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Case 6:17-cv-00315-GAP-TBS Document 27 Filed 04/21/17 Page 1 of 23 PageID 98

UNITED STATES DISTRICT COURT


1
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
2

3 KEVIN MCGARRY, LLC, d/b/a/ BUCKET
CREATIONS, a Florida limited liability
4 company; and KEVIN MCGARRY, a Florida
citizen,
5
Plaintiffs, Case No.: 6:17-cv-00315-31TBS
6
vs.
7
BUCKET INNOVATIONS, LLC, a Florida FIRST AMENDED COMPLAINT
8 limited liability company; GLOBAL
CONSUMER INNOVATIONS, LLC, a INJUNCTIVE RELIEF DEMANDED
9 Florida limited liability company; HIGH JURY TRIAL DEMANDED
WATER FLOOD GROUP, INC.; CASEY
10 HOLDER; a Florida citizen; BRIAN
OLEARY, an Ohio citizen; DAVID QUINN,
11 an Illinois citizen; RON GERMAN, an Ohio
citizen; and BUSTER MURPHY, LLC, a
12 Florida limited liability company,

13 Defendants.

14
Plaintiffs, KEVIN MCGARRY, LLC, d/b/a/ BUCKET CREATIONS and KEVIN
15
MCGARRY (collectively Bucket Creations), sue Defendants, BUCKET INNOVATIONS,
16
LLC; GLOBAL CONSUMER INNOVATIONS, LLC (GCI); HIGH WATER FLOOD
17
GROUP, INC. (High Water); CASEY HOLDER (Holder); BRIAN OLEARY
18
(OLeary); DAVID QUINN (Quinn); RON GERMAN (German); and, BUSTER
19
MURPHY, LLC (Buster Murphy), and allege as follows:
20

21

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Case 6:17-cv-00315-GAP-TBS Document 27 Filed 04/21/17 Page 2 of 23 PageID 99

NATURE OF THE ACTION


1
1. This is an action for declaratory relief for nonjoinder of patent inventorship, or
2
alternatively, declaratory relief for patent unenforceability and patent invalidity; money
3
damages for misappropriation of trade secrets; unfair and deceptive trade practices; breach of
4
contract; and, civil conspiracy.
5
PARTIES
6
2. Plaintiff, KEVIN MCGARRY, LLC, d/b/a BUCKET CREATIONS, is a
7
Florida limited liability company with one member, who is sui juris and is an adult citizen of
8
the State of Florida. Kevin McGarry, LLC owns the Florida fictitious entity, Bucket
9
Creations.
10
3. Plaintiff, KEVIN MCGARRY, is sui juris and is an adult citizen of the State
11
of Florida
12
4. Defendant, BUCKET INNOVATIONS, LLC, is a Florida limited liability
13
company with two members, High-Water Flood Group, Inc. and Global Consumer
14
Innovations, LLC.
15
5. Defendant, HIGH WATER FLOOD GROUP, INC., is a Florida corporation,
16
with its principal place of business located in the State of Florida.
17
6. Defendant, GLOBAL CONSUMER INNOVATIONS, LLC, is a Florida
18
limited liability company with four members, three of whom, upon information and belief,
19
are sui juris and are adult citizens of the State of Florida. The fourth member, upon
20
information and belief, is sui juris and is an adult citizen of the State of Colorado.
21

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7. Bucket Innovations, GCI, and High Water are effectively all the same
1
business entity, as they share members, officers, and directors, and provide the same goods
2
and services to the consuming public.
3
8. Defendant, BUSTER MURPHY, LLC, is a Florida limited liability company
4
with two members, Brent Baubach and Randall Murphy, who upon information and belief,
5
are sui juris and adult citizens of the State of Florida.
6
9. Defendant, CASEY HOLDER, is sui juris and is an adult citizen of the State
7
of Florida.
8
10. Defendant, BRIAN OLEARY, is sui juris and is an adult citizen of the State
9
of Ohio.
10
11. Defendant, DAVID QUINN, is sui juris and is an adult citizen of the State of
11
Illinois.
12
12. Defendant, RON GERMAN, is sui juris and is an adult citizen of the State of
13
Ohio.
14
SUBJECT MATTER JURISDICTION
15
13. The court has subject matter jurisdiction over this action, pursuant to 28
16
U.S.C. 1331, 1338, 2201, and 2202 because this action arises under the Declaratory
17
Judgment Act, 28 U.S.C. 2201 and 2202 and the patent laws of the United States, 35
18
U.S.C. 1, et seq.
19
14. The court has supplemental jurisdiction over the state law claims in this
20
action, pursuant to 28 U.S.C. 1367, because the state law claims are so related to the federal
21
claims that they form part of the same case or controversy.
22

