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Industria DE Alimentos Zenu S.A.S. v. Latinfood U.S. Corp.

United States District Court, D. New Jersey

March 9, 2018

INDUSTRIA DE ALIMENTOS ZENU S.A.S., Plaintiff,
v.
LATINFOOD U.S. CORP. d/b/a ZENU PRODUCTS CO., and WILSON ZULUAGA, Defendants.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE.

         Plaintiff Industria de Alimentos Zenu, S.A.S ("Industrial brought a sixteen-count action against the defendants, Latinfood U.S. Corp doing business as Zenu Products Co. ("Latinfood"), and Wilson Zuluaga. Latinfood has asserted a counterclaim for tortious interference with prospective economic advantage against Industria and Cordialsa, Inc. ("Cordialsa").

         Industria and Cordialsa now move under Federal Rule of Civil Procedure 12(b)(6) to dismiss the most recent amended version of Latinfood's Counterclaim for failure to state a claim. For the reasons set forth below, that motion is denied.

         I. Background[1]

         I previously considered this case in the context of Latinfood and Mr. Zuluaga's motion to dismiss Counts 1-4 and 11-16 of the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. See Industria de Alimentos Zenu S.A.S. v. Latinfood U.S. Corp., No. CV 16-6576 (KM)(MAH), 2017 WL 6940696 (D.N.J. Dec. 29, 2017). Familiarity with that opinion, which relates the background of the litigation and the allegations of the complaint, is assumed.

         Latinfood Filed an answer generally denying those allegations and asserting a counterclaim for tortious interference with prospective economic advantage against Industria and Cordialsa. (Answer, Counterclaims UK 24-27). The current amended version of the counterclaim (cited as "Counterclaim", ECF no. 89 at 19-25) alleges as follows.

         Industria is a corporation organized under the laws of Colombia and is a wholly-owned subsidiary of Grupo Nutresa S.A.[2] (Counterclaim HU 3, 12). Cordialsa is a corporation organized under the laws of Texas, and is also a wholly-owned subsidiary of Grupo Nutresa S.A. (Id. UK 4, 12). Cordialsa, which began its operations in 2004, is the "marketing arm and distribution company for Grupo Nutresa S.A." (Id. t 12)

         According to Latinfood, Cordialsa "uses different channels of distribution ... to commercialize its products in the U.S., " including "supermarkets, convenience stores, club stores, mass merchandisers and dollar stores." (Id. K 13). Cordialsa has warehouses in Houston, Texas; Laredo, Texas; and Los Angeles, California. (Id.) Latinfood alleges upon information and belief that Cordialsa sells its products in California, Nevada, Arizona, Texas, Florida, New York, New Jersey, Illinois, and Georgia. (Id. at ¶ 14).

         On or around July 15, 2015, Mr. Zuluaga, on behalf of Latinfood, paid a regular visit to its customer Food Fair Supermarket in Paterson, New Jersey. [Id. 118). During that visit the store manager requested that Mr. Zuluaga remove all of Latinfood's Zenu-branded products from the store. (Id.) The manager informed Mr. Zuluaga that the area manager of Cordialsa, Alejandro Yepes, had told him that Latinfood's Zenu-branded products were "Take." (Id.) The manager also stated that Yepes "intimidated" him "into removing the products from the store entirely." (Id.)

         On that same date, Mr. Zuluaga allegedly spoke to Mr. Yepes in the parking lot of the supermarket. (Id. at ¶ 19). Yepes acknowledged that he had told the Food Fair Supermarket manager the Latinfood products were "'fake, ™ and also "that he had requested [the products] be removed from the store shelves." (Id.) Yepes also stated that "he had been given direct orders from his manager, Luis Arango" not only to "identify points of sale of any Zenu-branded products, " but also to tell those points of sale "that the products were 'fake." (Id.) Yepes stated that Arango had told him that the products "had to be removed immediately from the sales floor." (Id.)

         Later that day, Latinfood sent a cease-and-desist letter to Arango and Cordialsa. The letter described the incident at Food Fair Supermarket, and demanded that "such malicious actions" stop and such "willfully false statements" cease. (Id. 1 20; a copy of the letter is at ECF no. 69-2.) Latinfood asserts that despite the letter, it "continued to receive several comments from various Latinfood customers that Industria and/or Cordialsa" had contacted them and informed them that Latinfood's Zenu-branded products were "'fake' and that the customers should immediately stop carrying the products." (Id. H 21). Latinfood alleges that "Industrial and/or Cordialsa's false and malicious comments" caused Latinfood's sales and volumes to decrease or even cease completely. (Id. U 22). The counterclaim alleges that Industria and Cordialsa "seek to interfere with Latinfood's current and prospective customer relationships, and thereby deprive Latinfood of its economic advantage to which it is entitled." (Id. If 23).

         II. Procedural History

         On October 5, 2016, Industria filed its initial Complaint against Latinfood, doing business as "Zenu Products Co.", and Mr. Zuluaga. (Cplt.) It asserted eight claims against Latinfood and Mr. Zuluaga for infringmenet of trademarks and unfair competition.

         On April 21, 2017, Industria filed an Amended Complaint asserting sixteen causes of action against Latinfood and Mr. Zuluaga.[3] (AC) Although the initial Complaint centered on the Zenu mark, the Amended Complaint added claims with respect to the Ranchera mark. Counts 1-4 and 11 arise under the Lanham Act. Counts 5-10 allege copyright infringement of specific copyrights owned by Industria. (Id. Iffl 126-67). Counts 12-14 allege violations of the IAC. (Id. U 176-98) Counts 15 and 16 allege unfair competition in violation of the New Jersey Fair Trade Act, N.J. Stat. Ann. 56:4-1 et seq. (Id. H 199-216).

         On May 19, 2017, Latinfood and Mr. Zuluaga filed a Partial Answer to Industrial Amended Complaint (ECF no. 36), as well as a motion to dismiss Counts 1-4 and 11-16. (ECF no. 37) I denied that motion to dismiss by Order and Opinion filed December 29, 2017. (ECF nos. 81, 82)

         On June 30, 2017, pursuant to stipulation, Latinfood and Zuluaga filed their Amended Partial Answer, with a Counterclaim asserted by Latinfood against Industria and Cordialsa. [4] ((ECF no. 44 at 22-25)[5]

         On September 8, 2017, Latinfood and Mr. Zuluaga filed their Second Amended Partial Answer with Counterclaim. (ECF nos. 60, 62). The counterclaim of tortious interference with prospective economic advantage was asserteds by Latinfood against Industria and Cordialsa. (Id.)

         On September 29, 2017, Industria and Cordialsa filed a renewed motion to dismiss the version of Latinfood's counterclaim contained in the Second Amended Partial Answer. (ECF no. 69). As Exhibit A to the motion, they attached a copy of the cease-and-desist letter sent from Mr. Zuluaga, on behalf of Latinfood, to Luis Arango. (ECF no. 69-2, Exh. A). Exhibit ...


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