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`Case 3:20-cv-03472-E Document 1 Filed 11/23/20 Page 1 of 12 PageID 1Case 3:20-cv-03472-E Document 1 Filed 11/23/20 Page 1 of 12 PageID 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`SALVARE LA VITA WATER, LLC,
`
`Plaintiff,
`
`vs.
`
`CRAZY BOTTLING COMPANY, LLC;
`FAMOUS MINERL WATER COMPANY,
`LP; and FAMOUS WATER HOLDINGS,
`LLC,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Civil No. __________________
`
`JURY DEMANDED
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`ORIGINAL COMPLAINT
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`Plaintiff Salvare La Vita Water, LLC (Vita Water) files this original complaint against
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`defendants Crazy Bottling Company, LLC (Crazy Bottling), Famous Mineral Water Company,
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`LP, and Famous Water Holdings, LLC (together, Famous Water), and for cause of action would
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`respectfully show as follows:
`
`I.
`
`INTRODUCTION
`
`1.
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`Vita Water contracted with Crazy Bottling and Famous Water to purchase and
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`custom bottle mineral water for sale to Vita Water’s customers. This dispute arose because the
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`bottled water Defendants provided was contaminated with, among other things, live protozoa that
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`could be seen wriggling when placed under a microscope.
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`2.
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`Vita Water first contracted with Defendants in or around the end of 2018 and the
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`beginning of 2019. Defendants’ first shipment of bottled water was sent in February 2019 and
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`then delivered to Vita Water’s largest customer, Apple, Inc. Vita Water was not aware
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`Defendants’ bottled water was contaminated until Apple notified Vita Water that multiple bottles
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`contained floating yellow flakes. When presented with this allegation, Defendants claimed the
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`flakes were naturally occurring minerals.
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`3.
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`But multiple independent laboratory tests—conducted by both Apple and Vita
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`Water—confirmed that biological material was present in the bottled water Defendants provided,
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`including live protozoa. To make matters worse, when confronted with the independent
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`laboratory results showing the bottled water was contaminated, Defendants refused to do anything
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`about it.
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`4.
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`As a direct result of Defendants’ errors, omissions, negligence, breaches, and
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`violations of Texas statutory law, Vita Water lost its largest customer and has effectively gone
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`out of business, losing millions of dollars in the process. Vita Water has filed this lawsuit to hold
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`Defendants accountable.
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`II.
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`PARTIES
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`5.
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`Plaintiff Salvare La Vita Water, LLC (Vita Water, or Plaintiff) is a California
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`limited liability company that operates its business in San Ramon, California.
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`6.
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`Defendant Crazy Bottling Company, LLC is a Texas limited liability company,
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`with its principal place of business located at 209 Northwest 6th Street, Mineral Wells, Texas
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`76067. Crazy Bottling may be served with process through service on its registered agent for
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`service of process, Carol Elder, at 209 Northwest 6th Street, Mineral Wells, Texas 76067, or
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`wherever she may be found.
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`7.
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`Upon information and belief, defendant Famous Mineral Water Company, LP is a
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`Texas limited partnership with its principal place of business located at 209 Northwest 6th Street,
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`Mineral Wells, Texas 76067. Famous Mineral Water Company, LP may be served with process
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`through service on its general partner, Famous Water Holdings, LLC, at 209 Northwest 6th Street,
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`Mineral Wells, Texas 76067.
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`8.
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`Defendant Famous Water Holdings, LLC is a Texas limited liability company,
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`with its principal place of business located at 209 Northwest 6th Street, Mineral Wells, Texas
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`76067. Famous Water Holdings, LLC may be served with process through service on its
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`registered agent for service of process, Carol Elder, at 209 Northwest 6th Street, Mineral Wells,
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`Texas 76067, or wherever she may be found.
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`III.
