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Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.2 Page 1 of 11
`
`
`
`Zack L. Winzeler, USB #12280
`Adam D. Ott, USB #17093
`PARSONS BEHLE & LATIMER
`201 South Main Street, Suite 1800
`Salt Lake City, Utah 84111
`Telephone: 801.532.1234
`Facsimile: 801.536.6111
`ZWinzeler@parsonsbehle.com
`AOtt@parsonsbehle.com
`ecf@parsonsbehle.com
`
`Attorneys for Plaintiff Home View Technologies, Inc.
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
`
`HOME VIEW TECHNOLOGIES, INC. dba
`LIVEVIEW TECHNOLOGIES, a Utah
`corporation,
`
`Plaintiff,
`
`vs.
`
`BMMPR INC., a California corporation,
`
`
`
`COMPLAINT
`
`Case No. 2:20-cv-00664-JCB
`
`Magistrate Judge Jared C. Bennett
`
`
`
`
`
`
`Defendant.
`
`Plaintiff Home View Technologies, Inc. dba LiveView Technologies (“LVT”), by and
`
`through its undersigned counsel, and in support of its claims for relief against defendant BMMPR
`
`Inc. (“BMMPR”), alleges as follows:
`
`I.
`
`PARTIES
`
`1.
`
`LVT is a Utah corporation doing business in the State of Utah, with its principal
`
`place of business in Orem, Utah.
`
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`Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.3 Page 2 of 11
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`
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`2.
`
`BMMPR is a California corporation doing business in the State of California, with
`
`its principal place of business in San Diego, California.
`
`II.
`
`JURISDICTION AND VENUE
`
`3.
`
`This Court has subject-matter jurisdiction over this action pursuant to the
`
`provisions of 28 U.S.C. § 1332 because the amount in controversy exceeds the sum or value of
`
`$75,000, exclusive of interest and costs, and is between citizens of different states.
`
`4.
`
`This Court has specific personal jurisdiction over BMMPR under the BMMPR
`
`Purchase Agreement (the “Purchase Agreement”) at issue in this lawsuit, under which the parties
`
`agreed to “submit to the jurisdiction of the state and federal courts of the State of Utah for the
`
`purpose of resolving any dispute arising out of or resulting from [the] Agreement.” (Purchase
`
`Agreement, Exh. A, § 10.) In addition, this Court has specific personal jurisdiction over BMMPR
`
`under both the Utah long-arm statute and the Due Process Clause of the United States Constitution
`
`because it transacted business and contracted to supply services within the State of Utah.
`
`5.
`
`Venue is proper pursuant to 28 U.S.C. § 1391 because a substantial part of the
`
`events giving rise to this claim occurred in this juridical district.
`
`III. GENERAL ALLEGATIONS
`
`6.
`
`LVT is in the business of providing video surveillance and security solutions to its
`
`clients.
`
`7.
`
`A large part of LVT’s business is derived from its state-of-the-art Mobile Solar
`
`Security Trailers, which are portable trailers consisting of a combination of solar panels, battery
`
`packs, two-way speakers, floodlights, and its cutting-edge security cameras fixed to expandable
`
`towers (the “LVT Trailers”).
`
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`Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.4 Page 3 of 11
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`
`
`8.
`
`LVT sells and leases the LVT Trailers to customers who place them in areas that
`
`require surveillance or monitoring (e.g., construction sites, parking lots, storefronts, etc.).
`
`9.
`
`In response to potential acts of vandalism and tampering, resulting in damage to the
`
`LVT Trailers, LVT sought out a solution capable of detecting and relaying attempts to tamper with
`
`the LVT Trailers in real time.
`
`10.
`
`In its search for a supplier of such a system, LVT came in contact with BMMPR,
`
`who represented to LVT that it was a company that could supply LVT with a security system that
`
`would prevent a person from tampering with or damaging LVT’s Trailers.
`
`11.
`
`BMMPR specifically represented to LVT that is had the expertise, experience,
`
`technology and ability to deliver what it termed the “Bmmpr High Performance Protection System
`
`(BHPPS)” and that the BHPPS System contained a state of the art “Capacitive Touch Detection
`
`System” (“CTDS”).
`
`12.
`
`BMMPR also represented that the BHPPS system would detect anyone tampering
`
`with or damaging an LVT Trailer and immediately notify LVT of such an event.
`
`13.
`
`On Tuesday, February 4, 2020, LVT and BMMPR met at LVT’s Orem, Utah
`
`facility to discuss BHPPS and CTDS Systems and how they would work to prevent potential
`
`tampering issues with the LVT Trailers.
`
`14.
