2 CIT/ SOS/ ES
`
`MiroDx LLC,
`Plaintiff,
`
`v.
`
`DC-24-05317
`
`No.
`
`FILED
`4/9/2024 4:05 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Gay Lane DEPUTY
`
`IN THE DISTRICT COURT
`
`68th
`
`JUDICIAL DISTRICT
`
`STERILIS SOLUTIONS, LLC, and
`SPECTRUM MEDICAL LENDING, LLC
`Defendants.
`DALLAS COUNTY, TEXAS
`PLAINTIFF'S ORIGINAL PETITION BREACH OF CONTRACT
`Plaintiff, MiroDx LLC, files this original petition against defendant, STERILIS
`SOLUTIONS, LLC, and SPECTRUM MEDICAL LENDING, LLC and alleges as follows:
`DISCOVERY-CONTROL PLAN
`1.
`Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil 190.4
`and affirmatively pleads that this suit is not governed by the expedited-actions
`process in Texas Rule of Civil Procedure 169 because plaintiff seeks monetary
`relief over $250,000.
`RELIEF
`2.
`Plaintiff seeks monetary relief over $1,000,000.
`PARTIES
`3.
`Plaintiff, MiroDx LLC, is limited liability company doing business in Dallas County
`at 7920 Beltline Rd., Suite 210 Dallas TX USA 75254.
`Defendant, STERILIS SOLUTIONS, LLC, a Delaware limited liability company
`and existing under the laws of Delaware, whose office is located in the state of
`Massachusetts at 85 Swanson Road, Suite 315, Boxborough, Massachusetts
`01719, may be served with process by serving the Texas Secretary of State at
`1019 Brazos Street, Austin, Texas 78701, as its agent for service because
`defendant engages in business in Texas but does not maintain a regular place of
`business in Texas or a designated agent for service of process, and this suit
`arose from defendant's business in this state.
`Defendant, Spectrum Medical Lending, LLC ("Spectrum") is an Illinois limited
`liability company with its principal place of business address registered at 414 N.
`Orleans St., Chicago, Illinois 60654, may be served with process by serving the
`Texas Secretary of State at 1019 Brazos Street, Austin, Texas 78701, as its
`agent for service because defendant engages in business in Texas but does not
`maintain a regular place of business in Texas or a designated agent for service
`of process, and this suit arose from defendant's business in this state.
`JURISDICTION
`
`4.
`
`5.
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`PLAINTIFF'S ORIGINAL PETITION BREACH OF CONTRACT
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`Page 1 of 5
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`6.
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`8.
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`9.
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`10.
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`11.
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`12.
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`The Court has subject-matter jurisdiction over the lawsuit because the amount in
`controversy exceeds this Court's minimum jurisdictional requirements.
`FACTS
`7.
`The Plaintiff currently maintains a supply agreement by assignment with
`defendants.
`The original agreement between Sterilis and Seroclinix Labs Inc, Ex 1 Supply
`Agreement Between Sterilis Solutions, LLC and Seroclinix Labs, Inc.; was
`assigned and amended to assign from the original purchaser Seroclinix to Mirodx
`LLC the Assignee and Amended Purchaser. Exhibit 2 Assignment and First
`Amendment to Supply Agreement Between Sterilis Solutions, LLC and Seroclinix
`Labs, Inc.
`Subsequently there was an Supply Agreement Between Sterilis Solutions, LLC
`and Seroclinix Labs, Inc. Ex. 3.
`In early 2020, Praxeo Health and Seroclinix Labs (collectively, "Seroclinix") were
`working with potential suppliers of antibody tests to distribute into its networks of
`health plans, major payors and large enterprise clients in response to the
`COVID-19 pandemic. In doing so, MiroDX realized there was a robust appetite
`for a US-manufactured product. Seroclinix was introduced to Sterilis Solutions,
`because Sterilis Solutions was distributing a Made in the USA product - the
`Quikpac II (SARS-CoV-2) (COVID-19) IgG & IgM rapid antibody test kit ("Test
`Kit") manufactured by Syntron Bioresearch, Inc./True Diagnostics, LLC
`(collectively, "Manufacturer").