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PERSONAL JURISDICTION
1
15. This court has general in personam jurisdiction over Bucket Innovations, High
2
Water, GCI, Holder, and Buster Murphy because they are Florida citizens, or they are located
3
in the State of Florida.
4
16. This court has specific in personam jurisdiction over OLeary, Quinn, and
5
German because they have minimum contacts with the State of Florida that arise from the
6
same common nucleus of operative facts as those at issue in this action.
7
17. Alternatively, this court has in personam jurisdiction over Bucket Innovations,
8
High Water, GCI, Holder, OLeary, Quinn, and German because they have already appeared
9
in this action and have not challenged jurisdiction in the first response to the initial
10
complaint.
11
VENUE
12
18. Venue is proper in this court, pursuant to 28 U.S.C. 1391(b), 1400, because
13
several Defendants reside in this district, a substantial part of the events or omissions giving
14
rise to this action occurred in this district, and Defendants are subject to in personam
15
jurisdiction in this district.
16
GENERAL FACTUAL ALLEGATIONS
17
19. There is an actual controversy within the jurisdiction of this court under 28
18
U.S.C. 2201 and 2202.
19
20. Kevin McGarry is the sole inventor of the invention taught by United States
20
Patent No. 6,471,221. The 221 Patent discloses a trash can system, wherein a tubular handle
21
is located in the lower portion of the trash can.
22

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21. In 2013, Kevin McGarry conceived of and sought improvement of the 221
1
Patent by refining the tubular handle and applying that containers of differing sizes, including
2
five gallon buckets. Kevin McGarry referred to the improvement as Grip-N-Grab Buckets.
3
22. Kevin McGarry formed a business relationship with Highwater in mid-2013.
4
Prior to disclosing improvements in the 221 Patent to High Water, on or about June 11,
5
2013, Kevin McGarry entered into certain non-disclosure agreements with High Water.
6
23. The non-disclosure agreements protected all confidential and proprietary
7
information shared by Kevin McGarry with High Water, including methods, processes, and
8
know-how.
9
24. The non-disclosure agreements further stated that High Water would not use
10
any disclosed information, commercially.
11
25. In addition, the non-disclosure agreements stated that Kevin McGarry did not
12
grant a license to High Water, nor any third party, for any proprietary rights under any patent
13
application.
14
26. Following execution of the non-disclosure agreements, Kevin McGarry and
15
Kevin McGarry, LLC disclosed trade secrets and confidential information to High Water,
16
consisting of methods, processes, and know-how.
17
27. On or about September 20, 2013, Kevin McGarry filed a provisional patent
18
application (App. No. 61/960,656) with the United States Patent & Trademark Office
19
(USPTO), for Grip-N-Grab Buckets. Significantly, the disclosure in the provisional
20
application contained the following description:
21
Trash can system, Bottom handle container. The present invention
22
is to provide a new and improve[d] container for emptying trash
23

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and liquids. The handle at the base will be located within the axle
1
assembly on the wheel container, horizontal and enclosed. Curved
to conform with the base of the 5 gallon commercial container, the
2
handle is to ensure a firm and secure method for the consumer
while emptying or pouring liquids ie.: paint, detergents, oils,
3
adhesive, food/pet products, etc.
4
28. After filing the provisional patent application, Kevin McGarry disclosed the
5
application to High Water.
6
29. On or about January 17, 2014, Kevin McGarry, LLC entered into a
7
memorandum of understanding with GCI to memorialize the parties intent to enter into a
8
contract concerning the Grip-N-Grab Buckets.
9
30. The memorandum of understanding states that Kevin McGarry, LLC retains
10
all ownership of intellectual property associated with Kevin McGarry, LLC, including
11
additions, improvements, alterations or modifications to the Grip-N-Grab Buckets, whether
12
such modifications were the result of Kevin McGarry, LLC or GCI.
13
31. In or about late January 2014, Kevin McGarry, LLC, Kevin McGarry, and
14
GCI entered into a first licensing agreement. The first licensing agreement granted GCI the
15
right to make, sell, and offer the invention taught by the 221 Patent, as well as any derivative
16
applications from the 221 Patent, including the provisional patent application for the Grip-
17
N-Grab Buckets. The first licensing agreement also granted GCI trademark rights to Grip-
18
N-Grab Buckets.
19
32. After executing the first license agreement, GCI issued a press release that
20
referred to Kevin McGarry as the inventor of the Grip-N-Grab Buckets. In subsequent press
21
releases, GCI and its affiliated entities, also refer to Kevin McGarry as an inventor of the
22
Grip-N-Grab Buckets.
23