`
`Over the course of the next several weeks, the parties entertained discussions on an
`
`anti-tampering solution for the LVT Trailers developed by BMMPR.
`
`15.
`
`BMMPR stated that it was confident that BMMPR had expertise and technology to
`
`develop a solution for LVT through the use of the BHPPS and CTDS systems. LVT, however,
`
`made it clear that it was not interested in paying BMMPR to develop such a product or to pay for
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`Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.5 Page 4 of 11
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`
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`a retrofitting design for the LVT Trailers. Instead, LVT expressed interest in purchasing a product
`
`that was already proven that provided the necessary anti-tampering functions for the LVT Trailer.
`
`16.
`
`The CEO of BMMPR, Marko Mandaric (“Mr. Mandaric”), was adamant that
`
`BMMPR could provide LVT with a satisfactory trailer anti-tampering solution through the use of
`
`the BMMPR BHPPRS and CTDS systems.
`
`17.
`
`In these discussions, LVT made clear to BMMPR that it would not sign any
`
`purchase order without first approving a proof of concept, and again reiterated that it was not
`
`interested in fronting development costs in any way for a new product. Again, BMMPR assured
`
`LVT that its BHPPRS and CTDS systems would work on the LVT Trailers.
`
`18.
`
`On April 16, 2020, LVT and BMMPR entered into that certain “BMMPR Purchase
`
`Agreement” (the “Purchase Agreement”), wherein BMMPR agreed to provide LVT with a proof
`
`of concept for a solution that could be installed on the LVT Trailers capable of detecting tampering
`
`and which covered the trailer. This solution was dubbed the BMMPR High Performance Protection
`
`System (“BHPPS V1.0”).
`
`19.
`
`The Purchase Agreement states that upon written, signed approval of the proof of
`
`concept of the BHPPS V1.0, LVT would purchase 1,000 units of the BHPPS V1.0 at a per unit
`
`price of $224, totaling $224,000 (the “Purchase Price”). (See Purchase Agreement, § 4.1; id. at
`
`Exh. A, § 2; and id. at Exh. B, p. 2.)
`
`20.
`
`The Purchase Price was to be paid as follows:
`
`a.
`
`Phase 1: 25% of the Purchase Price would become payable upon
`
`“completion and approval of proof of concept by client [LVT].”
`
`b.
`
`Phase 2: an additional 25% of the Purchase Price would become payable
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`Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.6 Page 5 of 11
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`
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`upon production of a prototype.
`
`c.
`
`Phase 3: the remaining 50% would become payable upon production and
`
`shipment of the actual BHPPS V1.0 hardware “as agreed…” between the parties.
`
`(Purchase Agreement, at Exh. C.)
`
`21.
`
`Notwithstanding minor delays due to the COVID-19 Pandemic, LVT dutifully
`
`performed its obligations under the Purchase Agreement by, among other things, providing
`
`BMMPR with a fully equipped LVT Trailer (valued at over $25,000) to enable BMMPR to create
`
`its proof of concept for LVT’s review and approval.
`
`22.
`
`On June 10, 2020, BMMPR informed LVT that it was ready to provide a
`
`demonstration of the BHPPS V1.0 proof of concept.
`
`23.
`
`The BHPPS V1.0 proof of concept demonstration took place on July 10, 2020 and
`
`was attended by Charlie Adams from LVT (“Mr. Adams”).
`
`24. Mr. Adams was underwhelmed by the BHPPS V1.0 proof of concept
`
`demonstration. Specifically, he did not believe the BHPPS V1.0 satisfied the most fundamental
`
`requirement of the solution required by LVT to protect its LVT Trailers—namely, BHPPS V1.0’s
`
`capacitive touch features did not apply to the entire LVT Trailer. Rather, the capacitive touch
`
`features only applied to certain smaller handles that would be required to be added to the LVT
`
`Trailers. The proposed system would have only covered a very limited amount of the Trailer (
`
`approximately 1% of the LVT Trailer).
`
`25.
`
`Notwithstanding the disappointing demonstration and the absence of a signed
`
`writing by the parties approving the BHPPS V1.0 proof of concept, BMMPR nevertheless issued
`
`a $56,000 invoice to LVT on July 10, 2020 for BMMPR’s purported costs in developing the
`
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`Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.7 Page 6 of 11
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`
`
`BHPPS V1.0 project (the “First Invoice”).
`
`26.
`
`In response, LVT informed BMMPR that it had not been satisfied with BHPPS
`
`V1.0’s capabilities and that the proof of concept would need to be improved upon substantially if
`
`LVT was to move forward with the Purchase Agreement.
`
`27.
