`
`
`
`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
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`1.
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`LVT is a Utah corporation doing business in the State of Utah, with its principal
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`place of business in Orem, Utah.
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`2.
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`BMMPR is a California corporation doing business in the State of California, with
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`its principal place of business in San Diego, California.
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`II.
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`JURISDICTION AND VENUE
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`3.
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`This Court has subject-matter jurisdiction over this action pursuant to the
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`provisions of 28 U.S.C. § 1332 because the amount in controversy exceeds the sum or value of
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`$75,000, exclusive of interest and costs, and is between citizens of different states.
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`4.
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`This Court has specific personal jurisdiction over BMMPR under the BMMPR
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`Purchase Agreement (the “Purchase Agreement”) at issue in this lawsuit, under which the parties
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`agreed to “submit to the jurisdiction of the state and federal courts of the State of Utah for the
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`purpose of resolving any dispute arising out of or resulting from [the] Agreement.” (Purchase
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`Agreement, Exh. A, § 10.) In addition, this Court has specific personal jurisdiction over BMMPR
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`under both the Utah long-arm statute and the Due Process Clause of the United States Constitution
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`because it transacted business and contracted to supply services within the State of Utah.
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`5.
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`Venue is proper pursuant to 28 U.S.C. § 1391 because a substantial part of the
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`events giving rise to this claim occurred in this juridical district.
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`III. GENERAL ALLEGATIONS
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`6.
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`LVT is in the business of providing video surveillance and security solutions to its
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`clients.
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`7.
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`A large part of LVT’s business is derived from its state-of-the-art Mobile Solar
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`Security Trailers, which are portable trailers consisting of a combination of solar panels, battery
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`packs, two-way speakers, floodlights, and its cutting-edge security cameras fixed to expandable
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`towers (the “LVT Trailers”).
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`8.
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`LVT sells and leases the LVT Trailers to customers who place them in areas that
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`require surveillance or monitoring (e.g., construction sites, parking lots, storefronts, etc.).
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`9.
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`In response to potential acts of vandalism and tampering, resulting in damage to the
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`LVT Trailers, LVT sought out a solution capable of detecting and relaying attempts to tamper with
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`the LVT Trailers in real time.
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`10.
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`In its search for a supplier of such a system, LVT came in contact with BMMPR,
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`who represented to LVT that it was a company that could supply LVT with a security system that
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`would prevent a person from tampering with or damaging LVT’s Trailers.
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`11.
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`BMMPR specifically represented to LVT that is had the expertise, experience,
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`technology and ability to deliver what it termed the “Bmmpr High Performance Protection System
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`(BHPPS)” and that the BHPPS System contained a state of the art “Capacitive Touch Detection
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`System” (“CTDS”).
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`12.
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`BMMPR also represented that the BHPPS system would detect anyone tampering
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`with or damaging an LVT Trailer and immediately notify LVT of such an event.
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`13.
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`On Tuesday, February 4, 2020, LVT and BMMPR met at LVT’s Orem, Utah
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`facility to discuss BHPPS and CTDS Systems and how they would work to prevent potential
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`tampering issues with the LVT Trailers.
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`14.
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`Over the course of the next several weeks, the parties entertained discussions on an
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`anti-tampering solution for the LVT Trailers developed by BMMPR.
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`15.
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`BMMPR stated that it was confident that BMMPR had expertise and technology to
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`develop a solution for LVT through the use of the BHPPS and CTDS systems. LVT, however,
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`made it clear that it was not interested in paying BMMPR to develop such a product or to pay for
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`a retrofitting design for the LVT Trailers. Instead, LVT expressed interest in purchasing a product
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`that was already proven that provided the necessary anti-tampering functions for the LVT Trailer.
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`16.
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`The CEO of BMMPR, Marko Mandaric (“Mr. Mandaric”), was adamant that
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`BMMPR could provide LVT with a satisfactory trailer anti-tampering solution through the use of
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`the BMMPR BHPPRS and CTDS systems.
