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Active Marketing Group, Inc. v. Eb Brands Holdings, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

August 30, 2017

ACTIVE MARKETING GROUP, INC. PLAINTIFF
v.
EB BRANDS HOLDINGS, INC., d/b/a EB Sport Group, EB Brands, E&B HK Limited, EB Giftware, Sports and Leisure Tech, and Sportline DEFENDANT

          OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE

         Currently before the Court are:

• Plaintiff Active Marketing Group, Inc.'s ("Active") Motion for Reconsideration (Doc. 96), Memorandum of Law in Support (Doc. 97), and Declaration of Eric A. Bartsch in Support (Doc. 98); Defendant EB Brands Holdings, Inc.'s ("EB") Memorandum of Law in Opposition (Doc. 102), Declaration of David J. Edwards, Esq. and supporting documents (Docs. 103, 104), Declaration of Scott D. Piper, Esq. and supporting documents (Docs. 105, 106), and Declaration of Lee Woodard, Esq. (Doc. 107); and Active's Reply Memorandum of Law (Doc. 117) and Declaration of Eric A. Bartsch in Further Support (Doc. 118);
• EB's Motion to Withdraw Its Answer (Doc. 125), and Declaration of Daniel F. Dooley, Temporary Receiver, in Support (Doc. 126);
• Proposed Intervenor-Defendant Daniel F. Dooley's Motion for Intervention (Doc. 109), Memorandum of Law in Support (Doc. 110), Declaration of Daniel F. Dooley in Support (Doc. 111), and Declaration of Pieter Van Tol in Support (Doc. 112); and Active's Memorandum of Law in Opposition (Doc. 121);
• Active's Motion for Summary Judgment (Doc. 67), Memorandum of Law in Support (Doc. 68), Declaration of Todd Grisoff in Support (Doc. 69), and Statement of Facts in Support and supporting documents (Docs. 70, 72); EB's Response and Memorandum of Law in Opposition (Doc. 78), and Responses to Statement of Undisputed Material Facts (Doc. 82); and Active's Reply Memorandum of Law in Support (Doc. 86);
• Active's Motion for Attorneys' Fees, Costs, and Expenses (Doc. 75) and Affidavit of W. Teague Orgeman in Support (Doc. 76); EB's Response (Doc. 87); and the Response of David J. Edwards (Doc. 88); and
• Active's Motion for Leave to Withdraw as Co-Counsel (Doc. 85).

         As explained below, Active's Motion for Reconsideration (Doc. 96) is DENIED; EB's Motion to Withdraw Its Answer (Doc. 125) is GRANTED; Mr. Dooley's Motion for Intervention (Doc. 109) is DENIED; Active's Motion for Summary Judgment (Doc. 67) is GRANTED; Active's Motion for Attorneys' Fees, Costs, and Expenses (Doc. 75) is GRANTED IN PART AND DENIED IN PART; and Active's Motion for Leave to Withdraw as Co-Counsel (Doc. 85) is GRANTED.

         I. DISCUSSION

         The preceding paragraph might lead a naive reader to assume that this has become a rather complicated case. There is a sense in which he would be correct. But somewhat surprisingly, this case nevertheless has a rather simple resolution in the end.

         First, to set the stage, it is useful to provide a brief history of how the parties got into this mess:

As the Court has previously observed, this case arises out of a business dispute between the parties, who have been doing business with each other since 1989. Specifically, Active has been acting as a sales representative for EB, placing EB's products for sale with retailers like Walmart. The subject of this lawsuit is the most recent sales representative agreement ("the Contract") between the parties, into which they entered on December 31, 2014. Active alleges that on April 1, 2016, EB breached the Contract by unilaterally terminating it without adequate notice or good cause, attempting to restrict Active's ability to communicate with Walmart, and withholding sales commissions that were owed to Active by EB under the Contract. EB has denied Active's allegations and asserted counterclaims of its own, alleging inter alia that Active breached the Contract by failing to use its best efforts to sell and promote [EB]'s ...

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