`
`In an email to LVT dated July 29, 2020, Stephen Kruger, Vice President of
`
`BMMPR (“Mr. Kruger”), acknowledged that BMMPR was working to improve on BHPPS V1.0,
`
`and attached a document containing BMMPR’s “approach to meet your expectations . . . .” The
`
`document referred to a supposedly improved product dubbed “BHPPS V2.0”.
`
`28.
`
`In that same email, Mr. Kruger stated he would prepare a “Change of Scope”
`
`document and adjust Exhibit B of the Purchase Agreement to reflect the updated costs and
`
`capabilities of BHPPS V2.0.
`
`29.
`
`At no point did LVT sign off on or otherwise approve any proof of concept that had
`
`been engineered by BMMPR.
`
`30. When pressed to ensure that BHPPS V2.0 would satisfy the required set of
`
`capabilities expressed at the outset of the project by LVT, BMMPR assured LVT that it could
`
`incorporate the desired capabilities, though it may result in the final units costing more than
`
`initially contemplated in the Purchase Price. Nevertheless, BMMPR assured LVT that any increase
`
`in the Purchase Price would be nominal and reasonable.
`
`31.
`
`LVT believed that although BHPPS V2.0 would function differently and was
`
`slightly more expensive than BHPPS V1.0, BHPPS V2.0 would offer the desired capabilities that
`
`LVT required as set forth in the Purchase Agreement. Specifically, LTV expected that BHPPS
`
`V2.0 would protect the entire LVT Trailer (i.e., and not only small portions of it) and that it would
`
`4835-7075-5788v4
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`

`Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.8 Page 7 of 11
`
`
`
`alert LVT of someone tampering with its Trailer.
`
`32.
`
`LVT did not object to the projected modest cost increases, but trusted that any
`
`increase in the Purchase Price would be documented in a signed writing between the parties.
`
`33.
`
`Eventually BMMPR proved LVT a cost estimate, claiming that BHPPS V2.0 proof
`
`of concept was ready to move forward into production but that it would cost upwards of $589 per
`
`unit—i.e., more than double the Purchase Price.
`
`34.
`
`LVT still did not believe the BHPPS V2.0 would satisfy its capability requirements
`
`for the LVT Trailers.
`
`35.
`
`In a last-ditch attempt to address LVT’s concerns, BMMPR suggested an updated
`
`“BHPPS V2.1” solution that would integrate LVT’s desired level of tamper protections as well as
`
`serial communication units at a price of $698 per unit.
`
`36.
`
`After many meetings with BMMPR and after a number of failed attempts by
`
`BMMPR, it became apparent that BMMPR could not deliver the product it promised under the
`
`Purchase Agreement.
`
`37.
`
`On August 27, 2020, LVT informed BMMPR that it was not interested in moving
`
`forward with either BHPPS V2.0 or V2.1 given the unreasonable increases in price, but that it
`
`would still be interested in discussing advancing the BHPPS V1.0 provided it could integrate
`
`several of the features from BHPPS V2.0, including ultrasonic tamper detection.
`
`38. Mr. Mandaric replied that BMMPR would be happy to advance to the next phase
`
`of development using the BHPPS V1.0 proof of concept “so we can deliver the 1,000 units you
`
`ordered as quickly as possible.”
`
`39.
`
`LVT replied that it believed BHPPS V1.0 had yet to satisfy the requirements set
`
`4835-7075-5788v4
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`

`Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.9 Page 8 of 11
`
`
`
`forth when signing the Purchase Agreement and did not authorize BMMPR to proceed with
`
`creating a BHPPS V1.0 prototype.
`
`40.
`
`On September 8, 2020, Mr. Mandaric sent an email to the CEO of LVT, Ryan Porter
`
`(“Mr. Porter”), requesting clarification on whether or not LVT would be accepting the BHPPS
`
`V2.1 proof of concept and demanding payment of the First Invoice.
`
`41. Mr. Porter informed Mr. Mandaric that LVT had never approved any proof of
`
`concept to date and that LVT did not believe it owed any payment obligation to BMMPR.
`
`42. Mr. Mandaric replied, stating his belief that LVT had approved the BHPPS V1.0
`
`proof of concept and that he believed payment was due immediately.
`
`43. When prompted, Mr. Mandaric could not produce a signed writing evidencing his
`
`claim that LVT had signed off on any proof of concept or agreed to pay any portion of the Purchase
`
`Price.
`
`44.
`
`In light of BMMPR’s prolonged failure to provide an adequate product as
`
`contemplated in the Purchase Agreement, the nearly tripling in estimated costs to deliver the
`
`promised product, and BMMPR’s issuance of unauthorized invoices for payments that had not
`
`been approved by LVT, LVT determined BMMPR to be in material breach of the Purchase
`
`Agreement and notified BMMPR that it would be terminating the Purchase Agreement via email
`
`on September 15, 2020.