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`17.
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`In these discussions, LVT made clear to BMMPR that it would not sign any
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`purchase order without first approving a proof of concept, and again reiterated that it was not
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`interested in fronting development costs in any way for a new product. Again, BMMPR assured
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`LVT that its BHPPRS and CTDS systems would work on the LVT Trailers.
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`18.
`
`On April 16, 2020, LVT and BMMPR entered into that certain “BMMPR Purchase
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`Agreement” (the “Purchase Agreement”), wherein BMMPR agreed to provide LVT with a proof
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`of concept for a solution that could be installed on the LVT Trailers capable of detecting tampering
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`and which covered the trailer. This solution was dubbed the BMMPR High Performance Protection
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`System (“BHPPS V1.0”).
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`19.
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`The Purchase Agreement states that upon written, signed approval of the proof of
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`concept of the BHPPS V1.0, LVT would purchase 1,000 units of the BHPPS V1.0 at a per unit
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`price of $224, totaling $224,000 (the “Purchase Price”). (See Purchase Agreement, § 4.1; id. at
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`Exh. A, § 2; and id. at Exh. B, p. 2.)
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`20.
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`The Purchase Price was to be paid as follows:
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`a.
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`Phase 1: 25% of the Purchase Price would become payable upon
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`“completion and approval of proof of concept by client [LVT].”
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`b.
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`Phase 2: an additional 25% of the Purchase Price would become payable
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`upon production of a prototype.
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`c.
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`Phase 3: the remaining 50% would become payable upon production and
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`shipment of the actual BHPPS V1.0 hardware “as agreed…” between the parties.
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`(Purchase Agreement, at Exh. C.)
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`21.
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`Notwithstanding minor delays due to the COVID-19 Pandemic, LVT dutifully
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`performed its obligations under the Purchase Agreement by, among other things, providing
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`BMMPR with a fully equipped LVT Trailer (valued at over $25,000) to enable BMMPR to create
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`its proof of concept for LVT’s review and approval.
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`22.
`
`On June 10, 2020, BMMPR informed LVT that it was ready to provide a
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`demonstration of the BHPPS V1.0 proof of concept.
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`23.
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`The BHPPS V1.0 proof of concept demonstration took place on July 10, 2020 and
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`was attended by Charlie Adams from LVT (“Mr. Adams”).
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`24. Mr. Adams was underwhelmed by the BHPPS V1.0 proof of concept
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`demonstration. Specifically, he did not believe the BHPPS V1.0 satisfied the most fundamental
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`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
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`features only applied to certain smaller handles that would be required to be added to the LVT
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`Trailers. The proposed system would have only covered a very limited amount of the Trailer (
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`approximately 1% of the LVT Trailer).
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`25.
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`Notwithstanding the disappointing demonstration and the absence of a signed
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`writing by the parties approving the BHPPS V1.0 proof of concept, BMMPR nevertheless issued
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`a $56,000 invoice to LVT on July 10, 2020 for BMMPR’s purported costs in developing the
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`BHPPS V1.0 project (the “First Invoice”).
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`26.
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`In response, LVT informed BMMPR that it had not been satisfied with BHPPS
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`V1.0’s capabilities and that the proof of concept would need to be improved upon substantially if
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`LVT was to move forward with the Purchase Agreement.
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`27.
`
`In an email to LVT dated July 29, 2020, Stephen Kruger, Vice President of
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`BMMPR (“Mr. Kruger”), acknowledged that BMMPR was working to improve on BHPPS V1.0,
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`and attached a document containing BMMPR’s “approach to meet your expectations . . . .” The
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`document referred to a supposedly improved product dubbed “BHPPS V2.0”.
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`28.
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`In that same email, Mr. Kruger stated he would prepare a “Change of Scope”
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`document and adjust Exhibit B of the Purchase Agreement to reflect the updated costs and
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`capabilities of BHPPS V2.0.