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`JURISDICTION AND VENUE
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`9.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332 because
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`the parties are citizens of different states and the amount in controversy exceeds $75,000. Further,
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`and to the extent necessary, this Court has supplemental jurisdiction over Vita Water’s claims
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`arising under state law pursuant to 28 U.S.C. § 1367(a) because those claims are so related to the
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`federal claims that they form part of the same case or controversy under Article III of the United
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`States Constitution.
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`10.
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`This Court has jurisdiction over the defendants in this lawsuit because they are
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`residents of Texas and/or conduct business in the State of Texas. Crazy Bottling and Famous
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`Water Holdings, LLC are both limited liability companies that are organized under Texas law and
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`have their headquarters in the State of Texas. Upon information and belief, Famous Mineral
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`Water Company, LP is a limited partnership organized under Texas law and has its headquarters
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`in the State of Texas.
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`11.
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`Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(1) because each
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`defendant resides in this district and all defendants are residents of the State of Texas. Further,
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`venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2) because a substantial part of
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`the events or omissions giving rise to the claim occurred in this judicial district.
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`IV.
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`BACKGROUND
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`12.
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`Vita Water is based in San Ramon, California, and sells bottled water products to
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`stores and companies. One of the things that makes Vita Water unique in the industry is that it
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`takes a majority of its proceeds and helps provide clean drinking water to impoverished areas all
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`over the world. This fact attracted customers like Apple to engage in business with Vita Water.
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`Apple (which is based in Cupertino, California) supported Vita Water’s mission in providing
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`clean drinking water all across the globe through its charitable work.
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`13.
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`After several years of doing business with Apple, Apple asked Vita Water convert
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`its product packaging (plastic bottle containers with plastic caps) to more environmentally
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`conscious materials (glass bottle containers with aluminum caps). Changing product packaging
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`required significant costs and structural changes to Vita Water’s supply chain. Vita Water
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`requested, and Apple agreed to, a substantial increase in the amount of product Vita Water would
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`provide to Apple: more than $1 million in annual retail sales.
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`14.
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`But when Vita Water began looking for a bottler to satisfy Apple’s packaging
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`request, it became apparent there was no bottler in California with a natural source of water that
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`would accommodate the volume of water that Vita Water sought. Vita Water’s nationwide search
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`brought it to Defendants, located in Mineral Wells, Texas.
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`15.
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`Defendants did have the capacity to satisfy the volume Vita Water required and
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`could do so in glass bottles with aluminum caps. Negotiations with Defendants occurred in late
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`2018 and early 2019, regarding labeling, packaging, shipping, long-term supply agreements, and
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`other issues. Importantly, Famous Water provided test results for its water during this process,
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`which purported to demonstrate the water was fit for consumption.
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`16.
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`A written contract reflecting the agreement between Vita Water and Defendants
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`was not executed by the time delivery of the new products was due to Apple. For that initial
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`shipment in February 2019, the parties agreed to have three truckloads totaling 84,000 glass
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`bottles (filled with water) delivered to a warehouse in Hayward, California, for a fixed price based
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`on a purchase order.
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`17.
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`The shipment arrived on time and appeared on cursory inspection to comply with
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`the terms of the parties’ agreement. The bottled water was then distributed to Apple.
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`18.
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`After Apple received its first shipment, however, it contacted Vita Water. Brown-
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`orange particles were floating in the glass water bottles that Apple received.
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`19.
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`Vita Water immediately contacted Defendants. Carol Elder, one of Defendants’
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`principals, told Vita Water that those particles were “minerals that have dropped out of the water,”
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`that it was typical of mineral water, and the water was safe to drink. Vita Water passed on to
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`Apple what Defendants said.
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`20.
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`Apple was not so sure. In order to ensure the health and safety of its employees,
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`Apple sent several bottles of Vita Water supplied by Defendants to an independent laboratory for
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`testing. Aemtak, Inc. located in San Jose, California, conducted a test of various samples of the
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`Vita Water bottles sent in by Apple.
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`21.
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`Aemtak’s results were shocking. The brown-orange clumps were not “minerals,”
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`as Ms. Elder claimed—they were biofilms. According to Aemtak, Inc. inside these biofilms were
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`hyphal fragments, yeast-like cells, and live protozoa.
