     Case 8:20-cv-02886-TPB-AAS Document 1 Filed 12/04/20 Page 1 of 9 PageID 1




                               UNITED STATES DISTRICT COURT
                                MIDDLE DISTRICT OF FLORIDA
                                      TAMPA DIVISION

JABIL INC., a Delaware corporation;

                Plaintiff;                              Case No. ___________________
v.

Congatec AG;

                Defendant.
                                                \

              COMPLAINT FOR DAMAGES AND REQUEST FOR JURY TRIAL

         Plaintiff, Jabil Inc. (“Jabil”), by and through its undersigned attorneys, brings suit against

Defendant, Congatec AG (“Congatec”), and alleges as follows.

                                   NATURE OF THE ACTION

         1.     In 2018, Congatec requested that Jabil provide engineering and technical services

for Congatec’s New Product Introduction.             Congatec knew there would be substantial

implementation expenses associated with the project. In particular, Congatec recognized that

Jabil would have to hire employees, allocate manufacturing floor space, and incur costs to

support Congatec’s new project. To memorialize the terms of the engagement, Jabil and

Congatec began negotiating a manufacturing services agreement (“MSA”) and the Parties

executed an Interim Letter of Agreement (“LOA”) on or about November 8, 2018, effective

October 23, 2018, to ensure all costs incurred by Jabil would be reimbursed by Congatec. To this

day, Congatec refuses to honor its agreement to reimburse Jabil for all costs and expenses that

were incurred, approved, and substantiated.
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                                            PARTIES

        2.      Jabil is a Delaware corporation with its principal place of business in St.

Petersburg, Florida.

        3.      Congatec, upon information and belief, is a citizen of Germany and it has its

principal place of business in Deggendorf, Germany.

                                 VENUE AND JURISDICTION

        4.      The actions alleged are for damages in excess of $75,000.00, exclusive of interest,

attorneys’ fees, or costs.

        5.      This Court has jurisdiction pursuant to 28 U.S.C. § 1332.

        6.      Jurisdiction and venue in the United States District Court for the Middle District

of Florida is likewise proper based upon the Parties agreement for Governing Law related to or

arising under the (“LOA”), which is attached as Exhibit A.

             CONDITIONS PRECEDENT/PERFORMANCE/CONSIDERATION

        7.      All conditions precedent to the commencement or maintenance of the actions

alleged have occurred or the occurrence of such has been waived by Congatec’s actions. Jabil

has performed all obligations under the contract alleged or such performance has been waived by

Congatec’s breach of contractual and common law obligations.

                                  GENERAL ALLEGATIONS

                                     Congatec Engages Jabil

        8.      Jabil is a manufacturing solutions provider that delivers comprehensive design,

manufacturing, supply chain, and product management services.

        9.      Congatec is a Germany-based technology company focusing on high-performance

embedded computing products.




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       10.     In anticipation of Jabil manufacturing Congatec’s New Product Introduction, the

parties discussed in detail the various requirements of the project, including the costs associated

with the implementation of the project.

       11.     The parties agreed that Jabil would begin the implementation process while

negotiating a MSA to memorialize the terms of their manufacturing relationship.

       12.     Notwithstanding the ongoing negotiations, the parties agreed to move forward

with the project prior to execution of the MSA, all the while affirming that Jabil would recoup all

of its implementation costs.

       13.     Relying on the LOA, and with Congatec’s full approval and authorization, Jabil

hired engineers and technicians, allocated manufacturing floor space, and incurred costs for

material handling and Flexline and Supercell usage to support Congatec’s new project.

       14.     From November 2018 May 2019, Jabil had incurred a total of at least $246,137 in

actual costs associated with Congatec’s New Product Introduction, even though the MSA had not

yet been finalized and executed.

       15.     On or about May 2, 2019, executives from Jabil and Congatec confirmed orally

the agreement that Congatec would reimburse Jabil for all costs associated with Congatec’s New

Product Introduction.

