united states district court eastern district of texas...

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

PRUVIT VENTURES, INC.,

Plaintiff,

vs.

AXCESS GLOBAL SCIENCES, LLC, and

FOREVERGREEN INTERNATIONAL, LLC,

Defendants.

Civil Action No. 4:15-cv-00571-ALM-CAN

(Jury)

ANSWER, COUNTERCLAIM AND THIRD-PARTY COMPLAINT AND

JURY DEMAND

Honorable Judge Amos L. Mazzant

AXCESS GLOBAL SCIENCES, LLC, and

AXCESS GLOBAL, LLC,

Counterclaimants and Third-party

Plaintiffs,

vs.

PRUVIT VENTURES, INC., LACORE LABS,

LLC, TERRY LACORE, BRIAN

UNDERWOOD, CHRISTOPHER N. HARDING,

SAVIND, INC., and KETOTECH, INC.,

Counterclaim and Third-party Defendants.

Defendant Axcess Global Sciences, LLC (“AGS”) answers the Amended Complaint of

Pruvit Ventures, Inc. as follows, with paragraph numbers corresponding to those found in the

Amended Complaint:

1. AGS admits that AGS is the exclusive licensee of ketone technology patented by

the University of South Florida. AGS admits that it sublicenses this technology pursuant to

Case 4:15-cv-00571-ALM-CAN Document 21 Filed 10/26/15 of 42 PageID #: 184

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sublicenses which require the payment of royalties which it shares with the University of South

Florida. AGS denies the remaining allegations of paragraph 1 of the Amended Complaint.

2. AGS is without knowledge or information sufficient to form a belief as to the

allegations of paragraph 2 and on that basis denies the allegations of paragraph 2 of the Amended

Complaint.

3. Admitted.



Complaint.



Complaint.

6. AGS admits that this Court has subject matter jurisdiction over this dispute

pursuant to 28 U.S.C. § 1331. AGS denies the remaining allegations of paragraph 6 of the

Amended Complaint.



Complaint.

8. Denied.

9. The allegations of paragraph 9 of the Amended Complaint consist of a legal

conclusion to which no response is required. To the extent a response is required, AGS denies

the allegations in paragraph 9 of the Amended Complaint.


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allegations of paragraph 10 and on that basis denies the allegations of paragraph 10 of the

Amended Complaint.



Amended Complaint.

12. Admitted.

13. AGS admits that Mr. LaCore, Mr. Williams, and Mr. Rogers had discussions in

May of 2014. AGS denies the remaining allegations of paragraph 13 of the Amended

Complaint.



Amended Complaint.



Amended Complaint.

16. AGS admits that Mr. LaCore had communications with representatives of AGS in

June of 2014. AGS denies the remaining allegations of paragraph 16 of the Amended

Complaint.

17. Admitted.

18. Admitted.


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Amended Complaint.



Amended Complaint.



Amended Complaint.

22. AGS admits that it was working with Mr. Williams and Mr. Lacore in July, 2014.

AGS denies the remaining allegations of paragraph 22 of the Amended Complaint.

23. AGS admits that Mr. Millet and Mr. Rogers stated in a July 18, 2014 email to Mr.

Williams and Mr. LaCore: “[W]e are now opening up communications with those companies

again immediately. We wish you both great success.” AGS denies the remaining allegations of

paragraph 23 of the Amended Complaint.

24. AGS admits that Mr. Millet and Mr. LaCore continued to have discussions

following July 18, 2014. AGS denies the remaining allegations of paragraph 24 of the Amended

Complaint.



Amended Complaint.


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Amended Complaint.

27. AGS admits that it had discussions with Mr. LaCore and representatives from

ForeverGreen after July 28, 2014. AGS denies the remaining allegations of paragraph 27 of the

Amended Complaint.



Amended Complaint.

29. Admitted.

30. Denied.

31. Admitted.

32. Admitted.

33. AGS admits that Mr. Millet sent an e-mail to Mr. Harding and Mr. Underwood on

December 12, 2014, which e-mail speaks for itself. AGS denies the remaining allegations of

paragraph 33 of the Amended Complaint.

34. AGS admits that a number of e-mails were sent from Mr. Underwood to Rob

Rogers, which e-mails speak for themselves. AGS denies the remaining allegations of paragraph

34 of the Amended Complaint.

35. AGS admits that it represented to Pruvit that USF wanted to take an equity

position in AGS. AGS denies the remaining allegations of paragraph 35 of the Amended

Complaint.


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36. AGS admits that Pruvit Ventures, Inc. and AGS signed a document entitled “Non-

exclusive Sublicense Agreement” on December 31, 2014. AGS denies the remaining allegations

of paragraph 36 of the Amended Complaint.



Amended Complaint.



Amended Complaint.



Amended Complaint.



Amended Complaint.

41. AGS admits that on or about March 18, 2015, Mr. Williams contacted AGS about

moving forward to launch a product with AGS’s ketone technologies. AGS denies the remaining

allegations of paragraph 41 of the Amended Complaint.

42. AGS admits that it pointed out to Pruvit that USF had never signed the “Non-

exclusive Sublicense Agreement.” AGS denies the remaining allegations of paragraph 42 of the

Amended Complaint.


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Amended Complaint.



Amended Complaint.



Amended Complaint.



Amended Complaint.

47. AGS admits that ForeverGreen and Pruvit began joint negotiations with AGS,

sending AGS a draft term sheet that was “for agreements with AGS for both FG and Pruvit.”

AGS denies the remaining allegations of paragraph 47 of the Amended Complaint.



Amended Complaint.

49. Admitted.

50. AGS admits that on April 17, 2015, ForeverGreen declined the counteroffer that

had been proposed by AGS. AGS is without knowledge or information sufficient to form a

belief as to whether Pruvit and ForeverGreen collectively determined they had no further

counteroffers and would be focusing on their businesses rather than further negotiation with


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Axcess Global. AGS denies the remaining allegations of paragraph 50 of the Amended

Complaint.



Amended Complaint.



Amended Complaint.



Amended Complaint.

54. Denied.



Amended Complaint.



Amended Complaint.

57. Denied.



Amended Complaint.