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33. On or about February 14, 2014, Kevin McGarry, LLC entered into a non-
1
disclosure agreement with Buster Murphy, which such agreement was executed by Randall
2
Murphy on behalf of Buster Murphy. The agreement states that any information provided by
3
Kevin McGarry, LLC to Buster Murphy, including proprietary pictures, drawings, designs,
4
and intellectual property, was to be kept confidential, and such information could only be
5
shared for purposes of bringing to the market Kevin McGarrys ideas, products, and
6
services.
7
34. As understood by Kevin McGarry, LLC, Buster Murphy had business
8
relationships with paint suppliers such as Sherwin Williams and Valspar, that might have
9
been advantageous to Kevin McGarry, LLC.
10
35. After executing the agreement with Buster Murphy, Kevin McGarry, LLC
11
disclosed certain confidential information to Buster Murphy, including both the provisional
12
patent application and other associated materials related to the provisional patent application.
13
36. Upon information and belief, approximately three months after executing the
14
non-disclosure agreement, Randall Murphy entered into an employment or independent
15
contractor relationship with Bucket Innovations.
16
37. Upon information and belief, Randall Murphy, acting on behalf of Buster
17
Murphy, provided confidential information to Bucket Innovations, which such information
18
was protected by the non-disclosure agreement, and was not shared with Bucket Innovations
19
pursuant to the only permitted disclosure in the non-disclosure agreement.
20
38. On May 6, 2014, OLeary, Quinn, Holder, and German filed a design patent
21
application (App. No. 29/490,111) claiming the ornamental design of the Grip-N-Grab
22

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Buckets. The design patent application issued on April 7, 2015, as United States Patent
1
D726,385.
2
39. OLeary, Quinn, Holder, and German did not consult with Kevin McGarry
3
prior to filing the design patent application. OLeary, Quinn, Holder, and German also did
4
not disclose Kevin McGarry to the USPTO as an inventor on the 385 Patent, and ultimately
5
they obtained the 385 Patent with incorrect inventorship.
6
40. The 385 Patent is a derivative of the 221 Patent.
7
41. Bucket Innovations is the assignee of the 385 Patent.
8
42. On May 6, 2014, OLeary, Quinn, Holder, and German also filed a utility
9
patent application (App. No. 14/271,315) claiming the Grip-N-Grab Buckets. The utility
10
patent application is, at a minimum, derived from the provisional patent application filed by
11
Kevin McGarry in September 2013, and subsequently disclosed by Kevin McGarry to High
12
Water and GCI.
13
43. OLeary, Quinn, Holder, and German did not consult with Kevin McGarry
14
prior to filing the utility patent application. OLeary, Quinn, Holder, and German also did
15
not disclose Kevin McGarry to the USPTO as an inventor on the utility patent application,
16
which identifies incorrect inventorship.
17
44. Bucket Innovations is the assignee of the utility patent application.
18
45. In mid-late 2014, Kevin McGarry, LLC, Kevin McGarry, and GCI had certain
19
disputes regarding terms of the first licensing agreement. As a result, the parties exchanged
20
competing drafts of proposed new licensing terms and negotiated with each other regarding
21
same. The end result of this process was a second licensing agreement.
22

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46. Kevin McGarry went on an extended vacation in October 2014, and gave his
1
authorized representative a power of attorney in his absence, for the purpose of executing the
2
second licensing agreement.
3
47. On December 3, 2014, Kevin McGarry, LLC, Kevin McGarry, and GCI
4
executed a termination agreement of the first licensing agreement, and contemporaneously,
5
Kevin McGarry, LLC, Kevin McGarry, and Bucket Innovations executed the second
6
licensing agreement. The second licensing agreement was primarily directed to revising the
7
compensation structure identified in the first licensing agreement.
8
48. While executing the second licensing agreement, Bucket Innovations knew
9
that Kevin McGarrys authorized representative was suffering from diminished capacity, but
10
Bucket Innovations coerced the representative into executing the second licensing agreement
11
by alleging that Kevin McGarry would have no rights whatsoever in any intellectual property
12
unless he signed the second licensing agreement. As a result, the authorized representative
13
executed the second licensing agreement on Kevin McGarrys behalf.
14
49. On December 10, 2014, Holder filed a second design patent application (App.
15
No. 29/511,426), claiming, again, the ornamental design of the Grip-N-Grab Buckets. The
16
design patent application issued on July 19, 2016, as United States Patent D762,032.
17
50. Holder did not consult with Kevin McGarry prior to filing the second design
18
patent application. Holder also did not disclose Kevin McGarry to the USPTO as an inventor
19
on the 032 Patent, and ultimately he obtained the 032 Patent with incorrect inventorship.
20
51. The 032 Patent is a derivative of the 221 Patent.
21
52. Bucket Innovations is the assignee of the 032 Patent.
22