`
`45.
`
`Upon receiving notice that LVT considered the Purchase Agreement to be
`
`terminated, BMMPR issued an invoice to LVT totaling $165,000.00, due immediately (the
`
`“Termination Invoice”).
`
`4835-7075-5788v4
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`8
`
`

`

`Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.10 Page 9 of 11
`
`
`
`46.
`
`The Termination Invoice was one page long with only three line items: (1) a non-
`
`itemized “cancellation fee” of $50,000; (2) a non-itemized fee for “internal expenses for time and
`
`materials” in the amount of $110,000; and (3) a $5,000 credit redeemable only if LVT chose to
`
`leave its trailer in the possession of BMMPR.
`
`47.
`
`As of the date hereof, BMMPR has yet to deliver an acceptable proof of concept to
`
`LVT, much less received approval to begin manufacturing or invoicing LVT for the development
`
`and production of units.
`
`48.
`
`Under the Purchase Agreement, BMMPR is not entitled to either the cancellation
`
`fee nor the itemized fee.
`
`49.
`
`BMMPR remains in possession of the LVT Demo Trailer.
`
`IV.
`
`FIRST CLAIM FOR RELIEF
`
`(Breach of Purchase Agreement)
`
`50.
`
`LVT incorporates by reference the allegations in the foregoing paragraphs as if
`
`fully set forth herein.
`
`51.
`
`The Purchase Agreement between LVT and BMMPR is a valid and enforceable
`
`contract.
`
`52.
`
`53.
`
`LVT has performed all of its obligations under the Purchase Agreement.
`
`BMMPR has breached the Purchase Agreement in myriad ways, including, as set
`
`forth herein, (i) issuing the First Invoice without written and signed approval of a proof of concept;
`
`(ii) issuing the Termination Invoice without written and signed approval of a proof of concept; and
`
`(iii) refusing to return LVT’s Demo Trailer unless LVT first pays the wrongfully issued First
`
`Invoice and Termination Invoice.
`
`4835-7075-5788v4
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`

`Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.11 Page 10 of 11
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`
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`54.
`
`As a result of BMMPR’s breaches of the Purchase Agreement, LVT has suffered
`
`monetary damages in an amount to be determined by the trier-of-fact.
`
`V.
`
`SECOND CLAIM FOR RELIEF
`
`(Declaratory Judgment)
`
`55.
`
`LVT incorporates by reference the allegations in the foregoing paragraphs as if
`
`fully set forth herein.
`
`56.
`
`57.
`
`LVT and BMMPR are adverse parties.
`
`The conflict between LVT and BMMPR is ripe for judicial resolution because
`
`BMMPR is threatening legal action against LVT for LVT’s refusal to pay the wrongfully issued
`
`Termination Invoice.
`
`58.
`
`Pursuant to 28 U.S.C. § 2201(a), LVT is entitled to a judgment against BMMPR
`
`declaring as follows:
`
`a.
`
`That, as a result of BMMPR’s breaches of the Purchase Agreement, LVT
`
`does not owe any monies under the Purchase Agreement to BMMPR, including, but not
`
`limited to, amounts BMMPR seeks to collect from LVT under the First Invoice or the
`
`Termination Invoice; and
`
`b.
`
`That LVT is entitled to return of the LVT Demo Trailer from BMMPR.
`
`VI. REQUEST FOR RELIEF
`
`WHEREFORE, LVT requests judgment against BMMPR as follows:
`
`1.
`
`On its First Claim for Relief for breach of contract, for monetary damages in an
`
`amount to be determined at trial.
`
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`Case 2:20-cv-00664-JCB Document 2 Filed 09/22/20 PageID.12 Page 11 of 11
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`
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`2.
`
`On its Second Claim for Relief, for a declaratory judgment against BMMPR that
`
`(i) LVT does not owe any monies under the Purchase Agreement to BMMPR, including, but not
`
`limited to, amounts BMMPR seeks to collect from LVT under the First Invoice or the Termination
`
`Invoice, and (ii) LVT is entitled to return of the LVT Demo Trailer from BMMPR.
`
`3.
`
`For such other and further relief as the Court deems proper and just.
`
`DATED September 22, 2020.
`
`
`
`
`
`
`/s/ Zack L. Winzeler
`Zack L. Winzeler
`Adam D. Ott
`PARSONS BEHLE & LATIMER
`
`Attorneys for Plaintiff Home View
`Technologies, Inc.
`
`4835-7075-5788v4
`
`11
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`

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