59. Denied.


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61. AGS admits that Pruvit and AGS signed a document entitled “Non-exclusive

Sublicense Agreement” on December 31, 2014, which provided, in part, that Pruvit had a non-

exclusive, royalty bearing, license, limited to the Licensed Field and Licensed Territory, under

the Licensed Patents to: “Make, have made, develop, use, lease, import, export, offer to sell, sell,

and have sold Licensed Products and/or Licensed Processes.” AGS denies the remaining


62. AGS admits that the “Non-exclusive Sublicense Agreement” defined “Licensed

Field” as “limited to the field of products for human consumption, with the exception of

pharmaceuticals, in the Multi-level Marketing Channel.” AGS denies the remaining allegations


63. AGS admits that the “Non-exclusive Sublicense Agreement” defined “Licensed

Territory” as “includ[ing] the United States and Canada.” AGS denies the remaining allegations


64. Denied.



Amended Complaint.

66. Denied.

67. AGS admits that provisional patent applications nos. 61/803,203 and 61/926,664

related to the use of ketogenic precursors (medium chain triglycerides and mineral salts of beta-


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hydroxybutyrate) to quickly elevate and sustain blood ketone levels. AGS denies the remaining


68. Denied. AGS affirmatively alleges that the patents defined as “Licensed Patents”

in the “Non-exclusive Sublicense Agreement” speak for themselves.

69. AGS admits that the “Non-exclusive Sublicense Agreement” provides that

“Licensee shall be entitled to receive a copy of a single serve powder formula utilizing the

Licensed Technology within five days of the signing hereof.” AGS denies the remaining


70. Denied.

71. Denied.

72. Denied.




74. Denied.

75. Denied.

76. Denied.




78. Denied.

79. AGS denies that Pruvit is entitled to Promissory Estoppel. The remaining

allegations of paragraph 79 of the Amended Complaint consist of a legal conclusion to which no


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response is required. To the extent a response is required, AGS denies the remaining allegations

in paragraph 79 of the Amended Complaint.

80. Denied.

81. Denied.

82. Denied.

83 – 96. The allegations supporting the causes of action asserted against ForeverGreen

require no response from AGS.

Relief Requested

AGS denies that Pruvit is entitled to any of the relief it requests.

Affirmative Defenses

First Affirmative Defense

Each of Pruvit’s claims fails to state facts sufficient to constitute a cause of action or

upon which relieve may be granted against AGS.

Second Affirmative Defense

The Amended Complaint and all claims asserted therein are barred to the extent that

Pruvit has agreed and consented to the actions complained of in the Amended Complaint.

Third Affirmative Defense

Some or all of Pruvit’s claims are subject to offset, recoupment and/or set off.

Fourth Affirmative Defense

Pruvit’s claims are barred based on the doctrine of unclean hands.


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Fifth Affirmative Defense

Pruvit’s claims are barred by the doctrines of release and/or novation.

Sixth Affirmative Defense

Pruvit’s claims are barred by Pruvit’s own fraud and/or misrepresentation.

Seventh Affirmative Defense

Pruvit’s fraud claims are barred because AGS’s alleged misrepresentations were true.

Eighth Affirmative Defense

Pruvit’s fraud claims are barred because AGS made no false representations that were

material, AGS made no false representations with knowledge of their falsity, AGS made no false

representations with intent to induce Pruvit’s reliance on such statements, and Pruvit did not

justifiably rely on any representations, if any, made by AGS.

Ninth Affirmative Defense

Pruvit’s Lanham Act claims fail because Pruvit has no standing to bring such claims

because it is not likely to be damaged by the complained-of conduct, because any marketing

statements made by AGS are true, and because any marketing statements made by AGS are not

relied on by the consuming public and/or have not been seen by the consuming public.


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Tenth Affirmative Defense

Pruvit’s claims for promissory estoppel fail because Pruvit could not have reasonably

relied on any representations made by AGS, if any, and because any reliance by Pruvit could not

have been foreseen by AGS.

Eleventh Affirmative Defense

Pruvit’s claims are barred in whole or in part by Pruvit’s failure to mitigate its damages,

if any.

Twelfth Affirmative Defense

Pruvit’s claims are barred by the doctrines of laches, waiver, estoppel and/or equitable

estoppel.

Thirteenth Affirmative Defense

Pruvit’s breach of contract claim fails because the conduct claimed of does not constitute

a breach of any contract between AGS and Pruvit and because Pruvit has failed to plead fraud

with particularity.

Fourteenth Affirmative Defense

Pruvit’s breach of contract claim is barred by the invalidity and/or unenforceability of the

Agreement, or provisions thereof, which Pruvit seeks to enforce.


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Fifteenth Affirmative Defense

Pruvit’s breach of contract claim is barred in that Pruvit was the first to breach the

agreement it seeks to enforce.

Sixteenth Affirmative Defense

Pruvit’s claims fail because Pruvit has suffered no damages or injury.

Seventeenth Affirmative Defense

Pruvit may not recover damages against AGS because there is no causation between the

alleged wrongdoing by AGS and any damages allegedly suffered by Pruvit.

Eighteenth Affirmative Defense

To the extent Pruvit seeks equitable relief, it is not entitled to such equitable relief

because the injury or damages suffered by Pruvit are not irreparable.

Nineteenth Affirmative Defense

To the extent Pruvit seeks equitable relief, it is not entitled to such equitable relief

because any injury suffered by Pruvit is compensable by money damages.

Twentieth Affirmative Defense

Pruvit is not entitled to recover punitive or exemplary damages because at all times AGS

acted in good faith and without malice.


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Twenty-first Affirmative Defense

Pruvit’s breach of contract claim is barred because Pruvit failed to provide notice of

default and an opportunity to cure, thereby barring Pruvit from any recovery.

Twenty-second Affirmative Defense

The Amended Complaint against AGS is filed in bad faith and constitutes a malicious

abuse of process.

Twenty-third Affirmative Defense

AGS alleges that it is presently without knowledge or information sufficient to form a

belief whether it may have additional, yet unasserted, affirmative defenses. AGS therefore

reserves the right to assert additional affirmative defenses if it acquires knowledge or

information supporting such defenses.

COUNTERCLAIM AND THIRD-PARTY COMPLAINT

Axcess Global Sciences, LLC and Axcess Global, LLC allege against Pruvit Ventures,

Inc., LaCore Labs, LLC, Terry LaCore, Brian Underwood, Christopher N. Harding, SavInd, Inc.,

and Ketotech, Inc. (jointly “Defendants”) as follows:

The Parties

1. Axcess Global Sciences, LLC (“AGS”) is a Utah limited liability company with

its principal place of business in Salt Lake City, Utah.

