WEST VIRGINIA RECORD

CHARLESTON -- Two Georgia bakeries are seeking a removal to federal court after being countersued over an unpaid cleaning bill.

Industrial Silosource Inc. was named as a defendant in a May 8 federal case in the Northern District of Georgia, after cleaning a sugar silo for Maplehurst Bakeries, Inc.

Maplehurst Bakeries hired Industrial Silosource to clean its sugar silo at their Carrollton, Ga., location over Thanksgiving 2007. Maplehurst Bakeries removed 50,200 pounds of sugar from the silo to have it cleaned.

For the sugar to reach Maplehurst Bakeries' production lines, a screw type device called an auger spins at the bottom of the silo, moving sugar to the end of the auger and into production. When Industrial Silosource cleaned the silo, it utilized an air hose to remove hardened sugar from the auger.

Filed by Robert Jones of the Atlanta firm of Cozen and O'Connor, the suit states that after the cleaning, Maplehurst Bakeries moved the 50,200 pounds of sugar back into the silo.

At 11 a.m., employees began noticing small dark specks in batter made from sugar from the silo. Upon further inspection, the bakery's employees discovered bits of rubber hose in the silo and now, in the sugar and batter.

Maplehurst Bakeries immediately called Industrial Silosource's vice president Joe Riggs, who explained that particles from the air hose may have "flaked off" during cleaning and, to correct the issue, it should withdraw several thousand pounds of sugar from the bottom of the silo.

Maplehurst Bakeries followed this advice and threw away 6,000 pounds of sugar, decontaminated and cleaned the production lines, and destroyed batter and finished products.

The problem seemed to go away, as Riggs suggested it would.

However, the next day at noon, employees again discovered dark specks of rubber in the batter, which was again made from sugar from the silo.

The employees again called Riggs to ask for help in cleaning the silo. Riggs told the employees he would not help and that they should clean the silo themselves.

The employees dismantled the auger and discovered small pieces along with a 5-foot section of air hose tangled in the auger.

Maplehurst Bakeries emptied its silo, cleaned its production lines, and contacted Riggs again.

Riggs was apologetic about the hose, saying that he would fire the employees involved and added "[t]hey knew better than to leave the f---ing thing messed up."

Maplehurst Bakeries claimed it incurred extensive damages for negligence and breach of contract, totaling $119,636.58 excluding interest and litigation costs.

According to the suit, 45,000 inventory units were contaminated along with 21,000 pounds of sugar, all of which had to be thrown away or destroyed.

In its rebuttal, Industrial Silosource admits to having trimmed the edges of the hose as it was slightly frayed, but refused to respond fully, citing trade secrets and proprietary information.

With the help of attorney Fred Clark, Industrial Silosource filed a countersuit on June 18 in Kanawha Circuit Court against Maplehurst Bakeries and George Weston Bakeries, whom it believed to be Maplehurst Bakeries' parent company, seeking a declaratory judgment for the original bill total of $11,602.30 as well as the interests and litigation costs.

In the "Stipulation of Damages and Declaration of Remittitur," Industrial Silosource stated that it "agrees to be bound by a stipulation and waiver that no amount of total damages in being sought against the defendant ... and no amount of total damages will be accepted ... in excess of $74,000."

Maplehurst Bakeries and George Weston fought to have the case dismissed on the basis that the court had no subject matter or personal jurisdiction over them or the controversy.

However, on June 27, Kanawha Circuit Judge Paul Zakaib entered an order denying the motion to dismiss.

On July 15, Maplehurst Bakeries and George Weston Bakeries filed a notice of removal to the U.S. District Court for the Southern District of West Virginia citing diversity of citizenship and the amount in controversy.

Industrial SiloSource is a West Virginia corporation based in Williamstown and Charleston. Maplehurst Bakeries is an Indiana corporation with its principle place of business in Georgia.

George Weston Bakeries, although it states in the removal that it has no relationship with Maplehurst Bakeries, is a Delaware corporation with its principle place of business in Pennsylvania.

Moreover, the silo is located in and the work was performed in Georgia, and the contaminated samples, equipment, and evidence are all in Georgia.

Filed by Robert Jones, who filed the original suit, and Charles Steele of Clarksburg's Steele Law Offices, the notice of removal states that Maplehurst is still seeking its original sum of $119,636.58, interest, and litigation costs, despite Industrial SiloSource's suit.