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`22.
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`Apple immediately canceled its contract with Vita Water. In an attempt to salvage
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`the relationship, Vita Water agreed to recall all the glass bottles of Vita Water obtained from
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`Defendants. After notifying Defendants of what had happened, both Defendants refused to assist
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`in a recall. In fact, when confronted with the lab results, Defendants brazenly rejected them before
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`they had even conducted their own laboratory tests.
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`23.
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`To confirm Apple’s findings, Vita Water also conducted its own tests through an
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`independent laboratory located in California. Vita Water’s initial test indicated that the plate
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`count in the water was over three times acceptable levels for drinking water.
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`24.
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`Vita Water’s California laboratory sent additional samples to its drinking water
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`laboratory in Florida for further testing. The test results from the Florida laboratory mirrored the
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`results from Apple’s laboratory tests. In fact, under a live microscope, one can see the live
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`protozoa wriggling in the water.
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`25.
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`As a direct result of Defendants’ contaminated water, their decision not to
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`participate in a recall of the contaminated water, and their strangely obstinate refusal that the
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`water was even contaminated, Vita Water was not able to salvage its relationship with Apple.
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`The loss of Apple as a customer destroyed Vita Water’s business, which has caused millions of
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`dollars in damages.
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`V.
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`CAUSES OF ACTION
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`26.
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`Vita Water re-alleges and incorporates each of the preceding paragraphs and the
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`allegations they contain as if fully set forth in each cause of action below.
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`A.
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`Breach of contract
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`27.
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`In or around February 2019, Vita Water and Defendants executed a valid and
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`enforceable written contract: the purchase orders for Vita Water to purchase from Defendants
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`84,000 glass bottles of mineral water per month that were suitable for drinking. Those purchase
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`orders defined the essential terms of the parties’ agreement: the price to be paid, the quantity to
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`be delivered, and the method and place of delivery.
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`28.
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`Vita Water fully performed its contractual obligations. It fulfilled its obligations
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`under the purchase orders with Defendants.
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`29.
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`Defendants, however, breached their contractual obligations under the purchase
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`orders. The bottled water they supplied to Vita Water was not suitable for drinking.
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`30.
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`Defendants’ breaches caused injury to Vita Water, which resulted in the following
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`damages: Vita Water was forced to recall the bottled water Defendants supplied, lost contracts
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`with Vita Water’s largest customer, Apple, and has effectively gone out of business. Those
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`injuries have resulted in millions of dollars in damages sustained by Vita Water.
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`31.
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`Vita Water seeks unliquidated damages within the jurisdictional limits of this
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`Court.
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`32.
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`Attorney fees. Vita Water is entitled to recover reasonable and necessary
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`attorney fees under Chapter 38 of the Texas Civil Practice and Remedies Code because this suit
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`is for breach of a written contract. Vita Water retained counsel, who presented Vita Water’s
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`claim to Defendants. Defendants did not tender the amount owed within 30 days after the claim
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`was presented.
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`B.
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`Breach of the implied warranty of merchantability
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`33.
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`Defendants, who are merchants of bottled mineral water intended for human
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`consumption, sold customized bottled mineral water to Vita Water. Defendants knew at the time
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`they sold the bottled mineral water to Vita Water that Vita Water intended to sell the bottles to
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`third parties for human consumption, including companies and individual consumers.
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`34.
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`The bottled water Defendants sold to Vita Water was not merchantable when
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`Defendants tendered them to Vita Water because a significant number of the bottles were
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`contaminated with biological materials, including live protozoa. That contamination made the
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`bottles unfit for human consumption, and destroyed the purpose of Vita Water’s purchase of the
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`bottles.
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`35.
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`Vita Water notified Defendants of the breach of the warranty of merchantability on
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`multiple occasions, beginning in February 2019.
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`36.