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`29.
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`At no point did LVT sign off on or otherwise approve any proof of concept that had
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`been engineered by BMMPR.
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`30. When pressed to ensure that BHPPS V2.0 would satisfy the required set of
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`capabilities expressed at the outset of the project by LVT, BMMPR assured LVT that it could
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`incorporate the desired capabilities, though it may result in the final units costing more than
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`initially contemplated in the Purchase Price. Nevertheless, BMMPR assured LVT that any increase
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`in the Purchase Price would be nominal and reasonable.
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`31.
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`LVT believed that although BHPPS V2.0 would function differently and was
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`slightly more expensive than BHPPS V1.0, BHPPS V2.0 would offer the desired capabilities that
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`LVT required as set forth in the Purchase Agreement. Specifically, LTV expected that BHPPS
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`V2.0 would protect the entire LVT Trailer (i.e., and not only small portions of it) and that it would
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`alert LVT of someone tampering with its Trailer.
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`32.
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`LVT did not object to the projected modest cost increases, but trusted that any
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`increase in the Purchase Price would be documented in a signed writing between the parties.
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`33.
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`Eventually BMMPR proved LVT a cost estimate, claiming that BHPPS V2.0 proof
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`of concept was ready to move forward into production but that it would cost upwards of $589 per
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`unit—i.e., more than double the Purchase Price.
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`34.
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`LVT still did not believe the BHPPS V2.0 would satisfy its capability requirements
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`for the LVT Trailers.
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`35.
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`In a last-ditch attempt to address LVT’s concerns, BMMPR suggested an updated
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`“BHPPS V2.1” solution that would integrate LVT’s desired level of tamper protections as well as
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`serial communication units at a price of $698 per unit.
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`36.
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`After many meetings with BMMPR and after a number of failed attempts by
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`BMMPR, it became apparent that BMMPR could not deliver the product it promised under the
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`Purchase Agreement.
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`37.
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`On August 27, 2020, LVT informed BMMPR that it was not interested in moving
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`forward with either BHPPS V2.0 or V2.1 given the unreasonable increases in price, but that it
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`would still be interested in discussing advancing the BHPPS V1.0 provided it could integrate
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`several of the features from BHPPS V2.0, including ultrasonic tamper detection.
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`38. Mr. Mandaric replied that BMMPR would be happy to advance to the next phase
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`of development using the BHPPS V1.0 proof of concept “so we can deliver the 1,000 units you
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`ordered as quickly as possible.”
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`39.
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`LVT replied that it believed BHPPS V1.0 had yet to satisfy the requirements set
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`forth when signing the Purchase Agreement and did not authorize BMMPR to proceed with
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`creating a BHPPS V1.0 prototype.
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`40.
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`On September 8, 2020, Mr. Mandaric sent an email to the CEO of LVT, Ryan Porter
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`(“Mr. Porter”), requesting clarification on whether or not LVT would be accepting the BHPPS
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`V2.1 proof of concept and demanding payment of the First Invoice.
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`41. Mr. Porter informed Mr. Mandaric that LVT had never approved any proof of
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`concept to date and that LVT did not believe it owed any payment obligation to BMMPR.
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`42. Mr. Mandaric replied, stating his belief that LVT had approved the BHPPS V1.0
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`proof of concept and that he believed payment was due immediately.
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`43. When prompted, Mr. Mandaric could not produce a signed writing evidencing his
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`claim that LVT had signed off on any proof of concept or agreed to pay any portion of the Purchase
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`Price.
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`44.
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`In light of BMMPR’s prolonged failure to provide an adequate product as
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`contemplated in the Purchase Agreement, the nearly tripling in estimated costs to deliver the
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`promised product, and BMMPR’s issuance of unauthorized invoices for payments that had not
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`been approved by LVT, LVT determined BMMPR to be in material breach of the Purchase
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`Agreement and notified BMMPR that it would be terminating the Purchase Agreement via email
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`on September 15, 2020.