23

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53. Bucket Innovations is publicly passing off the underlying technology behind
1
the 385 Patent, the 032 Patent, and the utility patent application as its own, despite that each
2
of these are derived from the 221 Patent, and owned therefore by Kevin McGarry.
3
54. Under the first licensing agreement, Kevin McGarry owns all derivative
4
applications of the 221 Patent, or at a minimum, is an inventor of patentable subject matter
5
derived from the 221 Patent, including the 385 Patent, the 032 Patent, and the utility patent
6
application.
7
55. All general and statutory conditions precedent to this action have either
8
occurred or have been waived by operation of law.
9
56. Kevin McGarry, LLC and Kevin McGarry retained the law firm of Watson
10
LLP to represent their interests in this proceeding, and is obligated to pay such firm
11
reasonable attorneys fees and costs. Kevin McGarry, LLC and Kevin McGarry are
12
authorized to recover attorneys fees and costs from Defendants, pursuant to federal and state
13
statutes, as well as a contract between several Defendants.
14
COUNT I
15
DECLARATORY JUDGMENT OF NONJOINDER OF INVENTORSHIP
(Bucket Innovations, OLeary, Quinn, Holder, and German)
16
57. Kevin McGarry, LLC and Kevin McGarry re-allege and incorporate the
17
allegations contained in paragraphs 2 through 56, as though fully set forth herein.
18
58. Through error, Kevin McGarry was not named as an inventor on the 385
19
Patent, nor the 032 Patent.
20
59. Kevin McGarry had no deceptive intent, with respect to being a non-joined
21
inventor of the 385 Patent and the 032 Patent.
22

23

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60. Bucket Innovations, OLeary, Quinn, Holder, and German are responsible for
1
this error, with respect to the 385 Patent, and they continue to profit from tit.
2
61. Bucket Innovations and Holder are responsible for this error, with respect to
3
the 032 Patent, and they continue to profit from it.
4
62. As a result of the acts described in the preceding paragraphs, there exists a
5
controversy of sufficient immediacy and reality to warrant the issuance of a declaratory
6
judgment, pursuant to 35 U.S.C. 256, to require that the Director of the USPTO correct
7
inventorship in the 385 Patent and the 032 Patent.
8
63. A judicial declaration is necessary and appropriate so that Kevin McGarry
9
may ascertain his rights concerning the 385 Patent and the 032 Patent.
10
WHEREFORE, Plaintiff, KEVIN MCGARRY, demands judgment against
11
Defendants, BUCKET INNOVATIONS, LLC; CASEY HOLDER; BRIAN OLEARY;
12
DAVID QUINN; and RON GERMAN, and seeks the entry of an order, pursuant to 35
13
U.S.C. 256, directing the USPTO to correct inventorship in the 385 Patent and the 032
14
Patent; declaring that Kevin McGarry is the prevailing party in this proceeding and this case
15
is exceptional, and awarding Kevin McGarry his reasonable attorneys fees and costs,
16
pursuant to 35 U.S.C. 285; ordering Defendants to pay all fees, expenses, and costs
17
associated with this action; and awarding such other relief as this court deems just and
18
proper.
19

20

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COUNT II
1
DECLARATORY JUDGMENT OF UNENFORCEABILTY
(Bucket Innovations, OLeary, Quinn, Holder, and German)
2
Brought In The Alternative To Count I
3
64. Kevin McGarry, LLC and Kevin McGarry re-allege and incorporate the
4
allegations contained in paragraphs 2 through 56, as though fully set forth herein.
5
65. As a result of the acts described in the preceding paragraphs, there exists a
6
controversy of sufficient immediacy and reality to warrant the issuance of a declaratory
7
judgment of unenforceability.
8
66. A judicial declaration is necessary and appropriate so that Kevin McGarry
9
may ascertain his rights regarding the enforceability of the 385 Patent and the 032 Patent,
10
given that both patents fail to identify the correct inventive entity.
11
67. Kevin McGarry, LLC and Kevin McGarry are entitled to a declaratory
12
judgment that the 385 Patent and the 032 Patent is unenforceable due to inequitable conduct
13
by OLeary, Quinn, Holder, and German before the USPTO.
14
WHEREFORE, Plaintiffs, KEVIN MCGARRY, LLC, d/b/a/ BUCKET
15
CREATIONS and KEVIN MCGARRY, demand judgment against Defendants, BUCKET
16
INNOVATIONS, LLC; CASEY HOLDER; BRIAN OLEARY; DAVID QUINN; and RON
17
GERMAN, and seek the entry of an order declaring that the 385 Patent and the 032 Patent
18
is unenforceable; declaring that Plaintiffs are the prevailing party in this proceeding and this
19
case is exceptional, and awarding Plaintiffs their reasonable attorneys fees and costs,
20
pursuant to 35 U.S.C. 285; ordering Defendants to pay all fees, expenses, and costs
21
associated with this action; and awarding such other relief as this court deems just and
22
proper.
23