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`Defendants’ breaches of warranty directly and proximately caused injury to Vita
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`Water, which resulted in the following damages: Vita Water was forced to recall the bottled water
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`Defendants supplied, lost contracts with Vita Water’s largest customer, Apple, and has effectively
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`gone out of business. Those injuries have resulted in millions of dollars in damages sustained by
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`Vita Water.
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`37.
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`Vita Water seeks unliquidated damages within the jurisdictional limits of this
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`Court.
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`C.
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`Breach of the implied warranty of merchantability for food
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`38.
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`Plaintiff Vita Water was a reseller of bottled drinking water sold to it by defendants
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`Crazy and Famous Water.
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`39.
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`At the time of Vita Water’s purchase of the bottled water, Crazy and Famous Water
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`were in the business of bottling and selling bottled water.
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`40.
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`Based on the brown-orange particles found in many of the bottles of water provided
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`by defendants Crazy and Famous Water, three independent lab tests were conducted of various
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`sample bottles. The results showed that not only was the plate count too high for safe consumption
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`of the water by humans, but that it contained “hyphal fragments, yeast-like cells and live protozoa.”
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`This made the water unsafe and/or unfit for human consumption.
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`41.
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`The harmful condition of the water would not reasonably be expected by the
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`average consumer.
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`42.
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`As a result of being sold the unfit water, Vita Water was harmed.
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`43.
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`44.
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`Being sold the unfit water was a substantial cause to Vita Water’s harm.
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`Vita Water sustained damages as described herein.
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`D.
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`Negligence
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`45.
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`Defendants owed a legal duty to Vita Water, to provide bottled mineral water that
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`was fit for human consumption. Defendants knew (or should have known) at the time they sold
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`the bottled water to Vita Water that Vita Water intended to resell that same bottled water to third
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`parties, including companies and individual consumers.
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`46.
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`Defendants breached that duty to Vita Water by providing bottled mineral water
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`that was contaminated with, among other things, biological materials including live protozoa.
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`47.
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`Defendants’ breaches of duty proximately caused injury to Vita Water, which
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`resulted in the following damages: Vita Water was forced to recall the bottled water Defendants
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`supplied, lost contracts with Vita Water’s largest customer, Apple, and has effectively gone out of
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`business. Those injuries have resulted in millions of dollars in damages sustained by Vita Water.
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`48.
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`Vita Water seeks unliquidated damages within the jurisdictional limits of this
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`Court.
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`E.
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`Negligent recall
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`49.
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`50.
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`Defendants bottled and sold mineral water to Vita Water.
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`Defendants knew or should have known that the bottled mineral water they sold
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`was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner.
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`51.
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`52.
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`Defendants became aware of the defect of the water after it was sold to Vita Water.
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`Defendants Crazy and Famous Water failed to institute a recall of the bottled water
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`it sold to Vita Water, or contribute to the recall instituted by Vita Water.
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`53.
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`A reasonable manufacturer, bottler and/or seller of bottled water under the same of
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`similar circumstances would have recalled the product.
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`54.
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`Vita Water was harmed by the lack of defendants Crazy and Famous Water’s failure
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`to institute or participate in a recall, and was a substantial cause of harm to Vita Water.
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`55.
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`Vita Water sustained damages as described herein.
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`F.
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`Violations of the Texas Deceptive Trade Practices–Consumer Protection Act
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`56.
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`Vita Water is a consumer as defined by the Texas Deceptive Trade Practices–
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`Consumer Protection Act (DTPA) because it is a company that sought and acquired goods by
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`purchase.
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`57.
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`58.
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`Defendants are companies that can be sued under the DTPA.
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`Defendants violated the DTPA when they
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`
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`
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`
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`
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`represented that the bottled mineral water they sold to Vita Water had sponsorship,
`approval, characteristics, ingredients, uses, benefits, or quantities that the water did not
`have, in violation of Section 17.46(b)(5). Specifically, Defendants represented to Vita
`Water that the bottled water being sold was fit for human consumption.