`At that time, the Test Kits were authorized for commercial distribution under
`Section IV(D) of the FDA's March 16, 2020 rules and with that FDA guidance,
`Seroclinix Labs entered into an Agreement with Sterilis Solutions to purchase
`and distribute the Test Kits ("Seroclinix Agreement").
`Under the terms of the Seroclinix Agreement, the initial volume was for 1.6mm
`Test Kits at the price of $4.00USD by mid to late Summer 2020. The payment
`terms were fifty percent (50%) down and the balance due, fifteen (15) days after
`the Test Kits were shipped.
`Subsequently in early April 2020 GIBD, LLC wired an initial $3,200,000.00USD
`on behalf of Seroclinix to Sterilis Solutions (this was done in 2 transactions
`approximately a week apart). Additional balance payments on the Test Kits were
`made by Seroclinix Labs and MiroDX, LLC.
`14. MiroDX, LLC was formed in late May 2020 to accommodate the Manufacturer
`who believed that Seroclinix's relationship with a competitor (the Chinese
`company Biotest Biotech) was in conflict with its product distribution.
`Seroclinix was and continues to be the GMP for a product made out of Finland.
`The Seroclinix Agreement was assigned to MiroDX, LLC, who does not have any
`
`13.
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`15.
`16.
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`PLAINTIFF'S ORIGINAL PETITION BREACH OF CONTRACT
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`17.
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`18.
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`19.
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`20.
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`common ownership with Seroclinix.
`After the Seroclinix assignment, MiroDX, LLC did the following:
`assumed the GIBD, LLC debt owed by Seroclinix;
`a.
`continued efforts to commercially distribute the Test Kits; and
`b.
`made additional balance payments on the Test Kits as they were
`c.
`manufactured and shipped by Syntron/True Diagnostics.
`Shortly after MiroDX assumed the Seroclinix Agreement, the Test Kits were
`delisted by the FDA and could not be commercially distributed in the US. A total
`of 470,000 Test Kits were shipped and a total of 427,000 Test Kits cannot be
`commercially distributed. The manufacturer issued an RMA for the unsellable
`inventory, which was shipped back as required.
`Defendants refused to refund the monies related to the returned test kits that
`could not be commercially distributed and were delisted by the FDA and returned
`to the manufacturer.
`Plaintiff made demand on the Defendants to return the funds, and the
`Defendants refused to return the requested $3,200,000; expended for FDA
`rejected test kits produced and sold by the Defendants.
`BREACH OF CONTRACT
`On 10 April 2020, plaintiff and defendant executed a valid and enforceable
`21.
`written contract. Plaintiff attaches a copy of the contract as Exhibit 1 and
`incorporates it by reference. The contract provided that plaintiff would deliver
`salable product test kits, approved by the FDA.
`The defendants did not deliver the FDA approved test kits.
`Plaintiff fully performed as required and was excused from performing plaintiff's
`further contractual obligations because an approval by the FDA was a necessary
`requisite to the sale of the test kits in the United States. Defendants knew that
`there was no FDA approval when the Test Kits were returned and the demand
`for the return of the $3,200,000 was made.
`Defendant materially breached the contract by selling unapproved Test Kits as
`required by the FDA.
`Defendant's breach caused injury to plaintiff, which resulted in the following
`damages: loss of reputation, and loss of $3,200,000
`Plaintiff seeks unliquidated damages within the jurisdictional limits of this Court.
`Plaintiff seeks liquidated damages in the amount of at least $3,200,000, which is
`within the jurisdictional limits of this Court.
`
`22.
`23.
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`24.
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`25.
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`26.
`27.
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`PLAINTIFF'S ORIGINAL PETITION BREACH OF CONTRACT
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`28.