2. Axcess Global, LLC (“Axcess Global”) is a Utah limited liability company with

its principal place of business in Salt Lake City, Utah.


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3. Upon information and belief, Pruvit Ventures, Inc. (“Pruvit”) is a Texas

corporation with its principal place of business in Melissa, Texas.

4. Upon information and belief, LaCore Labs, LLC (“LaCore Labs”) is a Texas

limited liability company with its principal place of business in Melissa, Texas

5. Upon information and belief, Terry LaCore (“LaCore”) is an individual residing

in Melissa, Texas and is a principal of Pruvit.

6. Upon information and belief, Brian Underwood (“Underwood”) is an individual

residing in Louisville, Kentucky and is a principal of Pruvit.

7. Upon information and belief, Christopher N. Harding (“Harding”) is an individual

residing in Louisville, Kentucky and is a principal of Pruvit.

8. Upon information and belief, SavInd, Inc. (“SavInd”) is an Illinois corporation

with its principal place of business in Urbana, Illinois.

9. Upon information and belief, KetoTech, Inc. (“KetoTech”) is an Illinois

corporation with its principal place of business in Urbana, Illinois.

Jurisdiction and Venue

10. This Action arises under the Patent Laws of the United States of America, Title

35, United States Code and unfair competition under the Lanham Act, Title 15 United States

Code. This Court has jurisdiction pursuant to the provisions of 28 U.S.C. §§ 1331, 1338, 2201,

and 2202.

11. This Court has related claim jurisdiction over state law claims pursuant to 28

U.S.C. § 1338(b) and 28 U.S.C. § 1367.


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12. Upon information and belief, Pruvit has transacted business in this District, has

delivered or caused to be delivered its infringing products in this District thereby committing acts

of infringement in this district, and continues to commit acts of infringement in this District.

13. Upon information and belief, LaCore Labs has manufactured infringing goods

with knowledge that those goods would be delivered, offered for sale, and sold in this District,

thereby inducing patent infringement in this District.

14. Upon information and belief, LaCore, Underwood, and Harding have conspired

together to create Pruvit and to deliver infringing products in this District thereby committing

acts of infringement in this District.

15. Upon information and belief, SavInd and KetoTech have sold ingredients to

Pruvit and/or LaCore Labs with the knowledge and intent that such ingredients would be used in

manufacturing products that would be sold, offered for sale, and used within this District.

16. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (c)

and 1400(b).

Background

Axcess Global and Axcess Global Sciences

17. Axcess Global, LLC (“Axcess Global”) is a Utah company that specializes in

bringing products to the mass market.

18. In early 2013, Axcess Global began exploring the possibility of obtaining rights in

a technology developed at the University of South Florida for rapidly inducing and maintaining a

state of ketosis in mammals. Ketosis is a metabolic state where most of the body’s energy

supply comes from ketone bodies in the blood, in contrast to a state of glycolysis where blood

glucose provides most of the energy. Medical literature supports ketosis as positively


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influencing those with metabolic syndrome, diabetes, chronic neurodegeneration (Alzheimer’s,

Parkinson’s, dementia, ALS, etc.), traumatic brain injury, epilepsy, and other maladies.

19. On July 13, 2013, AG signed an exclusive license agreement (the “Vlahakos

License”) with Dr. Vic Vlahakos of Houston, Texas for his patent, U.S. Patent no. 6,613,356,

which claims, inter alia, the use of betahydroxybutyrate salts for weight loss (“the Vlahakos

patent”). The Vlahakos patent and Dr. Vlahakos’s rights in the Vlahakos patent were

subsequently transferred to VND Butyrate, LLC, a Texas limited liability company.

20. On September 4, 2013, after months of negotiation, Axcess Global signed an

exclusive license agreement (the “USF License”) with the University of South Florida Research

Foundation, Inc. (“USF”) for its patent-pending technology relating to the use of a nutritional

supplement including a medium chain fatty acid (“MCT oil”) and a beta-hydroxybutyrate salt

(BHB salt) which would assist in inducing and prolonging a state of ketosis in mammals.

21. The USF patent application, later filed internationally, has now been granted by

the United States Patent and Trademark Office as U.S. Patent No. 9,138,420 (the “USF patent”).

22. The USF patent names as a co-inventor Dominic D’Agostino, Ph.D, an assistant

professor in the department Molecular Pharmacology and Physiology in the Morsani College of

Medicine at the University of South Florida.

SavInd and KetoTech

23. On information and belief, SavInd is a manufacturer of nutritional supplement

ingredients.

24. In late 2013, Axcess Global was in discussions with SavInd about the possibility

of SavInd supplying Axcess Global with liquid BHB salts for use in a liquid version of a

nutritional supplement that would incorporate USF’s ketogenic technology.


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25. On December 26, 2013, Axcess Global and SavInd executed a Supply Agreement

(the “SavInd Supply Agreement”) to supply Axcess Global with liquid BHB salts. Pursuant to

the SavInd Supply Agreement, Axcess Global arranged for ForeverGreen to purchase a large

quantity of liquid BHB salts from SavInd for ForeverGreen’s use in its anticipated product

launch.

26. SavInd was then developing BHB salts in powdered form and agreed that when

such powder salts became available it would “not sell the Powder Salts to any network marketing

company except as agreed to by Axcess Global.”

27. Upon information and belief, KetoTech, Inc. was created for the sole purpose of

avoiding SavInd’s contractual obligations to Axcess Global under the SavInd Supply Agreement.

ForeverGreen

28. ForeverGreen is a network marketing company that has been operating since

2003. In late 2013 and throughout the beginning of 2014, Axcess Global and ForeverGreen were

engaged in negotiations for the sub-licensing by ForeverGreen of the USF and Vlahakos

technology and introduction by ForeverGreen of a product based on this technology through

ForeverGreen’s network of independent distributors

29. AG and ForeverGreen continued to work together towards such a business

relationship until May of 2014 when ForeverGreen disclosed to Axcess Global that it had

decided not to proceed with the launch of a ketone product.

LaCore

30. Shortly after telling Axcess Global that it was not going to launch a ketone

product, ForeverGreen introduced Axcess Global to Terry LaCore. Upon information and belief,


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LaCore is the founder and CEO of a network marketing company operating under the name

bHIP.