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`represented that the bottled mineral water they sold to Vita Water was of a particular
`standard, quality, or grade when it was not, in violation of Section 17.46(b)(7).
`Specifically, Defendants represented to Vita Water that the bottled water being sold was
`fit for human consumption.
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`advertised the bottled mineral water they sold to Vita Water with intent not to sell the water
`as advertised, in violation of Section 17.46(b)(9). Specifically, Defendants advertised the
`bottled mineral water sold to Vita Water as fit for human consumption, when it was not.
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`breached express or implied warranties to Vita Water, in violation of Section 17.50(a)(2).
`Specifically, Defendants breached the implied warranty of merchantability for the bottled
`water they sold because that water was not fit for human consumption.
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`59.
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`Vita Water gave Defendants notice as required by Section 17.505(a) of the Texas
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`Business and Commerce Code. In the alternative, it was impracticable for Vita Water to give
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`Defendants written notice under Section 17.505(a) because Vita Water needed to file this suit to
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`prevent the expiration of the statute of limitations. Therefore, written notice was not required.
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`60.
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`Defendants’ wrongful conduct was a producing cause of Vita Water’s injuries,
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`which resulted in the following damages: Vita Water was forced to recall the bottled water
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`Defendants supplied, lost contracts with Vita Water’s largest customer, Apple, and has effectively
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`gone out of business. Those injuries have resulted in millions of dollars in damages sustained by
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`Vita Water.
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`61.
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`Vita Water seeks unliquidated damages within the jurisdictional limits of this
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`Court.
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`62.
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`Additional damages. Defendants acted knowingly, which entitles Vita Water to
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`recover treble economic damages under Section 17.50(b)(1) of the Texas Business and Commerce
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`Code. Specifically, Defendants were aware the bottled mineral water they sold to Vita Water was
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`contaminated and not fit for human consumption, but sold the contaminated water to Vita Water
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`nonetheless.
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`63.
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`Attorney fees. Vita Water is entitled to recover reasonable and necessary attorney
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`fees for prosecuting this suit under Section 17.50(d) of the Texas Business and Commerce Code.
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`VI.
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`JURY DEMAND
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`64.
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`Vita Water demands a jury trial and tenders the appropriate fee with this original
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`complaint.
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`VII.
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`PRAYER FOR RELIEF
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`WHEREFORE, PREMISES CONSIDERED, plaintiff Salvare La Vita Water, LLC
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`respectfully requests that this Court issue citation for defendants Crazy Bottling Company, LLC,
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`Famous Mineral Water Company, LP, and Famous Water Holdings, LLC to appear and answer
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`and that following a trial on the merits, Vita Water be awarded judgment against Defendants for
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`the following:
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`i.
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`ii.
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`iii.
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`iv.
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`v.
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`vi.
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`and
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`vii.
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`Actual damages;
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`Statutory damages;
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`Exemplary damages;
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`Prejudgment and post-judgment interest at the maximum rates allowed by law;
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`Attorney’s fees;
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`Costs of court;
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`All such other and further relief, at law or in equity, to which Vita Water may be
`justly entitled.
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`Dated: November 23, 2020
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`Respectfully submitted,
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`HOWRY BREEN & HERMAN, L.L.P.
`
`____________________________________
`James C. Hatchitt
`State Bar No. 24072478
`jhatchitt@howrybreen.com
`Christopher Lavorato (motion for admission
`pro hac vice forthcoming)
`State Bar No. 24096074
`1900 Pearl Street
`Austin, Texas 78705-5408
`Tel. (512) 474-7300
`Fax (512) 474-8557
`
`Ara Jabagchourian (motion for admission pro
`hac vice forthcoming)
`ara@arajlaw.com
`LAW OFFICES OF ARA JABAGCHOURIAN, P.C.
`1650 South Amphlett Boulevard, Suite 216
`San Mateo, California 94402
`Tel. (650) 437-6840
`Fax (650) 403-0909
`
`Attorneys for Plaintiff Salvare La Vita Water,
`LLC
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