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`32.
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`34.
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`Attorney fees. Plaintiff is entitled to recover reasonable and necessary attorney
`fees under Texas Civil Practice & Remedies Code chapter 38 because this suit
`is for breach of contract. Plaintiff retained counsel, who presented plaintiff's claim
`to defendant and defendant's duly authorized agents. Defendant did not tender
`the amount owed within 30 days of the date the claim was presented.
`JURY DEMAND
`29.
`Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
`CONDITIONS PRECEDENT
`30.
`All conditions precedent to plaintiff's claim for relief have been performed or have
`occurred.
`OBJECTION TO ASSOCIATE JUDGE
`Plaintiff OBJECTS to the referral of this case to any associate judge for any
`31.
`hearing, a trial on the merits, or presiding at a jury trial.
`Plaintiff objects to any hearing or trial by submission except as specifically
`permitted by the Texas Rules of Civil Procedure or the Civil Practice and
`Remedies Code or applicable statute and the Texas Constitution.
`REQUEST FOR A COURT REPORTER
`33.
`Plaintiff requests the Court to require a court reporter at any conference, hearing
`or trial, or Court activity.
`Under Texas Government Code § 52.046. General Powers and Duties
`Defendants request, an official court reporter TO:
`a.
`Attend all sessions;
`b.
`Take full shorthand notes of oral testimony offered before the court,
`including objections made to the admissibility of evidence, court rulings
`and remarks on the objections, and exceptions to the rulings;
`Take full shorthand notes of closing arguments, including objections to the
`arguments, court rulings and remarks on the objections, and exceptions to
`the rulings;
`Take full shorthand notes of any oral motion made in the court, including
`objections to the arguments, court ruling and remarks on the objections,
`and exceptions to the ruling;
`Preserve the notes for future reference for three years from the date on
`which they were taken; and
`Furnish a transcript of the reported evidence or other proceedings, in
`whole or in part, as provided by the chapter upon request by any party for
`the transcript.
`NOTICE OF EMAIL
`
`c.
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`d.
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`e.
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`f.
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`PLAINTIFF'S ORIGINAL PETITION BREACH OF CONTRACT
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`35. NOTICE IS HEREBY GIVEN THAT THE ONLY EMAIL ADDRESS THAT WILL
`BE MONITORED OR RESPONDED TO IN THE ABOVE NUMBERED AND
`CAPTIONED LAWSUIT IS COURTDOCUMENTS@MOSSERLAW.COM. NO
`PERSONAL EMAIL ADDRESS WILL BE MONITORED OR RESPONDED TO.
`OBJECTION TO ANY ELECTRONIC OR VIDEOCONFERENCE HEARINGS
`36. A party can object to any method of appearance at a court proceeding and state
`good cause for why the method should not be used. Tex. R. Civ. P. 21d(d).
`37. Plaintiff requires that ALL hearings be administered in person and not via
`electronic, video or tele-conference.
`PRAYER
`38.
`For these reasons, plaintiff asks that the Court issue citation for defendants to
`appear and answer, and that plaintiff be awarded a judgment against defendant
`for the following:
`a.
`Actual damages.
`b.
`Prejudgment and postjudgment interest.
`c.
`Court costs.
`d.
`Attorney fees.
`e.
`All other relief to which plaintiff is entitled.
`
`Respectfully submitted, MOSSER LAW PLLC
`
`By: /s/ James C. Mosser
`James C. Mosser
`Texas Bar No. 00789784
`Nicholas D. Mosser
`Texas Bar No. 24075405
`Jacob R. Barfield
`Texas Bar No. 24129303
`Email: courtdocuments@mosserlaw.com
`8100 Dallas Parkway Suite 115A
`Plano, Texas 75024
`Tel. (972) 733-3223
`Lawyers for Plaintiff
`
`PLAINTIFF’S ORIGINAL PETITION
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