`‘The Plaintiffs 2020 tomatocrops, located in Johnson County,Illinois,
`
`sustained substantial infestation of the bacterial canker, which destroyed the majority of
`
`Plaintiffs three (3) tomato crops.
`
`32.
`
`The Plaintiff's 2020 tomato crop yields were substantially reduced due to
`
`the infestation of the bacterial canker, which rendered muchofthe Plaintiff's tomato
`
`crops unmarketable.
`
`33.
`
`Plaintiffs loss due to bacterial canker infestation in 2020 was due to the
`
`Agriphage CMM beingdefective in one or moreof the following respects:
`
`(a)
`
`The product was nolongereffective due to expiration of the time to
`
`be successfully applied.
`
`(b)
`
`The product wasgenerally not effective.
`
`34.
`
`In this Complaint, whereit is alleged that Plaintiff performed anact,
`
`Plaintiff is asserting that this act was done by Plaintiffs employees or agents acting
`
`within the scope of their employment.
`
`35.
`
`In this Complaint, whereit is alleged that a Defendant performed a certain
`
`act, Plaintiff is asserting that this act was done by that Defendants’ employees or agents
`
`acting in the scope of their employment
`
`T/L
`
`ITLL
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 8 of 34 Page ID #50
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 8 of 34 Page ID #50
`
`COUNT I.
`VIOLATION OF EXPRESS WARRANTY (810 ILCS 5/2-313)
`AS TO ALL DEFENDANTS
`
`Now comesLarry Trover Produce,Inc.. (hereinafter “Plaintiff” or “Trover”), the
`
`plaintiff in the above-captioned cause, by Richard Krugerof the Richard Kruger Law
`
`Firm, its attorney and bringsthis action for Violation of Express Warranty (810 ILCS
`
`5/2-313) in the alternative, against Nutrien Ag Solutions, Inc., Nutrien Ltd., Omnilytics,
`
`Inc. and Certis, USA, Inc., Defendants in the above-captioned cause, and states as
`
`follows:
`
`1-35. Plaintiff repeats and reallegesall of the paragraphsin the above “General
`
`Allegations” as paragraphs1 through 35 of this CountI, as though fully set forth herein.
`
`36. Onor about June 18, 2020 Defendants, and each of the, through their
`
`authorized sales agents and representatives,sold to Plaintiff ten (10) gallons of
`
`Agriphage CMM.
`
`37.
`
`Defendants,as they had always doneinthe past seven (7) years, through
`
`their authorized agents and representatives, warranted and promisedthat the Agriphage
`
`CMMproduct would be delivered fresh, and upon application to Plaintiffs tomato crop,
`
`would prevent tomato canker.
`
`38.
`
`Defendants,over the past seven(7) years, specifically promised and
`
`warranted that the Agriphage CMMproduct wouldarrive “fresh”, and as such, upon
`
`receipt should be storedin a cool place and applied in a proper manner.
`
`39.
`
`Defendant, OmniLytics onits label, affixed to the product shipped to
`
`Plaintiffs, specifically stated that Agriphage CMMis “Bactericide for use on tomato
`
`plants... [Biological bactericide for the suppression of bacterial stem canker on
`
`greenhouse tomatoes|”. “DIRECTIONS FOR USE: Agriphage-CMMis a bactericide
`
`Z
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 9 of 34 Page ID #51
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 9 of 34 Page ID #51
`
`used as a preventative and curative product for the suppression of bacterial canker on
`
`greenhouse tomato caused by Clavibacter michiganensis subsp. michiganensis.”.
`
`4o.
`
`Plaintiff, in reliance on Defendants’ promises and assurancesregarding
`
`suppression of tomato canker, purchased the Agriphage CMM andapplied the
`
`Agriphage CMM toits tomato crops.
`
`41.
`
`Had Defendants not maderepresentations of suppression of canker in
`
`tomatoes, the Plaintiff would not have madethis purchase of the Agriphage CMM.