       16.     On or about May 8, 2019, given that the MSA had yet to be finalized and Jabil

incurred substantial expenses, Thomas Frommer, Jabil’s Director of Sales, sent Thomas

Chiarcos, Congatec’s Director of Supply Chain & Global Sourcing, an email to confirm

Congatec’s agreement to reimburse Jabil for the implementation costs.




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       17.     Mr. Chiarcos confirmed in writing that Congatec was “commit[ted] to the related

costs, which had been occurred [sic] due to the NPIs and duration till [sic] Mass production.” See

Exhibit B.

       18.     On or about May 8, 2019, executives from Jabil had another telephone

conversation with Mr. Chiarcos, during which Mr. Chiarcos confirmed Congatec’s commitment

to pay the costs associated with Congatec’s New Product Introduction.

       19.     Shortly thereafter, on or about May 8, 2019, Jabil sent Mr. Chiarcos an e-mail

confirming Congatec’s agreement to reimburse Jabil for the costs associated with Congatec’s

New Product Introduction, stating in relevant part:

       Based on written above please confirm following:

       1. Congatec will compensate Jabil Penang $246.137 of actual Set up and NPI cost for the
       period of November 2018-April 2019.
       2. Congatec will compensate Jabil Penang $112.595 (or slightly adjusted amount in
       July) of estimated NPI cost for the period May 2019-July 2019.

See Exhibit C.

       20.     Again, Mr. Chiarcos confirmed Congatec’s agreement to reimburse Jabil for the

implantation costs. See Exhibit C.

       21.     On or about May 23, 2019, Mr. Chiarcos sent another email to Jabil, stating in

relevant part: “as confirmed, verbally, congatec [sic] will compensate the amount of ~$358.732.

depending on real costs, occurring till [sic] end of NPI period to existing builts [sic].” See

Exhibit D.

       22.     At all times material hereto, Congatec held out Mr. Chiarcos as its agent, and

Jabil understood that Mr. Chiarcos had actual or apparent authority to bind Congatec.

       23.     Based on Congatec’s agreement to pay, Jabil devoted and expended significant

resources for Congatec’s project, incurring approximately $358,732 in implementation costs.



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                                     Congatec Refuses to Pay

       24.     On June 5, 2020, Jabil made a claim to Congatec for reimbursement of

implementation expenses in the amount of $358,732.00.

       25.     On June 18, 2020, for the first time, Congatec notified Jabil that it would not pay

the amount due under the LOA.

       26.     Jabil issued another demand to Congatec, dated July 7, 2020, requesting payment

of the expenses incurred under the LOA.

       27.     Congatec responded by refusing to pay the full amount due.

                             COUNT I: BREACH OF CONTRACT

       28.     Jabil incorporates the allegations of paragraphs 1-27 as if set forth in full herein.

       29.     This is an action for breach of a written contract.

       30.     Jabil and Congatec entered into the LOA.

       31.     At all times material hereto, Jabil performed its obligations in the manner

specified in the LOA.

       32.     Congatec breached the LOA by failing and refusing to pay under the terms and

provisions of the LOA.

       33.     Congatec continues to fail and refuse to perform its obligations required by the

terms of the LOA.

       34.     As a direct result of Congatec’s breach, Jabil has suffered damages in the amount

of $358,732, exclusive of interest, costs, and attorneys’ fees.

       WHEREFORE, Plaintiff Jabil demands judgment against Defendant Congatec for

damages, pre- and post-judgment interest, and for such other and further relief as the Court may

deem just and proper.




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                             COUNT II: UNJUST ENRICHMENT

       35.     Jabil incorporates the allegations of paragraphs 1-27 as if set forth in full herein.

       36.     This is an action for unjust enrichment.

       37.     Congatec requested Jabil provide engineering and technical services for

Congatec’s New Product Introduction.

       38.     Jabil provided such engineering and technical services in accordance with

Congatec’s directions.

       39.     Upon information and belief, Congatec used its manufacturing relationship with

Jabil, a world-class manufacturing solutions provider, and the infrastructure Jabil built to support

its project, to garner positive financial arrangements, marketing and/or goodwill, all the while

leaving Jabil to shoulder the attendant costs.

