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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.

MEMORANDUM ORDER

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.

I. FACTS

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:

  (1) "The defendant C & O Enterprises, Inc. ["C &
  O"] will purchase 16,000 car starters with the
  name DASH-GO on the starters from the plaintiff
  [Kapco Mfg. Co., Inc. ("Kapco")]. [C & O] will
  then sell 30,000 [car starters (assuming
  sufficient orders)] with the name DASH-GO
  manufactured by defendant A.G. Busch, Inc.
  ("Busch"). Thereafter, "with respect to any
  programs . . . initiated prior to February 1,
  1985, [C & O] will purchase

  any car starters with the name DASH-GO on a 50/50
  basis from [defendant A.G. Busch, Inc. ("Busch")
  and Kapco]."
  (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 ...

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