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COUNT III
1
DECLARATORY JUDGMENT OF INVALIDITY
(Bucket Innovations, OLeary, Quinn, Holder, and German)
2
Brought In The Alternative To Count I
3
68. Kevin McGarry, LLC and Kevin McGarry re-allege and incorporate the
4
allegations contained in paragraphs 2 through 56, as though fully set forth herein.
5
69. As a result of the acts described in the preceding paragraphs, there exists a
6
controversy of sufficient immediacy and reality to warrant the issuance of a declaratory
7
judgment of invalidity.
8
70. A judicial declaration is necessary and appropriate so that Kevin McGarry
9
may ascertain his rights regarding the validity of the 385 Patent and the 032 Patent, given
10
that both patents fail to identify the correct inventive entity.
11
71. Kevin McGarry, LLC and Kevin McGarry are entitled to a declaratory
12
judgment that the claims of the 385 Patent and the 032 Patent are invalid under one or more
13
provisions of 35 U.S.C. 101, 102, 103 and/or 112.
14
72. Due to OLeary, Quinn, Holder, and Germans inequitable conduct before the
15
USPTO, inventorship in the 385 Patent and 032 Patent cannot be corrected and both patents
16
are invalid as a matter of law.
17
WHEREFORE, Plaintiffs, KEVIN MCGARRY, LLC, d/b/a/ BUCKET
18
CREATIONS and KEVIN MCGARRY, demand judgment against Defendants, BUCKET
19
INNOVATIONS, LLC; CASEY HOLDER; BRIAN OLEARY; DAVID QUINN; and RON
20
GERMAN, and seek the entry of an order declaring that the 385 Patent and the 032 Patent
21
is invalid; declaring that Plaintiffs are the prevailing party in this proceeding and this case is
22
exceptional, and awarding Plaintiffs their reasonable attorneys fees and costs, pursuant to 35
23

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U.S.C. 285; ordering Defendants to pay all fees, expenses, and costs associated with this
1
action; and awarding such other relief as this court deems just and proper.
2
COUNT IV
3
MISAPPROPRIATION OF TRADE SECRETS
UNDER CHAPTER 688.001, et seq., FLORIDA STATUTES
4
AND FLORIDA COMMON LAW
(High Water, GCI, Bucket Innovations, Buster Murphy, Holder)
5
73. Kevin McGarry, LLC and Kevin McGarry re-allege and incorporate the
6
allegations contained in paragraphs 2 through 56, as though fully set forth herein.
7
74. Kevin McGarry, LLC and Kevin McGarry owned trade secrets and
8
confidential that they disclosed to High Water under a non-disclosure agreement.
9
75. Upon information and belief, High Water improperly disclosed such trade
10
secrets to GCI and Bucket Innovations, through Holder.
11
76. Upon information and belief, Randall Murphy, acting on behalf of Buster
12
Murphy and after entering in an employment or independent contractor relationship with
13
Bucket Innovations, wrongly provided confidential information to Bucket Innovations, which
14
such information was protected by the non-disclosure agreement.
15
77. Kevin McGarry, LLC and Kevin McGarry suffered a loss as a result of High
16
Water, GCI, Bucket Innovations, Holder, and Buster Murphys violation of the Florida
17
Uniform Trade Secrets Act, Chapter 688.001, et seq., Florida Statutes.
18
78. Kevin McGarry, LLC and Kevin McGarrys trade secrets and confidential
19
information were related to a product or service used in, or intended to be used in, interstate
20
or foreign commerce.
21

