Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perfetti Van Melle USA, Inc. v. Midwest Processing, LLC

United States District Court, D. South Dakota, Southern Division

June 4, 2015

PERFETTI VAN MELLE USA, INC., AND PERFETTI VAN MELLE BENELUX B.V., Plaintiffs,
v.
MIDWEST PROCESSING, LLC, AND DEXTER JORGENSEN, Defendants

          For Perfetti Van Melle USA Inc., Perfetti Van Melle Benelux B.V., Plaintiffs: Aaron M. Bernay, LEAD ATTORNEY, PRO HAC VICE, Frost Brown Todd, LLC, Cincinnati, OH; Michael L. Luce, LEAD ATTORNEY, Lynn, Jackson, Shultz & Lebrun, P.C., Sioux Falls, SD.

Page 1016

          OPINION AND ORDER GRANTING

         ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         PRELIMINARY INJUNCTION

         Plaintiffs Perfetti Van Melle USA, Inc. and Perfetti Van Melle Benelux B.V. (collectively, " Perfetti" ) arranged through a third party for Defendants Midwest Processing, LLC (" Midwest" ) and Dexter Jorgensen (" Jorgensen" ) to recycle candy that Perfetti had manufactured but deemed unsalable. Perfetti moved for a temporary restraining order, preliminary injunction, and a permanent injunction against Defendants after learning that Defendants had diverted the candy to retail stores for sale rather than recycling it. For the reasons explained below, this Court grants Perfetti's motion for a preliminary injunction.

         I. Facts

         This Court draws the facts from the Verified Complaint, the affidavits and

Page 1017

sworn declarations filed by Perfetti, and the testimony and exhibits from the hearing on May 28, 2015. See Doe v. S. Iron R-1 Sch. Dist., 498 F.3d 878, 880 (8th Cir. 2007) (affirming a preliminary injunction based on a verified complaint and additional documents); Movie Sys., Inc. v. MAD Minneapolis Audio Distribs., 717 F.2d 427, 431-32 (8th Cir. 1983) (holding that courts may rely solely on affidavits in granting preliminary injunctions).

         Perfetti is a global manufacturer of candy and chewing gum whose brands include Airheads®, Airheads Xtremes®, and Mentos® . Doc. 1 at 1, 12. Perfetti introduced a new product in 2014 called " Airheads Xtremes® Bites" (" Xtremes® Bites" ). Doc. 1 at ¶ 20; Doc. 18-1 at 1; Doc. 18-2 at 1. Xtremes® Bites were initially imported from Italy, but Perfetti USA began manufacturing the candy in the United States in July 2014. Doc. 1 at ¶ 23; Doc. 18-1 at 1; Doc. 18-2 at 1.

         Between November 2014 and February 2015, Perfetti USA determined that certain Xtremes® Bites production runs did not meet specifications and would therefore be withheld as unsalable product. Doc. 1 at ¶ 25; Doc. 18-2 at 1-2. The sanding sugar on some of the product did not adhere correctly, causing the product to become harder than usual, and individual pieces showed signs of clumping together in the package. Doc. 1 at ¶ 25; Doc. 18-2 at 1-2. Other problems arose with packaging of the product, including sealing defects. Doc. 1 at ¶ 25; Doc. 18-2 at 1-2. Although posing no health or safety risk to consumers, the withheld product had defects in quality and/or packaging that are common when calibrating a new production line and that would make the product less appealing to consumers. Doc. 1 at ¶ 26; Doc. 18-2 at 2.

         Perfetti USA contacted an environmental services broker, Advanced Environmental, Inc. (" Advanced Environmental" ), to arrange for the recycling of the unsalable Xtremes® Bites. Doc. 1 at ¶ 28; Doc. 18-2 at 2. Perfetti USA specifically instructed Advanced Environmental that the candy was not to be sold out on the market. On Perfetti USA's behalf, Advanced Environmental engaged Midwest, a South Dakota company operated by Jorgensen, to haul away and recycle the unsalable Xtremes® Bites. Doc. 1 at ¶ ¶ 7, 8, 28; Doc. 18-2 at 2. Perfetti USA understood that Midwest had the capacity to separate the candy from its packaging, and then convert the candy into agricultural uses while recycling the plastic and cardboard. Doc. 1 at ¶ 28. Midwest and Jorgensen agreed with Advanced Environmental to recycle the unsalable Xtremes® Bites. Doc. 18-3 at 2. Advanced Environmental never told Jorgensen or Midwest that they could sell the candy. Doc. 18-3 at 3.

         Midwest hired Golden View Logistics, Inc. (" Golden View" ) to transport the unsalable Xtremes® Bites from Perfetti USA's facility in Kentucky. Doc. 18-2 at 2; Doc. 18-3 at 2. Between November 2014 and February 2015, Golden View picked up fifteen truckloads of unsalable Xtremes® Bites and candy slurry. Doc. 1 at ¶ 29; Doc. 18-2 at 3. It appears that only four of the truckloads ended up at Midwest's facility in South Dakota and that Midwest had Golden View transport the remaining eleven loads to various ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.