       40.     Congatec’s acceptance and retention of the benefits it received under these

circumstances would make it inequitable for Congatec to retain the benefit without paying the

value thereof in the amount of $358,732.

       WHEREFORE, Plaintiff Jabil demands judgment against Defendant Congatec for

damages, pre- and post-judgment interest, and for such other and further relief as the Court may

deem just and proper.

COUNT III: BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

       41.     Jabil incorporates the allegations of paragraphs 1-27 as if set forth in full herein.

       42.     This is an action for breach of the covenant of good faith and fair dealing.

       43.     To the extent the parties’ working relationship and the written LOA can be read to

provide Congatec with discretion as to what implementation costs to approve or disapprove,

Congatec must do so in good faith.




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         44.   Throughout the parties’ business dealings, Jabil provided Congatec with actual

and estimated implementation costs.

         45.   Congatec not only approved Jabil’s implementation costs, but it failed to

disapprove or reject the implementation costs.

         46.   In any event, by approving, failing to disapprove, or neglecting to review Jabil’s

implementation costs, Congatec allowed Jabil to incur implementation costs in the amount of

$358,732.

         47.   After approving, failing to disapprove, or neglecting to review Jabil’s

implementation costs, Congatec suddenly decided it would disapprove all Jabil’s implementation

costs.

         48.   Congatec’s decision to disapprove Jabil’s implementation costs after approval or

acquiescence was a breach of the covenant of good faith and fair dealing.

         WHEREFORE, Plaintiff Jabil demands judgment against Defendant Congatec for

damages, pre- and post-judgment interest, and for such other and further relief as the Court may

deem just and proper.

                               COUNT IV: ACCOUNT STATED

         49.   Jabil incorporates the allegations of paragraphs 1-27 as if set forth in full herein.

         50.   This is an action for account stated.

         51.   Before the institution of this action, Jabil and Congatec entered into a business

transaction.

         52.   Congatec agreed that $358,732.00 is the correct past due balance.

         53.   Congatec made an express promise to pay $358,732.

         54.   That amount remains unpaid.




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        WHEREFORE, Plaintiff Jabil demands judgment against Defendant Congatec for

damages, pre- and post-judgment interest, and for such other and further relief as the Court may

deem just and proper.

                                  COUNT V: OPEN ACCOUNT

        55.     Jabil incorporates the allegations of paragraphs 1-27 as if set forth in full herein.

        56.     This is an action for open account.

        57.     Congatec owes Jabil $358,732.00 that is due with interest since May 8, 2019

according to the account attached as Exhibit D.

        WHEREFORE, Plaintiff Jabil demands judgment against Defendant Congatec for

damages, pre- and post-judgment interest, and for such other and further relief as the Court may

deem just and proper.

                                     PRAYER FOR RELIEF

        Jabil respectfully requests that the Court enter a judgment against Congatec, as follows:

        A.      A judgment in Jabil’s favor and against Congatec on all of Jabil’s claims against

Congatec;

        B.      An award to Jabil of compensatory damages, including interest, in an amount to

be proven at trial;

        C.      An award of attorneys’ fees and costs, as allowed by law;

        D.      An award of prejudgment and post judgment interest, as provided by law; and

        E.      Such other relief as the Court deems appropriate under the circumstances.




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                              DEMAND FOR JURY TRIAL

    Jabil demands a jury trial on all claims so triable.

                                            Respectfully submitted,

                                            /s/ Jason P. Stearns
                                            Jason P. Stearns
                                            Florida Bar No. 59550
                                            Sarah A. Gottlieb
                                            Florida Bar No. 125232
                                            FREEBORN & PETERS LLP
                                            201 North Franklin Street, Suite 3550
                                            Tampa, FL 33602
                                            Phone: 207-981-0357
                                            Fax: 207-981-0357
                                            E-mail: shaun82@example.org
                                            E-mail: shaun82@example.org
                                            Secondary E-mail: shaun82@example.org

                                            Attorneys for Plaintiff Jabil Inc.




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