31. For a number of months thereafter, LaCore, on behalf of bHIP, was engaged in

discussions with ForeverGreen and Axcess Global about the possibility of launching a liquid

ketogenic supplement based on the USF and Vlahakos technology through bHIP concurrent with

the ForeverGreen launch.

Underwood and Pruvit

32. In about October of 2014, LaCore introduced Axcess Global to Underwood and

Harding. LaCore, Underwood, and Harding then engaged in discussions with Axcess Global to

sub-license the USF technology from Axcess Global and introduce a product based on the USF

technology through a new network marketing company that LaCore, Underwood, and Harding

would own and operate. In connection with those discussions, Underwood signed a non-

disclosure agreement with Axcess Global.

33. In November of 2014, Axcess Global formed Axcess Global Sciences, LLC

(“AGS”), an entity wholly owned by Axcess Global. Axcess Global’s rights in the USF License

and the Vlahakos License were then assigned to Axcess Global Sciences, LLC (“AGS”).

34. On November 7, 2014, AGS signed a non-binding Term Sheet (the “Pruvit Term

Sheet”) with “NEWCO Inc.” (later Pruvit) that expressed the parties’ non-binding intentions of

terms pursuant to which AGS would license patent rights and know how to Pruvit. The Pruvit

Term Sheet included a binding confidentiality provision protecting AGS’s confidential

information.

35. On December 31, 2014, Axcess Global and Pruvit signed a “Non-exclusive

Sublicense Agreement” (the “Pruvit Sublicense”) which included provisions for the sub-


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licensing of the USF patent to Pruvit. The title of the Pruvit Sublicense, the heading on the

license grant clause, and the language in the license grant all specified that the Pruvit Sublicense

was “non-exclusive.”

36. The Pruvit Sublicense, to become effective and binding, required the approval of

USF and included a signature line for USF to express that approval. Also, virtually all of the

rough drafts of the Pruvit Sublicense included a statement at the top of the first page to this

effect. USF never executed the Pruvit Sublicense.

37. Upon information and belief, Pruvit never contacted USF to obtain approval for

the Pruvit Sublicense, nor did USF ever notify Pruvit that USF had approved the Pruvit

Sublicense.

38. In subsequent discussions between AGS and Pruvit, AGS learned that Pruvit was

planning a product launch, apparently in reliance on rights purportedly obtained in the Pruvit

Sublicense.

39. When AGS put Pruvit on notice that it still needed to obtain the approval of USF,

Pruvit responded: “Nothing in the [sublicense] agreement makes approval of USF a requirement

for its effectiveness.” Pruvit further advised AGS that “PruvIt plans to move forward” and

threatened litigation against AGS. This was the first of many actions of Pruvit indicating its

willingness to proceed with its own plans, regardless of its lack of rights from AGS.

40. AGS pointed Pruvit to the express language in the Pruvit License requiring USF’s

approval and suggested that Pruvit work with ForeverGreen to work out a plan for operating

under ForeverGreen to launch a ketone product using AGS’s technology.

41. Immediately thereafter, in mid-March, 2014, Pruvit discontinued communications

with AGS.


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42. AGS subsequently learned from third parties that Pruvit was continuing to act as

though the Pruvit Sublicense was an enforceable contract. Thus, AGS, while preserving its right

to challenge the enforceability of the Pruvit Sublicense, put Pruvit on notice that it was breaching

the Pruvit Sublicense for failure to maintain appropriate insurance coverage.

43. Specifically, in May of 2015, AGS gave Pruvit written notice of breach of section

12.2 of the Pruvit Sublicense, which states in part:

Licensee warrants that it now maintains and will continue to maintain

liability insurance coverage [of no] less than $3 million in the aggregate,

$1 million per occurrence, and that such insurance coverage lists Licensor

and its affiliates, USF, its Affiliates, its Trustees, the Florida Board of

Governors, and the inventors of the Licensed Patents as additional

insureds.

44. Under the terms of section 9.3 of the Pruvit Sublicense, AGS can terminate the

Pruvit Sublicense if Pruvit is in breach of any provision, with termination to take place thirty

(30) days after written notice from AGS, unless Pruvit remedies the problem in that 30-day

period.

45. In response to AGS’s assertions that Pruvit was not in compliance with the

insurance provisions of the Pruvit Sublicense, Pruvit stated that “Insurance is not necessary until

such time as PruvIt is conducting business.” Pruvit’s statement directly contradicted the express

requirement Pruvit had agreed to in the Pruvit Sublicense.

46. On June 30, 2015, well beyond the 30-day cure period provided in section 9.3 of

the Pruvit Sublicense, Pruvit provided AGS a copy of a Certificate of Liability Insurance. The

Pruvit Certificate of Liability Insurance was dated June 30, 2015, provided for aggregate

coverage of only $2 million and did not list as “additional insureds” any of entities required by

section 12.2 of the Pruvit Sublicense with the exception of AGS.


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47. The Pruvit Sublicense expired by its terms 30 days after AGS’s written notice of

breach and Pruvit’s failure to cure. Notwithstanding the automatic termination, AGS provided

Pruvit with a formal notice of termination of the Pruvit Sublicense by letter dated July 22, 2015.

The ForeverGreen Sublicense

48. On July 7, 2015, AGS and ForeverGreen executed a “Sublicense Agreement re

USF Technology” (the “FG/USF Sublicense”) granting ForeverGreen an exclusive sublicense to

the USF Patent in the multi-level marketing channel. Because Pruvit had asserted that it had

rights to the USF Patent in the multi-level marketing channel (notwithstanding the fact that USF

had never approved its license and Pruvit’s own failure to remedy its numerous breaches of the

insurance provisions of the Pruvit License), the parties to the FG/USF Sublicense made the

exclusive license grant “subject to” any rights that Pruvit “may have as a non-exclusive

licensee.”

49. On that same day, July 7, 2015, AGS and ForeverGreen also executed an

“Exclusive Sublicense Agreement re Vlahakos Technology” (the “FG/Vlahakos Sublicense”)

granting ForeverGreen an exclusive sublicense to the Vlahakos Patent in the multi-level

marketing channel.

50. Notwithstanding that the Pruvit Sublicense was never rendered effective and

binding and/or was terminated due to Pruvit’s failure to cure its numerous breaches, in early June

of 2015 Pruvit began marketing and offering for sale a product under the names “KETO//OS”

and “KETO//COS” (hereafter the “Pruvit Infringing Products”).

51. Upon information and belief, the Pruvit Infringing Products are manufactured in

this district by LaCore Labs under the direct supervision of LaCore.