`
`42. Onor about June 23, 2020, upon receipt of the Agriphage in Johnson
`
`County,Illinois, the Plaintiff properly stored the Agriphage CMM productin a cool
`
`storageplace.
`
`43.
`
`Immediately thereafter, in June, 2020, Plaintiff began the proper
`
`application of the Agriphage CMMtoits tomato crops.
`
`44.
`
`Even after this initial application, Plaintiff noted that the bacterial canker
`
`wasstarting to spread in its tomato crops.
`
`45.
`
`On July 2, 2020, Plaintiff ordered an additional twenty five (25) gallons of
`
`Agriphage CMM from the Defendants’ authorized agent, Nutrien Ag.
`
`46.
`
`Plaintiff, relying on the promises and assurancesthat the product was
`
`effective and would function as advertised and represented, did orderthis July
`
`shipment of Agriphage CMM.
`
`47.
`
`Defendant Nutrien Ag delayed shipmentof the second order of Agriphage
`
`CMM,but said product was ultimately delivered to Plaintiff on or about July 9, 2020.
`
`48.
`
`Plaintiff, in reliance on the promises and assurancesof the effectiveness of
`
`the Agriphage CMM product, received the product, provided proper storage and began
`
`to properly apply the Agriphage CMMtotheir tomato crops.
`
`8
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 10 of 34 Page ID #52
`Case 3:21-cv-01035 Documenti1-3 Filed 08/19/21 Page 10 of 34 Page ID #52
`
`49.
`
`After this second application of the Agriphage CMM,instead of preventing
`
`the spread of the bacterial canker, the bacterial canker spread rapidly throughoutall of
`
`Plaintiffs tomato crops, effectively destroying a substantial portion of the tomato yield
`
`for all types of tomatoes.
`
`50.
`
`The following applies to the Agriphage CMM productas provided to
`
`Plaintiff:
`
`(a) The product was not as warranted or promised;
`
`(b) The product was defective, was notfresh, and failed to prevent spread of the
`
`bacterial canker
`
`51.
`
`The bacterial canker devastated the majority of Plaintiffs tomato crops,
`
`destroying the majority of all types of Plaintiffs Johnson County,Illinois tomato crops,
`
`and rendering the crop unmarketable.
`
`52.
`
`Plaintiff did learn, subsequentto the application of the product, that the
`
`Agriphage CMM productlot that was sold and providedto Plaintiff was not fresh, was
`
`shipped by Defendant Nutrien Ag, and received by Plaintiff, after the expiration date,
`
`rendering the product defective and ineffective.
`
`53.
`
`Plaintiff promptly provided the Defendants with notice of breach of
`
`warranty in that Plaintiff did the following:
`
`(a)
`
`(b)
`
`Notified Nutrien Ag and informed them of the productfailure;
`
`Notified Nutrien Ag and informed them of the product being shipped to
`
`them after the expiration date;
`
`(c)
`
`Notified Nutrien Ag and informed them ofthe loss of the tomato crop due
`
`to the widespread bacterial canker.
`
`LTT
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 11 of 34 Page ID #53
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 11o0f34 Page ID #53
`
`54.
`
`After being notified of the breach of warranty and cropfailure, the
`
`representative for Nutrien Ag promised that Defendant manufacturers/distributors
`
`would be in contact with Plaintiff to try and rectify the damages caused by the defective
`
`Agriphage CMM product.
`
`55.
`
`Plaintiff never received any contact from anyof the defendants as
`
`promisedin the preceding paragraph.
`
`56.
`
`Plaintiff sustained substantial losses in the yield of their tomato crop. The
`
`yield from eachfield of the round, Roma and grape tomatoes wasdrastically less than in
`
`years past.
`
`57.
`
`Defendants’ Agriphage CMMfailed to prevent the spread of the bacterial
`
`canker, andin fact, the bacterial canker spread rampantly, even after two (2)
`
`applications of the Agriphage CMM product.