22

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79. Kevin McGarry, LLC and Kevin McGarry took reasonable precautions to
1
maintain secrecy of its trade secrets by, inter alia, requiring third parties such as High Water
2
and Buster Murphy to execute non-disclosure agreements.
3
80. High Water, GCI, Bucket Innovations, Holder, and Buster Murphy
4
misappropriated the trade secrets by using Kevin McGarry, LLC and Kevin McGarrys trade
5
secrets for commercial purposes by covertly filing a utility patent application on the Grip-N-
6
Grab Buckets, which such application is based on trade secrets disclosed to High Water,
7
GCI, Bucket Innovations, Holder, and Buster Murphy by Kevin McGarry, LLC and Kevin
8
McGarry.
9
81. High Water, GCI, Bucket Innovations, Holder, and Buster Murphy knew or
10
had reason to know that they improperly used or disclosed Kevin McGarry, LLC and Kevin
11
McGarrys trade secrets.
12
82. High Water, GCI, Bucket Innovations, Holder, and Buster Murphys actions
13
destroyed secrecy, and they disclosed Kevin McGarry, LLC and Kevin McGarrys trade
14
secrets without consent for the disclosures they made.
15
83. Kevin McGarry, LLC and Kevin McGarry suffered damages.
16
WHEREFORE, Plaintiffs, KEVIN MCGARRY, LLC, d/b/a/ BUCKET
17
CREATIONS and KEVIN MCGARRY, demand judgment against Defendants, BUCKET
18
INNOVATIONS, LLC; GLOBAL CONSUMER INNOVATIONS, LLC; HIGH WATER
19
FLOOD GROUP, INC.; CASEY HOLDER; and BUSTER MURPHY, LLC, jointly and
20
severally, and seek actual damages, punitive damages, and a recovery of attorneys fees and
21
costs, pursuant to Section 688.005, Florida Statutes.
22

23

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COUNT V
1
UNFAIR AND DECEPTIVE TRADE PRACTICES
UNDER CHAPTER 501.204, et. seq., FLORIDA STATUTES
2
(GCI, Bucket Innovations, Holder)
3
84. Kevin McGarry, LLC and Kevin McGarry re-allege and incorporate the
4
allegations contained in paragraphs 2 through 56, and paragraphs 74 through 82, as though
5
fully set forth herein.
6
85. GCI, Bucket Innovations, and Holder committed deceptive and unfair trade
7
practices in interstate and intrastate commerce by passing off the 385 Patent, 032 Patent,
8
and utility patent application as intellectual property created solely by OLeary, Quinn,
9
Holder, and German.
10
86. As a result of unfair and deceptive trade practices, GCI, Bucket Innovations,
11
and Holder caused Kevin McGarry, LLC and Kevin McGarry to suffer actual damages.
12
WHEREFORE, Plaintiffs, KEVIN MCGARRY, LLC, d/b/a/ BUCKET
13
CREATIONS and KEVIN MCGARRY, demand judgment against Defendants, GLOBAL
14
CONSUMER INNOVATIONS, LLC; BUCKET INNOVATIONS, LLC; and CASEY
15
HOLDER, jointly and severally, and seek a recovery of actual damages, punitive damages,
16
and a recovery of attorneys fees and costs, pursuant to Section 501.2105, Florida Statutes.
17
COUNT VII
ACCOUNTING
18
(Bucket Innovations)
19
87. Kevin McGarry, LLC and Kevin McGarry re-allege and incorporate the
20
allegations contained in paragraphs 2 through 56, as though fully set forth herein.
21
88. The second licensing agreement between Kevin McGarry, LLC and Bucket
22
Innovations provides for an audit right.
23

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89. Upon demand by Kevin McGarry, LLC, Bucket Innovations is obligated,


1
within 30 days, to permit access to its books and records for the purpose of an audit.
2
90. Kevin McGarry, LLC made an audit demand on Bucket Innovations on or
3
about February 3, 2017 and March 15, 2017.
4
91. Bucket Innovations ignored or otherwise refused to provide Kevin McGarry,
5
LLC with an audit of its books and records.
6
92. According to Bucket Innovations, it cannot determine which contract, if any,
7
it has with Kevin McGarry, LLC.
8
93. Bucket Innovations has paid, and is currently paying, Kevin McGarry, LLC
9
royalties under the second licensing agreement.
10
94. There is a fiduciary relationship between Kevin McGarry, LLC and Bucket
11
Innovations because Bucket Innovations dominates the financial aspect of the parties
12
relationship, such that Bucket Innovations reposed a high level of confidence, and trust was
13
accepted by Kevin McGarry, LLC.
14
95. The transactions under the second licensing agreement are complex due to
15
aggregation of monies due to Kevin McGarry, LLC.
16
96. Kevin McGarry, LLC has been damaged by Bucket Innovations refusal to
17
permit an audit of its books and records.
18
WHEREFORE, Plaintiff, KEVIN MCGARRY, LLC, d/b/a/ BUCKET
19
CREATIONS, demands judgment against Defendant, BUCKET INNOVATIONS, LLC, and
20
seeks general damages, and a recovery of attorneys fees attorneys fees and costs, pursuant
21
to a contract between the parties.
22