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COUNT ONE

(Infringement of U.S. Patent No. 9,138,420 against Pruvit and LaCore Labs)

52. The foregoing paragraphs of this counterclaim and third-party complaint are

incorporated as if recited herein.

53. This cause of action arises under the patent laws of the United States, and in

particular, 35 U.S.C. §§ 271, et seq.

54. The USF Patent (U.S. Patent No. 9,138,420) is valid, enforceable, and was duly

issued by the United States Patent and Trademark Office in full compliance with Title 35, United

States Code.

55. Upon information and belief, Pruvit is directly infringing at least claim 1 of the

USF Patent in this district and elsewhere in the United States by, among other things, making,

using, selling, and/or offering to sell the Pruvit Infringing Products. Therefore, Pruvit is liable

for infringement of the USF Patent pursuant to 35 U.S.C. § 271.

56. Upon information and belief, LaCore Labs is directly infringing at least claim 1 of

the USF Patent in this district and elsewhere in the United States by, among other things,

making, using, selling, and/or offering to sell the Pruvit Infringing Products to Pruvit. Therefore,

LaCore Labs is liable for infringement of the USF Patent pursuant to 35 U.S.C. § 271.

57. Pruvit’s and LaCore Labs’ acts of infringement have caused damage to AGS, and

AGS is entitled to recover from Pruvit and LaCore Labs the damages sustained by AGS as a

result of Pruvit’s wrongful and illegal acts in an amount subject to proof at trial.

58. Upon information and belief, the infringing acts complained of herein against

Pruvit and LaCore Labs continue.

59. As a consequence of the infringement complained of herein, AGS has been

irreparably damaged to an extent not yet determined, and will continue to be irreparably


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damaged by such acts in the future unless Pruvit and LaCore Labs are enjoined by this Court

from committing further acts of infringement of the USF Patent.

COUNT TWO

(Induced Infringement of U.S. Patent No. 9,138,420 against LaCore, Underwood, and Harding)





62. The USF Patent (U.S. Patent No. 9,138,420) is valid, enforceable, and was duly

issued by the United States Patent and Trademark Office in full compliance with Title 35, United

States Code.

63. Upon information and belief, LaCore, Underwood, and Harding at all relevant

times had knowledge of the USF Patent.

64. Upon information and belief, LaCore, Underwood, and Harding have induced

infringement of at least claim 1 of the USF Patent in this district and elsewhere in the United

States by, among other things, each personally directing Pruvit to make, use, sell, and offer to

sell the Pruvit Infringing Products. Therefore, LaCore, Underwood, and Harding are each

personally liable for infringement of the USF Patent pursuant to 35 U.S.C. § 271.


infringement of at least claim 1 of the USF Patent in this district and elsewhere in the United

States by, among other things, each personally directing LaCore Labs to make, use, sell, and

offer to sell the Pruvit Infringing Products to Pruvit. Therefore, LaCore, Underwood, and


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Harding are each personally liable for infringement of the USF Patent pursuant to 35 U.S.C. §

271.

66. Upon information and belief, LaCore, Underwood, and Harding knew, at all

relevant times, that their inducement of Pruvit and/or LaCore Labs to make, use, offer to sell, and sell

the Infringing Pruvit Products constituted direct patent infringement of the USF Patent.

67. LaCore’s, Underwood’s, and Harding’s acts of infringement have caused damage

to AGS, and AGS is entitled to recover from LaCore, Underwood, and Harding the damages

sustained by AGS as a result of their wrongful and illegal acts in an amount subject to proof at

trial.


LaCore, Underwood, and Harding continue.



damaged by such acts in the future unless LaCore, Underwood, and Harding are enjoined by this

Court from committing further acts of infringement of the USF Patent.

COUNT THREE

(Induced Infringement of U.S. Patent No. 6,613,356 against Pruvit and LaCore Labs)






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72. The Vlahakos Patent (U.S. Patent No. 6,613,356) is valid, enforceable, and was

duly issued by the United States Patent and Trademark Office in full compliance with Title 35,

United States Code.

73. Upon information and belief, Pruvit and LaCore Labs at all relevant times had

knowledge of the Vlahakos Patent.

74. Upon information and belief, Pruvit and LaCore Labs are inducing the

infringement of at least claim 1 of the Vlahakos Patent in this district and elsewhere in the

United States by, among other things, marketing and selling the Pruvit Infringing Products with

instructions that they be consumed orally for causing weight loss or the avoidance of weight

gain. Therefore, Pruvit and LaCore Labs are liable for induced infringement of the Vlahakos

Patent pursuant to 35 U.S.C. § 271.

75. Upon information and belief, consumers of the Pruvit Infringing Product have

directly infringed at least claim 1 of the Vlahakos patent by performing the process(es) recited

therein.

76. Upon information and belief, Pruvit and LaCore Labs knew at all relevant times

that their inducement of consumers of the Pruvit Infringing Products to practice the methods claimed

in the Vlahakos patent would constitute direct patent infringement of the Vlahakos Patent.

77. Pruvit’s and LaCore Labs’ acts of infringement have caused damage to AGS, and

AGS is entitled to recover from Pruvit and LaCore Labs the damages sustained by AGS as a

result of Pruvit’s and LaCore Labs’ wrongful and illegal acts in an amount subject to proof at

trial.


Pruvit and LaCore Labs continue.


28



damaged by such acts in the future unless Pruvit and LaCore Labs are enjoined by this Court

from committing further acts of infringement of the Vlahakos Patent.

COUNT FOUR

(Induced Infringement of U.S. Patent No. 6,613,356 against LaCore, Underwood, and Harding)





82. The Vlahakos Patent (U.S. Patent No. 6,613,356) is valid, enforceable, and was

duly issued by the United States Patent and Trademark Office in full compliance with Title 35,

United States Code.

83. Upon information and belief, LaCore, Underwood, and Harding at all relevant

times had knowledge of the Vlahakos Patent.


infringement of at least claim 1 of the Vlahakos Patent in this district and elsewhere in the

United States by, among other things, each personally directing Pruvit and/or LaCore Labs to

market and sell the Pruvit Infringing Products in retail marketing channels with instructions that

they be consumed orally for causing weight loss or the avoidance of weight. Therefore, LaCore,

Underwood, and Harding are each personally liable for inducing the infringement of the

Vlahakos Patent pursuant to 35 U.S.C. § 271.