`
`58.
`
`Plaintiff lost in excess of $300,000.00 dueto the destructionoftheir
`
`tomato crops from the spread of the bacterial canker.
`
`WHEREFORE,Plaintiff prays for the followingrelief:
`
`A.
`
`B.
`
`That judgmentbe enteredin favor of Plaintiff and against Defendants;
`
`That the Defendants be ordered to compensate Plaintiff for their losses
`
`and damages caused bythe destruction of their tomato crops due to bacterial canker;
`
`C:
`
`D.
`
`For costs of suit, and;
`
`For such otherrelief as is just and proper.
`
`Larry Trover Produce,Inc., Plaintiff
`
`Richard Kruger,Plaintiffs attorney
`
`T/T
`
`10
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 12 of 34 Page ID #54
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 12 of 34 Page ID #54
`
`COUNT II.
`BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
`810 ILCS
`5/2-314) AS TO ALL DEFENDANTS
`
`Now comes Larry Trover Produce,Inc., the plaintiff in the above-captioned
`
`cause, by Richard Krugerof the Richard Kruger Law Firm,its attorney andbringsthis
`
`action for Breach of Implied Warranty (810 ILCS 5/2-314) in the alternative, against
`
`Nutrien Ag Solutions, Inc., Nutrien Ltd., Omnilytics, Inc. and Certis, USA,Inc.,
`
`Defendants in the above-captioned cause, andstates as follows:
`
`1-57. Plaintiff repeats andrealleges paragraphs 1 through 35 of the above
`
`“General Allegations” as paragraphs 1 through 35 of this Count I and paragraphs 36-57
`
`of CountI, as paragraphs 36-57 ofthis CountII, as though fully set forth herein.
`
`58.
`
`At all times herein alleged, Defendants were merchantsof the product
`
`Agriphage CMMinthatthe following applies:
`
`a.
`
`Each Defendantdeals in the manufacture, sale and/or distribution
`
`of these goods, the Agriphage CMM product; and,
`
`b.
`
`Each Defendant held themselves out of having knowledgeof the
`
`production applications and use.
`
`59.
`
`Over the past approximately seven (7) years Plaintiff had ordered and
`
`applied Agriphage CMMtoPlaintiffs tomato crops. Over the past seven (7)
`
`years Plaintiff was told by defendants andtheir agents that the product wouldarrive
`
`fresh and neededtobestored in a cool place and applied within a short time after
`
`receipt of the product.
`
`60. Onor about June 18, 2020 Plaintiff ordered the product Agriphage CMM
`
`from Defendant, Nutrien Ag, to proactively prevent possible spread of bacterial canker
`
`to Plaintiffs tomato crops.
`
`11
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 13 of 34 Page ID #55
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 13 0f 34 Page ID #55
`
`61.
`
`Agriphage CMMis marketed by Defendants to the public with the ordinary
`
`and commonpurpose of preventing the spread ofbacterial cankeronall varieties of
`
`tomato plants.
`
`62.
`
`Defendants, throughtheir authorized agents, sold their Agriphage CMM
`
`productto Plaintiff on June 18, 2020 and again on July 2, 2020.
`
`63.
`
`Defendants, through their authorized agents, shippedtheir Agriphage
`
`CMMproductto Plaintiffs location in Johnson County, Illinois on June 23, 2020 and
`
`again on July 8, 2020.
`
`64.
`
`The Agriphage CMM productlots that were shippedto Plaintiff on June
`
`23, 2020 and July 8, 2020 were not merchantable at the timeofthe sale and shipment
`
`of the product.
`
`65.
`
`The Agriphage CMM productsold and shippedto Plaintiff was not as
`
`warranted, wasnotfresh, and wasdefective in not preventing the spread ofbacterial
`
`canker to tomato plants. The defective Agriphage CMM sold andshippedto Plaintiff
`
`failed to perform as it was designed and marketed.