23

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Case 6:17-cv-00315-GAP-TBS Document 27 Filed 04/21/17 Page 18 of 23 PageID 115

COUNT VIII
1
BREACH OF CONTRACT
(GCI)
2
97. Kevin McGarry, LLC and Kevin McGarry re-allege and incorporate the
3
allegations contained in paragraphs 2 through 56, as though fully set forth herein.
4
98. The memorandum of understanding contains the understanding between
5
Kevin McGarry, LLC and GCI that Kevin McGarry, LLC retains ownership of all
6
intellectual property associated with Kevin McGarry, LLC, including additions,
7
improvements, alterations, or modifications whether such modification is the result of work
8
by GCI or Kevin McGarry, LLC.
9
99. The first licensing agreement carries forth this understanding, and defines
10
invention as inclusive of any derivative patent applications of the 221 Patent.
11
100. Patent Application No. 29/490,111 is a derivative of the 221 Patent. This
12
application ultimately matured into the 385 Patent.
13
101. Patent Application No. 14/271,315 is a derivative of the 221 Patent. This
14
application has not yet matured into an issued patent.
15
102. Patent Application No. 29/511,426 is a derivative of the 221 Patent. This
16
application ultimately matured into the 032 Patent.
17
103. On or about September 4, 2014, Holder, OLeary, Quinn, and German
18
assigned Patent Application No. 29/490,111 to Bucket Innovations.
19
104. On or about September 4, 2014, Holder, OLeary, Quinn, and German
20
assigned Patent Application No. 14/271,315 to Bucket Innovations.
21

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18
Case 6:17-cv-00315-GAP-TBS Document 27 Filed 04/21/17 Page 19 of 23 PageID 116

105. On or about April 10, 2017, Holder assigned the 032 Patent to Bucket
1
Innovations.
2
106. GCI breached the first licensing agreement because it either assisted or
3
acquiesced to Holder, OLeary, Quinn, and German assigning their entire interest in Patent
4
Application No. 29/490,111 and Patent Application No. 14/271,315 to Bucket Innovations,
5
when such interest should have been assigned solely to Kevin McGarry, LLC.
6
107. Bucket Innovations wrongfully accepted the foregoing assignments because it
7
knew that the intellectual property should have been assigned to Kevin McGarry, LLC by
8
reason of the first licensing agreement.
9
108. Kevin McGarry, LLC has been damaged by GCIs breach of contract.
10
109. Kevin McGarry, LLC made a pre-suit mediation demand on GCI on or about
11
March 15, 2017.
12
110. GCI has ignored or otherwise refused to provide Kevin McGarry, LLC with
13
pre-suit mediation.
14
WHEREFORE, Plaintiff, KEVIN MCGARRY, LLC, d/b/a/ BUCKET
15
CREATIONS, demands judgment against Defendant, GLOBAL CONSUMER
16
INNOVATIONS, LLC, and seeks general damages, prejudgment interest, and a recovery of
17
attorneys fees and costs, pursuant to a contract between the parties.
18

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Case 6:17-cv-00315-GAP-TBS Document 27 Filed 04/21/17 Page 20 of 23 PageID 117

COUNT IX
1
BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
(GCI, Bucket Innovations)
2
111. Kevin McGarry, LLC and Kevin McGarry re-allege and incorporate the
3
allegations contained in paragraphs 2 through 56, paragraphs 74 through 82, and paragraph
4
85, as though fully set forth herein.
5
112. The first licensing agreement and second licensing agreement contain an
6
implied covenant of good faith and fair dealing.
7
113. Under the first licensing agreement, GCI made an implied covenant of good
8
faith to protect Kevin McGarry, LLCs reasonable contractual expectations.
9
114. GCI breached the first licensing agreement and has interfered with Kevin
10
McGarry LLCs reasonable expectations.
11
115. Under the second licensing agreement, Bucket Innovations made an implied
12
covenant of good faith to protect Kevin McGarry, LLCs reasonable contractual
13
expectations.
14
116. Bucket Innovations breached the second licensing agreement and has
15
interfered with Kevin McGarry LLCs reasonable expectations. GCI and Bucket
16
Innovations, through conscious and deliberate acts, has failed or refused to discharge their
17
contractual obligations, which unfairly frustrates the purpose of the first and second licensing
18
agreements and disappoints Kevin McGarry, LLCs contractual expectations.
19
117. GCI and Bucket Innovations breach of contract has deprived Kevin McGarry,
20
LLC of contractual benefits conferred by the first and second licensing agreements.
21
118. Kevin McGarry, LLC has suffered damages.
22