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85. Upon information and belief, LaCore, Underwood, and Harding knew, at all

relevant times, that their inducement of Pruvit and/or LaCore Labs to market and sell the Pruvit

Infringing Products with instructions that they be consumed orally in accordance with the processes

claimed in the Vlahakos Patent constituted direct patent infringement of the Vlahakos Patent.

86. LaCore’s, Underwood’s, and Harding’s acts of infringement have caused damage

to AGS, and AGS is entitled to recover from LaCore, Underwood, and Harding the damages

sustained by AGS as a result of their wrongful and illegal acts in an amount subject to proof at

trial.


LaCore, Underwood, and Harding continue.



damaged by such acts in the future unless LaCore, Underwood, and Harding are enjoined by this

Court from committing further acts of infringement of the Vlahakos Patent.

COUNT FIVE

(Trade Secret Misappropriation – Texas Uniform Trade Secrets Act

against Pruvit, LaCore Labs, LaCore, Underwood, and Harding)



90. AGS possesses valuable and protectable trade secrets as defined in the Texas

Uniform Trade Secret Act, TEX. CIV. PRAC. & REM. CODE § 134A.002(6) (the “Act”).

91. AGS’s trade secrets include, but are not limited to, formulations of products

relating to the technology disclosed and claimed in the USF and Vlahakos Patents.


30

92. AGS has taken reasonable efforts under the circumstances to protect its trade

secrets, including requiring all third-parties to whom it discloses its trade secrets to sign contracts

having confidentiality clauses.

93. AGS’s trade secrets derive independent economic value from not being generally

known to, and not being readily ascertainable through proper means by, other persons who can

obtain economic value from their disclosure or use.

94. Upon information and belief, Pruvit, LaCore Labs, LaCore, Underwood, and

Harding have misappropriated, and threaten to further misappropriate, AGS’s trade secrets by

using AGS’s trade secrets in the manufacture of the Pruvit infringing Products and by disclosing

AGS’s trade secrets to others without license or permission from AGS.

95. AGS has suffered damages, and Pruvit, LaCore Labs, LaCore, Underwood, and

Harding have been unjustly enriched in an amount to be proven at trial, as a direct result of their

trade secret misappropriation.

96. Pruvit, LaCore Labs, LaCore, Underwood, and Harding’s misappropriation has

caused and continues to cause AGS irreparable injury and cannot be fully redressed through

damages alone. An injunction prohibiting Pruvit, LaCore Labs, LaCore, Underwood, and

Harding from further use or disclosure of AGS’s trade secrets is necessary to provide AGS with

adequate relief.

97. Pruvit, LaCore Labs, LaCore, Underwood, and Harding’s misappropriation has

been wilful and malicious, which entitles AGS to an award of exemplary damages and

reasonable attorney’s fees pursuant to sections 134A.004(b) and 134A.005(e) of the Act.


31

COUNT SIX

(Breach of Contract against Pruvit)



99. In the Pruvit Term Sheet, Pruvit covenanted that it would not disclose information

provided to it by AGS either privately or publicly.

100. AGS performed its obligations under the Pruvit Term Sheet.

101. The Pruvit Term Sheet constitutes a valid and enforceable contract.

102. On information and belief, Pruvit has disclosed information provided to it by

AGS to personnel at LaCore Labs and to others in violation of its contractual obligations under

the Pruvit Term Sheet.

103. As a result of Pruvit’s breach of the Pruvit Term Sheet, AGS has been damaged in

an amount to be established at trial.

104. As a consequence of the breach of contract complained of herein, AGS has been


damaged by such acts in the future unless Pruvit is enjoined by this Court from committing

further acts of breach.

COUNT SEVEN

(Breach of Contract against Underwood)



106. Underwood and Axcess Global entered into a Mutual Confidentiality and Non-

disclosure Agreement on or about October 23, 2014 (the “Underwood NDA”).


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107. The Underwood NDA required Underwood to hold confidential information of

Axcess Global in the strictest confidence and not directly or indirectly disclose any such

confidential information to any person or entity, except as otherwise provided in the agreement.

108. Axcess Global performed its obligations under the Underwood NDA.

109. The Underwood NDA constitutes a valid and enforceable contract.

110. On information and belief, Underwood has disclosed information provided to him

by AGS to personnel at LaCore Labs and to others in violation of his contractual obligations

under the Underwood NDA.

111. As a result of Underwood’s breach of the Underwood NDA, AGS has been

damaged in an amount to be established at trial.

112. As a consequence of the breach of contract complained of herein, AGS has been


damaged by such acts in the future unless Underwood is enjoined by this Court from committing

further acts of breach.

COUNT EIGHT

(Breach of Supply Agreement against SavInd and KetoTech)



114. SavInd entered into the Supply Agreement with Axcess Global on or about

December 26, 2013.

115. In the Supply Agreement, SavInd agreed that when powder BHB salts became

available, SavInd would “not sell the Powder Salts to any network marketing company except as

agreed to by Axcess Global.”


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116. Upon information and belief, KetoTech was created with the express purpose of

avoiding SavInd’s obligations under the Supply Agreement.

117. Upon information and belief, (a) the creation of KetoTech amounts to a

consolidation or merger of SavInd and KetoTech; (b) KetoTech is merely a continuation of the

SavInd; and/or (c) the creation of KetoTech was completed fraudulently in order to escape

SavInd’s obligations under the Supply Agreement.

118. Axcess Global performed all of its obligations under the Supply Agreement.

119. The Supply Agreement constitutes a valid and enforceable contract.

120. Upon information and belief, SavInd and/or KetoTech are selling powder BHB

salts to Pruvit and/or LaCore Labs in violation of their obligations under the Supply Agreement.

121. As a result of SavInd and/or KetoTech’s breach of the Supply Agreement, Axcess

Global has been damaged in an amount to be established at trial.

122. As a consequence of the breach of contract complained of herein, Axcess Global

has been irreparably damaged to an extent not yet determined, and will continue to be irreparably

damaged by such acts in the future unless SavInd and/or KetoTech are enjoined by this Court

from committing further acts of breach.

COUNT NINE

(Civil Conspiracy against Pruvit, LaCore Labs, LaCore, Underwood, and Harding)


incorporated as if recited herein

124. Upon information and belief, Pruvit, LaCore Labs, LaCore, Underwood, and

Harding at all relevant times had knowledge of the Supply Agreement.