`
`66.
`
`The defective and ineffective Agriphage CMM product wasunfitfor the
`
`ordinary purposeit was sold and shippedto Plaintiff, specifically, to prevent the spread
`
`of bacterial canker to tomato plants.
`
`67.
`
`Becauseof the defective condition of the Agriphage CMM product shipped
`
`andutilized by Plaintiff, the Plaintiff sustained substantial damagesto its tomato crops.
`
`68.
`
`Plaintiff sustained substantiallosses in the yield of their tomato crop. The
`
`yield from eachfield of the round, Roma and grape tomatoeswasdrastically less than in
`
`years past.
`
`TT}
`
`12
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 14 of 34 Page ID #56
`Case 3:21-cv-01035 Documenti1-3 Filed 08/19/21 Page 14 of 34 Page ID #56
`
`69.
`
`Defendants’ Agriphage CMMfailed to prevent the spread ofthe bacterial
`
`canker, andin fact, the bacterial canker spread rampantly, even after two (2)
`
`applications of the Agriphage CMM product.
`
`70.
`
`Plaintiff lost in excess of $300,000.00 dueto the destruction oftheir
`
`tomato crops from the spread of the bacterial canker.
`
`71.
`
`Plaintiff promptly notified the Nutrien Ag representative regarding the
`
`defective nature of the Agriphage CMM product.
`
`72.
`
`The Nutrien Ag representative promised that Defendant
`
`manufacturers/distributors would be in contact to try andrectify the damages caused by
`
`the defective Agriphage CMM product.
`
`73.
`
`74.
`
`Plaintiff never received any contact from any of the defendants.
`
`After Plaintiffs contact of Defendant Nutrien Ag, the Defendant Nutrien
`
`Ag representative acknowledged to Plaintiff that the Agriphage CMM product sold and
`
`shipped to Plaintiff was likely defective and notfit for its ordinary use.
`
`WHEREFORE,Plaintiff prays for the followingrelief:
`
`A.
`
`B.
`
`That judgment be enteredin favor of Plaintiff and against Defendants;
`
`That the Defendants be ordered to compensatePlaintiff for their losses
`
`and damagescausedbythe destruction of their tomato crops dueto bacterial canker;
`
`C,
`
`D.
`
`For costs of suit, and;
`
`For such otherrelief as is just and proper.
`
`Larry Trover Produce,Inc, Plaintiff
`
`bk lof
`Rahard Kruger, Plaintiffs attorney
`
`[Tff
`
`13
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 15 of 34 Page ID #57
`Case 3:21-cv-01035 Documenti1-3 Filed 08/19/21 Page 15o0f34 Page ID #57
`
`COUNT III
`FRAUDULENT MISREPRESENTATION AGAINST ALL DEFENDANTS
`
`Now comesLarry Trover Produce, Inc., Plaintiff in the above-captioned
`
`cause, by Richard Kruger of Kruger Law Firm,its attorney, and bringsthis action for
`
`Fraudulent Misrepresentation, in the alternative, against Nutrien Ag Solutions,Inc.,
`
`Nutrien Ltd., Omnilytics, Inc. and Certis, USA, Inc., Defendants in the above-captioned
`
`cause, andstates as follows:
`
`1-74. Plaintiff repeats and realleges paragraphs1 through 35 of the “General
`
`Allegations” as paragraphs 1 through 35 of this CountIII, paragraphs 36-57 of CountI,
`
`as paragraphs 36-57 of this CountIII, and paragraphs 58-74 of CountII as paragraphs-
`
`58-74 of this CountIII, as though fully set forth herein.
`
`75.
`
` Atall times Stuart Brenneman was employed with, and acting as an
`
`authorized sales agent and representative of Defendants, Nutrien Ltd, and Nutrien Ag
`
`and acting in the scope of his employment.
