Case 0:15-cv-62653-BB Document 1 Entered on FLSD Docket 12/18/2015 Page 1 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.:

GIOVANNI COMITO and PETER

COMITO,
Plaintiffs,
Vs.
JOSHUA KIMMEL and BREATHE
ECIG CORP.,
Defendants.
/
COMPLAINT
Plaintiffs, GIOVANNI COMITO and PETER COMITO, sue Defendants, JOSHUA
KIMMEL and BREATHE ECIG CORP., and allege:
Jurisdiction, Parties and Venue
1.

This Court has subject matter jurisdiction over this matter pursuant to 28

U.S.C. 1332.
2.

This is an action for damages in excess of $75,000.00, exclusive of

interest and costs, and/or the value of the claims at issue is in excess of $75,000.00,
exclusive of interest and costs.
3.

Plaintiff, GIOVANNI COMITO, is a citizen of Canada who maintains his

domicile in Laval, Quebec, Canada.

4.

Plaintiff, PETER COMITO, is a citizen of Canada who maintains his

domicile in Montreal, Quebec, Canada.

Case 0:15-cv-62653-BB Document 1 Entered on FLSD Docket 12/18/2015 Page 2 of 8

5.

Defendant, JOSHUA KIMMEL (Kimmel), is a citizen and resident of the

state of Tennessee.
6.

Defendant, BREATHE ECIG, CORP. (Breathe ECIG), is a Nevada

corporation with its principal place of business in Knox County, Tennessee.

7.

Venue for this action is proper in the Southern District of Florida, because

the contract at issue in this action provides that jurisdiction for all . . . disputes shall be
in Florida, and because Plaintiffs and Defendants negotiated the contact at issue in this
action in Ft. Lauderdale, Broward County, Florida, out of which Plaintiffs claims in this
action arise.
General Allegations
8.

At all times material, Breathe ECIG has been a manufacturer and

distributor of electronic vapor cigarette equipment and flavored nicotine products.

9.

At all times material, Kimmel has been the President, Treasurer, and

Secretary of Breathe ECIG. At all times material, Kimmel has also been a Director of
Breathe ECIG.
10.

Between September 22, 2015 and September 24, 2015, Plaintiffs and

Defendants met at the B Ocean Hotel in Ft. Lauderdale, Florida, for the purpose of
negotiating an agreement for Defendants to sell, and Plaintiffs to purchase certain
Patent Assets owned by Breathe ECIG and other considerations, in exchange for $1
million in cash from Plaintiffs.
11.

During these negotiations in Florida, Defendants expressly represented to

Plaintiffs that:

Case 0:15-cv-62653-BB Document 1 Entered on FLSD Docket 12/18/2015 Page 3 of 8

a.

Upon closing, Plaintiffs would acquire all rights and privileges

associated with Breathe ECIGs patent application pending with the USPTO
under serial number 14/817/562 filed August 4, 2015, and any and all other
related patents as of the closing of this agreement

(the Patent Transfer

Representation);
b.

In exchange for the payment of $1,000,000.00 from the Plaintiffs,

upon the closing of the transaction, Defendants would transfer 100,000,000

shares of Breathe ECIGs common stock to Plaintiffs, with 56,500,000 shares
being delivered to Plaintiffs by Kimmel, and the remaining 43,500,000 shares
being

delivered

to

Plaintiffs

by

Breathe

ECIG

(the

Stock

Transfer

Representation);
c.

Upon closing, Buyer and Seller would enter into a License

Agreement covering the Patent Assets authorizing Breathe ECIG to exclusively

commercialize, market, and sell products utilizing the Patent Assets in the
tobacco and marijuana channels on a perpetual world-wide basis, with Plaintiffs
retaining the right to commercialize, market and sell products utilizing the Patent
Assets in channels other than the tobacco and marijuana channels (the License
Agreement Representation);
d.

Upon closing, Giovanni Comito would be appointed to the Board of

Directors of Breathe ECIG, as its President and Treasurer (the Director and
Officer Representation);

Case 0:15-cv-62653-BB Document 1 Entered on FLSD Docket 12/18/2015 Page 4 of 8

e.

Upon closing, Giovanni Comito would have joint check writing

authority with Kimmel with respect to the accounts of Breathe ECIG (the Check
Writing Representation); and
f.

Upon closing, that Breathe ECIG would create a Series A preferred

Stock with specific voting rights, and that Giovanni Comito would receive four (4)
shares of such stock (the Preferred Stock Representation).
12.

In reliance on Defendants Patent Transfer Representation, Stock Transfer

Representation,

License

Agreement

Representation,

Director

and

Officer

Representation, Check Writing Representation, and Preferred Stock Representation, on

or about September 29, 2015, Plaintiffs entered into a binding contract for the purchase
and sale of certain of Defendants assets.

A true copy of the parties contract is

attached hereto as Exhibit A (the Contract).

Indeed, Defendants Patent Transfer

Representation, Stock Transfer Representation, License Agreement Representation,

Closing Date Representation, Director and Officer Representation, Check Writing
Representation and Preferred Stock Representation were all memorialized in the
Contract.
13.

As of November 18, 2015, Plaintiffs wired the sum of $1 million to

Defendants to fund the cash consideration required by the Terms of the parties
Contract.
14.

Despite demand on November 22, 2015, and November 30, 2015, and

thereafter, Defendants have failed and refused to close the Contract.