34

125. Upon information and belief, Pruvit, LaCore Labs, LaCore, Underwood, Harding,

SavInd, and/or KetoTech planned to breach the obligation in the Supply Agreement to not sell

powder BHB salts to any network marketing company except as agreed to by Axcess Global.

126. Upon information and belief, the co-conspirators Pruvit, LaCore Labs, LaCore,

Underwood, Harding, SavInd, and/or KetoTech intended to breach the obligation in the Supply

Agreement to not sell powder BHB salts to any network marketing company except as agreed to

by Axcess Global.

127. As a result of Pruvit, LaCore Labs, LaCore, Underwood, and Harding’s

conspiratorial acts of aiding and abetting SavInd and/or KetoTech’s breach of the Supply

Agreement, Axcess Global has been damaged in an amount to be established at trial.

128. As a consequence of the conspiracy complained of herein, Axcess Global has

been irreparably damaged to an extent not yet determined, and will continue to be irreparably

damaged by such acts in the future unless Pruvit, LaCore Labs, LaCore, Underwood, Harding,

SavInd, and/or KetoTech are enjoined by this Court from committing further acts of conspiracy.

COUNT TEN

(Violation of the Lanham Act – False Advertising against Pruvit)



130. In commercial advertising or promotion, Pruvit has misrepresented the nature,

characteristics, qualities, or geographic origin of its goods in violation of the Lanham Act.

131. Such misrepresentations include, but are not limited to: (a) that Pruvit was the

first company approved by University of South Florida to acquire the sublicense rights to use this

patent pending technology; (b) that Pruvit’s KETO//OS product is a worldwide exclusive


35

proprietary formula; (c) that Pruvit’s product is endorsed by the University of South Florida; and

(d) that Pruvit owns the worldwide rights to KETO//OS.

132. Pruvit’s acts constitute false advertising in violation of Section 43(a) of the

Lanham Act, 15 U.S.C. §1125(a).

133. Pruvit’s acts of false advertisement have caused and continue to directly and

proximately cause AGS to suffer damages in an amount to be determined at trial.

134. Pursuant to 15 U.S.C. §1117 and other applicable law, AGS is entitled to recover

damages from Pruvit resulting from its false misrepresentations of fact, in an amount to be

determined at trial.

135. As a consequence of the false advertising complained of herein, AGS has been


damaged by such acts in the future unless Pruvit is enjoined by this Court from committing

further acts of false advertising.

COUNT ELEVEN

(Declaratory Judgment that the Pruvit Sublicense was Never Effective)



137. The Pruvit Sublicense, by its express terms, stated: “this document shall become

effective and binding only upon the execution by duly authorized representatives of both

Licensee and Licensor and approved by USF.”

138. The Pruvit Sublicense included a signature line for USF to sign to indicate its

authorization.

139. USF never executed the Pruvit Sublicense.


36

140. Upon information and belief, USF never approved the Pruvit Sublicense.

141. Accordingly, AGS seeks a declaration from this Court that the Pruvit Sublicense

never became effective because it was never approved by USF.

COUNT TWELVE

(Declaratory Judgment – the Pruvit Sublicense has been Terminated)



143. Section 12.2 of the Pruvit Sublicense states as follows: “Licensee warrants that it

now maintains and will continue to maintain liability insurance coverage [of no] less than $3

million in the aggregate, $1 million per occurrence, and that such insurance coverage lists

Licensor and its affiliates, USF, its Affiliates, its Trustees, the Florida Board of Governors, and

the inventors of the Licensed Patents as additional insureds.”

144. By letter dated May 14, 2015, AGS gave Pruvit notice of breach of the above-

cited section 12.2 of the Pruvit Sublicense.

145. Section 9.3 of the Pruvit Sublicense provides: “Licensor may terminate this

Agreement if (a) Licensee…is in breach of any provision.… Termination under this Section 9.3

will take effect thirty (30) days after written notice by Licensor, unless Licensee remedies the

problem in that 30-day period.”

146. Pruvit never cured its breach of section 12.2 of the Pruvit Sublicense in that,

within the 30-day cure period, it (a) did not obtain liability insurance coverage; (b) it did not

obtain liability insurance coverage of at least $3 million in the aggregate; and (c) it did not obtain

liability insurance coverage listing Licensor and its affiliates, USF, its Affiliates, its Trustees, the

Florida Board of Governors, and the inventors of the Licensed Patents as additional insureds.


37

147. Because Pruvit failed to cure its multiple breaches of section 12.2 of the Pruvit

Sublicense within 30 days following written notice of the breach, the Pruvit Sublicense

automatically terminated without further action of this Court or AGS on or about June 15, 2015.

148. In the event it is determined that the Pruvit Sublicense is an effective contract,

AGS seeks a declaration from the Court that the Pruvit Sublicense was terminated 30 days after

AGS served notice on Pruvit of Pruvit’s breach of section 12.2 of the Pruvit Sublicense.

PRAYER FOR RELIEF

Wherefore, Axcess Global and AGS pray for the following relief:

A. Judgment that Pruvit, LaCore Labs, LaCore, Underwood, and Harding have each

infringed the USF patent;

B. Judgment in favor of AGS and against Pruvit, LaCore Labs, LaCore, Underwood,

and Harding, jointly and severally, for AGS’s damages attributable to Pruvit, LaCore Labs,

LaCore, Underwood, and Harding’s infringement of the USF Patent;

C. Judgment that Pruvit, LaCore Labs, LaCore, Underwood, and Harding have each

willfully infringed the USF patent;

D. Judgment against Pruvit, LaCore Labs, LaCore, Underwood, and Harding

enhancing the damage award against Pruvit, LaCore Labs, LaCore, Underwood, and Harding by

three times in light of their willful infringement of the USF patent, all in accordance with 35

U.S.C. § 284;

E. That AGS be granted preliminary and permanent injunctive relief pursuant to 35

U.S.C. § 283 enjoining Pruvit, LaCore Labs, LaCore, Underwood, and Harding, their officers,

agents, servants, employees, and all those persons in active concert or participation with them

from further acts of infringement of the USF patent;


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F. Judgment that Pruvit, LaCore Labs, LaCore, Underwood, and Harding have each

infringed the Vlahakos patent;

G. Judgment in favor of AGS and against Pruvit, LaCore Labs, LaCore, Underwood,

and Harding, jointly and severally, for AGS’s damages attributable to Pruvit, LaCore Labs,