`
`76.
`
`Atall times herein relevant Stuart Brenneman,acting as a sales agent and
`
`representative for Nutrien, Ltd, Nutrien Ag, was acting within the course, scope and
`
`authorization of his employment with Nutrien Ltd, and Nutrien Ag.
`
`77.
`
`The Defendants, and each of them, intentionally, through its agents and
`
`employees knowingly stated the following material facts regarding the Agriphage CMM
`
`product that had been shipped to Plaintiff over the preceding approximately seven (7)
`
`years, including the product that was shipped to Plaintiff on June 23, 2020 and July 8,
`
`2020:
`
`Plaintiff was assured that the Agriphage CMM product,
`a.
`whichPlaintiff had utilized in the past, would be delivered to Plaintiff
`in a timely manner, and that the Agriphage CMM product would be
`“fresh”.
`
`14
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 16 of 34 Page ID #58
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 16 of 34 Page ID #58
`
`Plaintiff was told that since the Agriphage CMM product
`b.
`they were purchasing would be “fresh” the Plaintiff had to ensure
`that the Agriphage CMM remainedstoredin a cool environment and
`wasapplied to the tomato crops in a proper manner.
`e.
`Plaintiff was told that, as in the past, if Plaintiff applied
`the Agriphage CMM productto their tomato crops there would be
`limited to no loss of crops due to bacterial canker.
`
`78.
`
`That the statementsby all Defendants,through their authorized agent(s),
`
`as set forth in the preceding paragraph 54.a., 54.b. and 54.c. werefalse. The statements
`
`referred to in the preceding paragraphs54.a., 54.b. and 54.c. are hereinafter referred to
`
`as the “statements”.
`
`79.
`
`That the statements were known byrepresentative and agents of
`
`Defendants to be false.
`
`80.
`
`That Defendants intendedthat the statements induce Plaintiff to act: Said
`
`actions include butare notlimited to the following:
`
`(a)
`
`that Plaintiff would order over the preceding years the Agriphage
`
`CMM product;
`
`(b)
`
`that Plaintiff wouldorder, and pay in full, for ten (10) gallons of
`
`Agriphage CMM on June 23, 2020;
`
`(c)
`
`that Plaintiff would order the twenty five (25) gallons of Agriphage
`
`CMMon July 2, 2020;
`
`(d)
`
`that Plaintiff would apply the productto their tomato crops.
`
`81.
`
`Plaintiff believed the statements of the agents and representatives of the
`
`Defendants,andrightfully relied on the Defendants’ representatives and agents’
`
`statements, and did orderthe two (2) shipments of the Agriphage CMM product.
`
`82.
`
`Plaintiff sustained damagesasa result of the reliance on the Defendants’
`
`representatives and agents’ statements in that the following applies:
`
`15
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 17 of 34 Page ID #59
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 17 of 34 Page ID #59
`
`a.
`
`Defendants, by and throughtheir authorized agents and employees,
`
`including, but not limited to Stuart Brenneman, were aware that Plaintiff was
`
`concerned, and was becomingincreasingly concerned, about the threat and spread of
`
`bacterial canker to the Plaintiffs tomato crops.
`
`b.
`
`On or about July 8, 2020,after the application of the June 2020
`
`Agriphage CMM shipment, Plaintiff's representative called and explained to Stuart
`
`Brennemanthatit wascritical to obtain the Agriphage CMM productas the bacterial
`
`canker appeared to be spreading, even though the June shipmentof the product had
`
`been stored properly and properly applied to the crops.
`
`C.
`
`Defendants, by and through their authorized agents and employees,
`
`had always promised to providequality, fresh, Agriphage CMM productafter any order
`
`had been placed.
`
`d..
`
`In reality, Defendants, throughtheir agents, distributors and
`
`employees, had no intention of honoring this promise of providing fresh quality
`
`Agriphage CMM product,andinstead concealed and improperly provided known
`
`expired and defective Agriphage CMM productto Plaintiff on both the June and July
`
`2020 orders.
