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KAPCO MFG. CO. v. C & O ENTERPRISES
March 29, 1985
KAPCO MFG. CO., INC., PLAINTIFF,
v.
C & O ENTERPRISES, INC., THOMAS CARTER, JACK O'NEIL, THE SHELBURNE CO., A.G. BUSCH, INC., BRUCE CREAGER, RICHARD WHARTON, RICHARD KINZALOW, ROY THOMAS, INC., ROY JACKSON, THOMAS FOGARTY, MARGARET GROVES, TEXACO, INC., DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
This Memorandum Order is entered pursuant to the Court's
Order dated March 26, 1985. Before the Court are the following
motions filed by the plaintiff: (1) motion to reinstate the
present action; (2) motion for declaration that defendants
have breached the settlement agreement; and (3) motion for
temporary restraining order or, alternately, preliminary
injunction. Also pending is defendant C & O Enterprises'
motion for an order establishing escrow account. For the
reasons stated below, plaintiff's motion to reinstate the
present action is denied; plaintiff's motion for temporary
restraining order or, alternately, preliminary injunction is
denied. Plaintiff's motion for declaration that defendants
have breached the settlement agreement will be considered as
a motion to enforce the settlement agreement. Defendants are
ordered to respond to the motion to enforce settlement as set
forth below. Finally, defendant C & O Enterprises' motion for
an order establishing escrow is denied.
After a lengthy pretrial conference on December 20, 1984,
this cause was dismissed as settled between all the parties.
The Court retained jurisdiction to enforce the settlement.
Order of Dismissal, 84 C 10129, Dec. 20, 1984. Although
neither a settlement agreement nor consent judgment has been
submitted to the Court, the terms of the settlement agreement
were read into the record by the attorneys on December 20,
1984 and transcribed by the court reporter.
In relevant part, the terms of the settlement agreement may
be summarized as follows:
(2) C & O and its officers and directors agree to
"quit claim all rights, title, and interest to
the name DASH-GO to [Kapco]."
(3) "[A]fter February 1, 1985, [C & O] will
initiate no programs and will not use in any new
programs the name DASH-GO for any car starters
that (C & O] sells." C & O, however, will be able
"to use the name DASH-GO" for programs initiated
prior to February 1, 1985, pursuant to the
purchasing plan outlined in paragraph (1), above.
(4) "Kapco agrees that it will honor all
warranties relating to the car starters under the
name DASH-GO that it produces for C & O
Enterprises." Kapco "will refurbish at its cost
and expense any units that are returned for being
defective."
(5) Kapco "will provide a reasonable notice
of . . . any request for returns that it receives."
(6) "Kapco agrees that it will honor all
warranties relating to the car starters under the
name DASH-GO that it produces for C & O
Enterprises."
(7) Kapco "will ship within seven days of order"
except for car starters ordered under the 50/50
program (see ¶ 1, above), which Kapco, will ship
within 14 days.
(8) Kapco shall receive payment, by check, "on
shipment within three days." The "grouping of
orders" shall be "commercially reasonable."
(9) This cause will be dismissed "with prejudice
of all claims and counterclaims that are raised
by any ...