23

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Case 6:17-cv-00315-GAP-TBS Document 27 Filed 04/21/17 Page 21 of 23 PageID 118

WHEREFORE, Plaintiff, KEVIN MCGARRY, LLC, d/b/a/ BUCKET


1
CREATIONS, demands judgment against Defendants, GLOBAL CONSUMER
2
INNOVATIONS, LLC and BUCKET INNOVATIONS, LLC, jointly and severally, and
3
seeks general damages, prejudgment interest, and a recovery of attorneys fees and costs,
4
pursuant to a contract between the parties.
5
COUNT X
6
CIVIL CONSPIRACY
(GCI, Bucket Innovations, OLeary, Quinn, Holder, and German)
7
119. Kevin McGarry, LLC and Kevin McGarry re-allege and incorporate the
8
allegations contained in paragraphs 2 through 56, paragraphs 74 through 82, and paragraph
9
85, as though fully set forth herein.
10
120. GCI, Bucket Innovations, OLeary, Quinn, Holder, and German are parties to
11
an agreement to an unlawful act or a lawful act by unlawful means because OLeary, Quinn,
12
Holder, and German covertly filed patent applications intentionally excluding Kevin
13
McGarry as a named-inventor and then subsequently executing assignments to transfer
14
interests in the patent applications to Bucket Innovations, when such transfer should have
15
been executed in favor of Kevin McGarry, LLC.
16
121. Executing such assignments, among other things, constitutes an overt act in
17
the furtherance of the conspiracy.
18
122. Kevin McGarry, LLC and Kevin McGarry have been damaged by GCI,
19
Bucket Innovations, OLeary, Quinn, Holder, and German as a result of the acts done under
20
the conspiracy.
21

22

23

21
Case 6:17-cv-00315-GAP-TBS Document 27 Filed 04/21/17 Page 22 of 23 PageID 119

WHEREFORE, Plaintiffs, KEVIN MCGARRY, LLC, d/b/a/ BUCKET


1
CREATIONS and KEVIN MCGARRY, demand judgment against Defendants, GLOBAL
2
CONSUMER INNOVATIONS, LLC; BUCKET INNOVATIONS, LLC; CASEY
3
HOLDER; BRIAN OLEARY; DAVID QUINN; and RON GERMAN, jointly and severally,
4
and seek general damages, punitive damages, and a recovery of attorneys fees and costs.
5

6
DATED this 21st day of April, 2017
7

8 Respectfully submitted,
9 /s/ Coleman W. Watson
Coleman W. Watson, Esq.
10 Florida Bar. No. 0087288
California Bar No. 266015
11 Georgia Bar No. 317133
New York Bar No. 4850004
12 Email: coleman@watsonllp.com
courtney@watsonllp.com
13 docketing@watsonllp.com
Ronika J. Carter, Esq.
14 Florida Bar No. 0122358
Email: ronika@watsonllp.com
15
WATSON LLP
16 189 S. Orange Avenue, Suite 810
Orlando, FL 32801
17 T: 407.377.6634
F: 407.377.6688
18
Attorneys for Plaintiffs,
19 KEVIN MCGARRY, LLC, d/b/a/ BUCKET
CREATIONS and KEVIN MCGARRY
20

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Case 6:17-cv-00315-GAP-TBS Document 27 Filed 04/21/17 Page 23 of 23 PageID 120

CERTIFICATE OF SERVICE
1
I HEREBY CERTIFY that on April 21, 2017, pursuant to Fed. R. Civ. P. 5, I
2
electronically filed the foregoing with the Clerk of Court by using the CM/ECF system,
which will send an electronic notice to the following lead counsel of record in this
3
proceeding:
4
Stephen C. Thomas, Esq.
Drew Sorrell, Esq.
5
Ahmad El-Gendi, Esq.
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
6
215 North Eola Drive
Orlando, FL 32801
7
Email: stephen.thomas@lowndes-law.com
8
drew.sorrell@lowndes-law.com
ahmad.elgendi@lowndes-law.com
9
/s/ Coleman W. Watson
10
Coleman W. Watson, Esq.
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