`
`e.
`
`Defendants, through their authorized agents,distributors and
`
`employees, concealed andfabricated about the fact that the product they were providing
`
`to Plaintiff was not fresh, was actually expired, and would not work as promised.
`
`f.
`
`Defendants, through their agents and representatives, knew that
`
`Plaintiff was facing an onset andincreasedinfestation of bacterial canker. Plaintiff's
`
`representative specifically explained to Nutrien Ltd, Nutrien Ag’s agent that the
`
`bacterial canker was getting worse, evenafter the first application of the June 2020
`
`16
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 18 of 34 Page ID #60
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 18 of 34 Page ID #60
`
`Agriphage CMM shipment.
`
`g.
`
`Defendants ignored the Plaintiff's requests and concerns and
`
`instead fraudulently and wrongfully distributed more of the samelot of defective and
`
`expired Agriphage CMM productto the Plaintiff.
`
`h.
`
`The Defendants, through its agents, distributors and employees, at
`
`all times knewthatthe statements to Plaintiff regarding their assertions that they were
`
`providing fresh and quality Agriphage CMM,werefalse, and that in reality Defendants
`
`were distributing defective, expired Agriphage CMM productto Plaintiff on both the
`
`June and July, 2020 shipments.
`
`iL
`
`Defendants, though placed on notice, and knowingthat the product
`
`they distributed was defective, have continuedto fail to take steps to reimburse Plaintiff
`
`for the cost of this defective product. Defendants have failed to take any steps to
`
`address the Plaintiffs loss of crops dueto their distribution of their defective product.
`
`1.
`
`The Defendants intended that Plaintiff rely on the false promises
`
`and statements in orderto inducePlaintiff to act by placing, and payingin part, for
`
`these orders for the defective Agriphage CMM product.
`
`k.
`
`Plaintiff believed the Defendants’ false statements, assurances,
`
`warranties and promises, and relied on Defendants’ false statements and promises to
`
`Plaintiffs detrimentin that Plaintiff did order and pay in part for the Agriphage CMM
`
`product, though said product was in reality worthless to Plaintiff and was defective.
`
`83.
`
`Plaintiff had a right to rely on Defendants’ representations as Defendants
`
`holds themselves out to be an expert and legally engaged in the business of
`
`manufacturing, producing, distributing and providing Agriphage CMM products,in
`
`order to help ensure the health and prevention of disease to farm crops, to customers
`
`17
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 19 of 34 Page ID #61
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 19 of 34 Page ID #61
`
`suchas Plaintiff who are engaged in the businessof farming and raising tomato crops.
`
`84.
`
`If Plaintiff had known of Defendants false and misleading statements,
`
`fraudulent distribution of product, and failure to perform as they had promisedPlaintiff,
`
`the Plaintiff would not have contracted with Defendants to purchase the Agriphage
`
`CMMproduct.
`
`85.
`
`If Plaintiff had knownof Defendants fraudulent distribution of product,
`
`and failure to perform as they had promised Plaintiff, the Plaintiffs would not have paid
`
`the full amount for the June 2020 shipmentas charged by Nutrien Ltd., Nutrien Ag.
`
`86.
`
`If Plaintiff had known of Defendants false and misleading statements,
`
`fraudulent distribution of product, and failure to perform as they had promisedPlaintiff,
`
`the Plaintiff would not have applied the Agriphage CMM productto its tomato crops,
`
`and would have obtained viable product elsewhereto protect its tomato crops.
`
`87. Asaresult of Defendants’ actions, Plaintiff has sustained damages and
`
`injury in paying for Agriphage CMM productthat was defective andfailed to protect
`
`Plaintiff's tomato crops. The Plaintiffs reliance on Defendants’ false promises and
`
`assurancesled to Plaintiffs loss of tomato crops and revenue.