LaCore, Underwood, and Harding’s infringement of the Vlahakos Patent;

H. Judgment that Pruvit, LaCore Labs, LaCore, Underwood, and Harding have each

willfully infringed the Vlahakos patent;

I. Judgment against Pruvit, LaCore Labs, LaCore, Underwood, and Harding

enhancing the damage award against Pruvit, LaCore Labs, LaCore, Underwood, and Harding by

three times in light of their willful infringement of the Vlahakos patent, all in accordance with 35

U.S.C. § 284;

J. That AGS be granted preliminary and permanent injunctive relief pursuant to 35

U.S.C. § 283 enjoining Pruvit, LaCore Labs, LaCore, Underwood, and Harding, their officers,

agents, servants, employees, and all those persons in active concert or participation with them

from further acts of infringement of the Vlahakos patent;

K. That the Court declare this an exceptional case and that AGS be granted its

reasonable attorneys’ fees against Pruvit, LaCore Labs, LaCore, Underwood, and Harding in

accordance with 35 U.S.C. § 285;

L. Judgment in favor of AGS and against Pruvit, LaCore Labs, LaCore, Underwood,

and Harding, jointly and severally, granting AGS pre-judgment and post-judgment interest all

damages caused to it by reason of Pruvit, LaCore Labs, LaCore, Underwood, and Harding’s

patent infringement;


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M. That AGS be granted preliminary and permanent injunctive relief pursuant to

TEX. CIV. PRAC. & REM. CODE § 134A.003 enjoining Pruvit, LaCore Labs, LaCore, Underwood,

and Harding, their officers, agents, servants, employees, and all those persons in active concert

or participation with them from further acts of misappropriation of AGS’s trade secrets.

N. Judgment in favor of AGS and against Pruvit, LaCore Labs, LaCore, Underwood,

and Harding, jointly and severally, for AGS’s damages attributable Pruvit, LaCore Labs, LaCore,

Underwood, and Harding’s misappropriation of AGS’s trade secrets, including AGS’s actual loss

caused by misappropriation and the unjust enrichment caused by misappropriation that is not

taken into account in computing actual loss, but in no event less than a reasonable royalty for the

unauthorized use and/or disclosure of AGS’s trade secrets.

O. Judgment against Pruvit, LaCore Labs, LaCore, Underwood, and Harding

enhancing the damage award for their misappropriation of AGS’s trade secrets to award

exemplary damages to AGS in an amount not exceeding twice any award of actual damages,

pursuant to TEX. CIV. PRAC. & REM. CODE § 134A.004(b).

P. That Pruvit, LaCore Labs, LaCore, Underwood, and Harding be

Q. Judgment in favor of AGS and against Pruvit for all damages incurred by AGS

due to Pruvit’s breach of contract;

R. That AGS be granted preliminary and permanent injunctive relief enjoining

Pruvit, its officers, agents, servants, employees, and all those persons in active concert or

participation with it from further acts of breach of contract;

S. Judgment in favor of AGS and against Underwood for all damages incurred by

AGS due to Underwood’s breach of contract;


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T. That AGS be granted preliminary and permanent injunctive relief enjoining

Underwood, his agents, servants, employees, and all those persons in active concert or

participation with him from further acts of breach of contract;

U. Judgment in favor of Axcess Global and against SavInd and KetoTech for all

damages incurred by Axcess Global due to SavInd and KetoTech’s breach of contract;

V. That Axcess Global be granted preliminary and permanent injunctive relief

enjoining SavInd and KetoTech, their officers, agents, servants, employees, and all those persons

in active concert or participation with it from further acts of breach of contract;

W. Judgment in favor of AGS and against Pruvit, LaCore Labs, LaCore, Underwood,

and Harding, jointly and severally, granting AGS its damages for Pruvit, LaCore Labs, LaCore,

Underwood, and Harding’s civil conspiracy;

X. Judgment in favor of AGS and against Pruvit, LaCore Labs, LaCore, Underwood,

and Harding for punitive damages for their civil conspiracy sufficient to deter further illegal

conduct of like nature, but in no less than $1,000,000 each;

Y. Judgment that Pruvit has committed false advertising under the Lanham Act;

Z. Judgment in favor of AGS and against Pruvit for all of Pruvit’s profits;

AA. Judgment in favor of AGS and against Pruvit for AGS’s damages;

BB. That AGS be granted preliminary and permanent injunctive relief pursuant to 15

U.s.C. § 1125(c) enjoining Pruvit, its officers, agents, servants, employees and those persons in

active concert or participation with it from further acts of false advertisement, … pursuant to

Section 34 of the Lanham Act, 15 U.S.C. § 1116;

CC. Judgment in favor of AGS and against Pruvit granting AGS pre-judgment and

post-judgment interest on damages caused to it by reason of Pruvit’s Lanham Act violation;


41

DD. That the Court declare this an exceptional case and that AGS be granted its

reasonable attorneys’ fees against against Pruvit in accordance with 15 U.S.C. § 1117;

EE. A declaration by the Court that the Pruvit Sub-license Agreement never became

an effective and enforceable contract;

FF. A declaration by the Court that the Pruvit Sub-license Agreement, if an effective

contract, was terminated as of June 15, 2015;

GG. Judgment in favor of Axcess Global and AGS and against Defendants granting

Axcess Global and AGS their pre-judgment and post-judgment interest on all damages caused

them it by reason of Defendant’s illegal acts;

HH. An award of costs to AGS; and

II. Such other and further relief that this Court deems appropriate under the

circumstances.

Jury Demand

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Axcess Global and AGS

hereby demand trial by jury in this action on all issues so triable.

DATED: October 26, 2015

By: /s/ Charles L. Roberts

Charles L. Roberts (pro hac vice admission)

WASATCH-IP, A PROFESSIONAL CORP.

2825 E. Cottonwood Parkway, Suite 500

Salt Lake City, Utah 84121

[email protected]

Phone: 801-292-5300

Facsimile: 801-506-6699

Attorney for defendant and counterclaimant

Axcess Global Sciences, LLC and third-party

plaintiff Axcess Global, LLC


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CERTIFICATE OF SERVICE

I hereby certify that on October 26, 2015, I caused a true and correct copy of the foregoing

document to be filed with the Clerk of Court and served on all counsel of record via CM/ECF

pursuant to Local Rule CV-5(a).

/s/ Charles L. Roberts


united states district court eastern district of texas...

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