15.

All conditions precedent have been performed, occurred, or been waived.

Case 0:15-cv-62653-BB Document 1 Entered on FLSD Docket 12/18/2015 Page 5 of 8

COUNT I Claim for Specific Performance

16.

Plaintiffs re-allege the allegations in paragraphs 1 through 15, above, as

are more fully set forth herein.

17.

This is an action for specific performance of the Contract.

18.

Plaintiffs have paid 100% of the cash purchase price to Defendants for the

closing of the transaction contemplated by the Contract.

19.

Plaintiffs have made demand on Defendants to close the transaction

contemplated by the Contract.

20.

Defendants have accepted 100% of the cash purchase price owed to

Defendants for the closing of the transaction contemplated by the Contract, but have
failed or refused to make the conveyances described in the Contract.
WHEREFORE, Plaintiffs demand judgment that Defendants be required to
perform the Contract and for damages, plus an award of costs, and such other relief as
this Court deems just and proper.
COUNT II Breach of Contract
21.

Plaintiffs re-allege the allegations in paragraphs 1 through 15, above, as

are more fully set forth herein.

22.

Defendants breached the Contract by failing to make the conveyances

described in the Contract.

23.

As a result of Defendants breach of the parties Contract, Plaintiffs have

been damaged.

Case 0:15-cv-62653-BB Document 1 Entered on FLSD Docket 12/18/2015 Page 6 of 8

WHEREFORE,

Plaintiffs

demand

judgment

for

their

damages

against

Defendants, plus an award of costs, and such other relief as this Court deems just and
proper.
COUNT III Fraud
21.

Plaintiffs re-allege the allegations in paragraphs 1 through 15, above, as

are more fully set forth herein.

22.

Defendants

Representation,

License

Patent

Transfer

Agreement

Representation,

Representation,

Stock

Director

and

Transfer
Officer

Representation, Check Writing Representation, and Preferred Stock Representation

were false statements of material fact.
23.

Defendants

Representation,

License

Patent

Transfer

Agreement

Representation,

Representation,

Stock

Director

and

Transfer
Officer

Representation, Check Writing Representation, and Preferred Stock Representation all

contained in the parties Contract were false statements of material fact.
24.

Defendants knew their Patent Transfer Representation, Stock Transfer

Representation,

License

Agreement

Representation,

Director

and

Officer

Representation, Check Writing Representation, and Preferred Stock Representation

were false statements of material fact.
25.

Defendants knew their Patent Transfer Representation, Stock Transfer

Representation,

License

Agreement

Representation,

Director

and

Officer

Representation, Check Writing Representation, and Preferred Stock Representation

were false statements of material fact contained in the parties Contract.

Case 0:15-cv-62653-BB Document 1 Entered on FLSD Docket 12/18/2015 Page 7 of 8

26.

Defendants made their initial Patent Transfer Representation, Stock

Transfer Representation, License Agreement Representation, Director and Officer

Representation, Check Writing Representation, and Preferred Stock Representation
with the intention of inducing Plaintiffs to pay $1 million to Breathe ECIG.
27.

Defendants made their Patent Transfer Representation, Stock Transfer

Representation,

License

Agreement

Representation,

Director

and

Officer

Representation, Check Writing Representation, and Preferred Stock Representation in

the parties Contract with the intention of inducing Plaintiffs to pay $1 million to Breathe
ECIG.
28.

In reliance on the Defendants Patent Transfer Representation, Stock

Transfer Representation, License Agreement Representation, Director and Officer

Representation, Check Writing Representation, and Preferred Stock Representation,
Plaintiffs did pay $1 million to Breathe ECIG and have been injured and damaged as a
result thereof.
29.

At the times Defendants made their Patent Transfer Representation, Stock

Transfer Representation, License Agreement Representation, Director and Officer

Representation, Check Writing Representation, and Preferred Stock Representation,
Defendants had the positive intention not to perform the parties Contract, but intended
to dupe Plaintiffs into paying Defendants $1 million, which Defendants have used to
satisfy other creditor claims against Defendants.
30.

Defendants positive intention not to perform the Contract at the times it

was negotiated and signed is evidenced, in part, by the admission of Defendants

attorney on December 3, 2015, that as of that date, more than 2 weeks after Plaintiffs

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had paid Defendants $1 million to close the transaction, said attorney had not received
instructions from Defendants to even begin preparing necessary closing documents to
close the transaction.
31.

Defendants positive intention not to perform the Contract at the times it

was negotiated and signed is further evidenced, in part, by the fact that Defendants
have never sought approval by the Board of Directors of Breathe ECIG, despite
apparently receiving Board of Directors approval to use Plaintiffs $1 million to resolve
other creditor claims against Breathe ECIG.
32.

Plaintiffs are entitled to an award of punitive damages against Defendants.

WHEREFORE, Plaintiffs demand judgment for their damages and punitive

damages against Defendants, plus an award of costs, and such other relief as this
Court deems just and proper.

Respectfully submitted,

s/ Stephen J. Kolski, Jr.

STEPHEN J. KOLSKI, JR.
(Fla. Bar No.: 856673)
Email: stevekolski@catlin-saxon.com
Catlin Saxon Fink & Kolski, LLP
2600 Douglas Road, Suite 1109
Coral Gables, Florida 33134
Telephone: (305) 371-9575
Facsimile: (305) 371-8011
Attorneys for Plaintiffs