`
`88.
`
`Plaintiff seeks damages in an amountof the amountit was fraudulently
`
`inducedto pay, andfor its crop revenue loss due to the wrongful acts of Defendants.
`
`WHEREFORE,Plaintiff requests judgment against Defendants, and each of
`
`them,for the following:
`
`A.
`
`For the return of the moneythey paid to Defendant, Nutrien Ag to date in
`
`the amountof $1,255.00;
`
`B.
`
`That the Defendants, and each of them, be ordered to compensate Plaintiff
`
`for all costs and expenses incurred by Plaintiff arising out of the Defendants’ conduct,
`
`18
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 20 of 34 Page ID #62
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 20 of 34 Page ID #62
`
`including theloss of Plaintiff's tomato crops and loss of revenue dueto the low yield as a
`
`result of the infestation of the bacterial cankerto Plaintiffs crops;
`
`C.
`
`D.
`
`Forcosts of suit, and;
`
`For such otherrelief as is just and proper.
`
`Larry Trover Produce, Inc., Plaintiffs
`
`By:
`
`flr La/
`Richard Kruger, Plaintiffs attorney
`
`COUNTIV
`FOR VIOLATION OF ILLINOIS CONSUMER FRAUD AND
`DECEPTIVE BUSINESS PRACTICES AGAINST ALL DEFENDANTS
`
`Now comesLarry Trover Produce,Inc., Plaintiff in the above-captioned cause, by
`
`Richard Kruger of Kruger Law Firm,its attorney and bringsthis action for Violation of
`
`Illinois Consumer Fraud and Deceptive Business Practices, in the alternative, against
`
`Defendants, Nutrien Ag Solutions, Inc., Nutrien Ltd., Omnilytics, Inc. and Certis, USA,
`
`Inc., in the above-captioned cause. This Countfor violation of the Illinois Consumer
`
`Fraud Act is brought in the alternative on the following grounds:
`
`(a)
`
`The Tort of fraudulent misrepresentation (commonlaw fraud)
`
`alleging causation of damagesbydirect reliance by Plaintiff on the misrepresentations
`
`of Defendants (paragraphs 75-88 of this Count);
`
`1-88. Plaintiff repeats and realleges paragraphs1 through 35 of the “General
`
`Allegations” as paragraphs1 through 35 of this Count IV, paragraphs 36-57 of CountI,
`
`as paragraphs 36-57 of this Count IV, paragraphs 58-74 of CountII as paragraphs58 -
`
`74 of this Count IV, and paragraphs75 - 88 of CountIII as paragraphs 75 — 88ofthis
`
`CountIV, as thoughfully set forth herein.
`
`HTT
`
`19
`
`

`

`Case 3:21-cv-01035 Document 1-3 Filed 08/19/21 Page 21 of 34 Page ID #63
`Case 3:21-cv-01035 Document1-3 Filed 08/19/21 Page 21 of 34 Page ID #63
`
`89.
`
`Section 2 of the Illinois Consumer Fraud and Deceptive BusinessPractices
`
`Act (815 ILCS 505/2) states in relevant part:
`
`“Unfair methods of competition and unfair or deceptive acts or
`practices, including butnot limited to the use or employmentof any
`deception, fraud, false pretense, false promise, misrepresentation or
`the concealment, suppression or omission of any material fact, with
`intent that others rely upon the concealment, suppression or
`omission of such material fact, or the use or employmentof any
`practice described in Section 2 of the ‘Uniform Deceptive Trade
`Practices Act’, approved August 5, 1965, in the conduct of any trade
`or commerce are hereby declared unlawful whether any person has
`in fact been misled, deceived or damaged thereby.”
`
`90.
`
`Defendants, and each of them, are engagedin the business of production,
`
`manufacture, sales, marketing and distribution, to the general public, in the State of
`
`Illinois, of a

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