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`45.
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`Upon receiving notice that LVT considered the Purchase Agreement to be
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`terminated, BMMPR issued an invoice to LVT totaling $165,000.00, due immediately (the
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`“Termination Invoice”).
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`46.
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`The Termination Invoice was one page long with only three line items: (1) a non-
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`itemized “cancellation fee” of $50,000; (2) a non-itemized fee for “internal expenses for time and
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`materials” in the amount of $110,000; and (3) a $5,000 credit redeemable only if LVT chose to
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`leave its trailer in the possession of BMMPR.
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`47.
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`As of the date hereof, BMMPR has yet to deliver an acceptable proof of concept to
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`LVT, much less received approval to begin manufacturing or invoicing LVT for the development
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`and production of units.
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`48.
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`Under the Purchase Agreement, BMMPR is not entitled to either the cancellation
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`fee nor the itemized fee.
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`49.
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`BMMPR remains in possession of the LVT Demo Trailer.
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`IV.
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`FIRST CLAIM FOR RELIEF
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`(Breach of Purchase Agreement)
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`50.
`
`LVT incorporates by reference the allegations in the foregoing paragraphs as if
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`fully set forth herein.
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`51.
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`The Purchase Agreement between LVT and BMMPR is a valid and enforceable
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`contract.
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`52.
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`53.
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`LVT has performed all of its obligations under the Purchase Agreement.
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`BMMPR has breached the Purchase Agreement in myriad ways, including, as set
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`forth herein, (i) issuing the First Invoice without written and signed approval of a proof of concept;
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`(ii) issuing the Termination Invoice without written and signed approval of a proof of concept; and
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`(iii) refusing to return LVT’s Demo Trailer unless LVT first pays the wrongfully issued First
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`Invoice and Termination Invoice.
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`54.
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`As a result of BMMPR’s breaches of the Purchase Agreement, LVT has suffered
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`monetary damages in an amount to be determined by the trier-of-fact.
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`V.
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`SECOND CLAIM FOR RELIEF
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`(Declaratory Judgment)
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`55.
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`LVT incorporates by reference the allegations in the foregoing paragraphs as if
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`fully set forth herein.
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`56.
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`57.
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`LVT and BMMPR are adverse parties.
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`The conflict between LVT and BMMPR is ripe for judicial resolution because
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`BMMPR is threatening legal action against LVT for LVT’s refusal to pay the wrongfully issued
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`Termination Invoice.
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`58.
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`Pursuant to 28 U.S.C. § 2201(a), LVT is entitled to a judgment against BMMPR
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`declaring as follows:
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`a.
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`That, as a result of BMMPR’s breaches of the Purchase Agreement, LVT
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`does not owe any monies under the Purchase Agreement to BMMPR, including, but not
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`limited to, amounts BMMPR seeks to collect from LVT under the First Invoice or the
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`Termination Invoice; and
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`b.
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`That LVT is entitled to return of the LVT Demo Trailer from BMMPR.
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`VI. REQUEST FOR RELIEF
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`WHEREFORE, LVT requests judgment against BMMPR as follows:
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`1.
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`On its First Claim for Relief for breach of contract, for monetary damages in an
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`amount to be determined at trial.
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`2.
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`On its Second Claim for Relief, for a declaratory judgment against BMMPR that
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`(i) LVT does not owe any monies under the Purchase Agreement to BMMPR, including, but not
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`limited to, amounts BMMPR seeks to collect from LVT under the First Invoice or the Termination
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`Invoice, and (ii) LVT is entitled to return of the LVT Demo Trailer from BMMPR.
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`3.
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`For such other and further relief as the Court deems proper and just.
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`DATED September 22, 2020.
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`
`
`/s/ Zack L. Winzeler
`Zack L. Winzeler
`Adam D. Ott
`PARSONS BEHLE & LATIMER
`
`Attorneys for Plaintiff Home View
`Technologies, Inc.
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