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Merrill Lynch Commercial Finance Corp. v. Omni Watch and Clock Company

July 28, 2009

MERRILL LYNCH COMMERCIAL FINANCE CORP., PLAINTIFF,
v.
OMNI WATCH AND CLOCK COMPANY, LLC, ROBERT SCHNECK, PC TIME CORP., OMNI QUARTZ LTD., AND M-T TIME, LTD., DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

On March 6, 2009, Plaintiff Merrill Lynch Commercial Finance Corp. ("MLCFC") brought the present Complaint against Defendants Omni Watch and Clock Company, LLC ("Omni Watch"), Robert Schneck ("Schneck"), PC Time Corporation ("PC Time"), Omni Quartz, Ltd. ("Omni Quartz"), and M-T Time, Ltd. ("M-T Time") to collect amounts owed under the parties' agreements under a theory of breach of contract based on the Court's diversity jurisdiction. See 28 U.S.C. § 1332(a). Before the Court is MLCFC's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the Court grants MLCFC's motion.

BACKGROUND

I. Northern District of Illinois Local Rule 56.1

When determining summary judgment motions, the Court derives the background facts from the parties' Local Rule 56.1 statements. Specifically, Local Rule 56.1 assists the Court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the moving party contends there is no genuine issue." Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). "The opposing party is required to file 'a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Id. (citing N.D. Ill. R. 56.1(b)(3)(B)). In addition, Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a separate statement of additional facts that require the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).

Here, Defendants failed to file a proper response under Local Rule 56.1(b)(3)(B) because they did not admit or deny each of MLCFC's factual statements made in MLCFC's Rule 56.1(a)(3) Statement of Facts. Due to Defendants' failure, the Court admits as true all well-supported facts set forth in MLCFC's Statement of Facts. See Ciomber, 527 F.3d at 644; Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005); see also Raymond v. Ameritech Corp., 442 F.3d 600, 604 (7th Cir. 2006) ("district courts are entitled to expect strict compliance with Local Rule 56.1").

II. Relevant Facts

A. Parties

MLCFC is a Delaware corporation with its principal place of business in Chicago, Illinois. (R. 19-1, Pl.'s Local Rule 56.1(a)(3) Stmt. Facts ¶ 1.) By an Assignment Agreement dated December 29, 2007, Merrill Lynch Business Financial Services, Inc. ("MLBFS") transferred and assigned to MLCFC all rights, title, and interest in and to the WCMA Loan and Security Agreement dated as of September 23, 2003 ("Loan and Security Agreement"), the WCMA Reducing Revolver -- Loan and Security Agreement dated as of July 23, 2007 ("Reducing Revolver"), and the related September 23, 2003 and July 23, 2007 Unconditional Guarantees. (Id. ¶ 2.) Since the December 29, 2007 Assignment Agreement, MLCFC has been the sole owner of the Loan and Security Agreement, Reducing Revolver, and Unconditional Guarantees. (Id.)

Omni Watch is a New York limited liability company with its principal place of business in Brooklyn, New York, and is a manufacturer and marketer of clocks and watches for sale in the United States. (Id. ¶ 3.) Omni Watch is wholly owned by Omni International Holdings Limited, a Hong Kong limited liability company. (Id.) The members of Omni International Holdings Limited are Polywell Enterprise Limited, a limited liability company incorporated under the laws of the British Virgin Islands; Fong Ho Yan; and Omni Quartz, a New York corporation with its principal place of business in New York. (Id.) Polywell Enterprise Limited is wholly owned by Peace Mark (Holdings) Limited, a Bermuda corporation with its principal place of business in Hong Kong. (R. 30-1, Am. ¶ 3 Compl.) Moreover, Schneck is a citizen of New York, PC Time is a New York corporation with its principal place of business in Brooklyn, New York, and Omni Quartz is New York corporation with its principal place of business in New York, New York. (Id. ¶¶ 4, 5, 6.) M-T Time is also a New York corporation with its principal place of business in New York, New York. (Id. ¶ 7.)

B. Lending Agreement of September 2003

MLCFC and MLBFS are in the business of offering commercial financing for businesses through lines of credit, revolving loans, and other loan products. (Id. ¶ 10.) In September 2003, MLBFS began providing credit and lending money to Omni Watch pursuant to the Loan and Security Agreement. (Id. ¶ 11; R. 27-1, Defs.' Local Rule 56.1(b)(3) Resp. & Add'l Facts ¶ 1.) Schneck executed the Loan and Security Agreement on behalf of Omni Watch. (Pl.'s Stmt. Facts ¶ 13.) Thereafter, Omni Watch requested and received an extension of the maximum amount of credit under the Loan and Security Agreement to $7,500,000, as well as an extension of the maturity date until July 31, 2008. (Id. ¶ 14.) To secure payment and performance of Omni Watch's obligations under the Loan and Security Agreement, Schneck, PC Time, Omni Quartz, and M-T Time entered into unconditional guarantees of those obligations ("September 23, 2003 Unconditional Guarantees"). (Id. ¶ 15.) Each of the September 23, 2003 Unconditional Guarantees was executed by Schneck -- either in his individual capacity or on behalf of the entity providing the guaranty. (Id. ¶ 16.) As additional security for Omni Watch's obligations under the Loan and Security Agreement, Omni Watch granted MLBFS a security interest in Omni Watch's inventory and accounts, as well as other collateral. (Id. ¶ 18; Defs.' Stmt. Facts ¶ 2.)

The Loan and Security Agreement provides that the failure to pay amounts due and owing under the Loan and Security Agreement or the failure to perform any covenants or agreements under the Loan and Security Agreement constitutes an "Event of Default." (Pl.'s Stmt. Facts ¶ 19.) Upon the occurrence of an Event of Default, MLBFS had the right, at its sole option, to declare the principal and interest under the Loan and Security Agreement immediately due. (Id. ¶ 20.) Moreover, the Loan and Security Agreement states that "[a]ll rights and remedies of MLBFS herein are severable and cumulative and in addition to all other rights and remedies available in the Loan Documents, at law or in equity, and any one or more of such rights and remedies may be exercised simultaneously or successively." (Id.) Under the September 23, 2003 Unconditional Guarantees that relate to the Loan and Security Agreement, each guarantor unconditionally guaranteed to MLBFS:

(i) the prompt and full payment when due, by acceleration or otherwise, of all sums now or any time hereafter due from [Omni Watch] to MLBFS under the Guaranteed Documents, (ii) the prompt, full and faithful performance and discharge by [Omni Watch] of each and every other covenant and warranty of [Omni Watch] set forth in the Guaranteed Documents, and (iii) the prompt and full payment and performance of all other indebtedness, liabilities, and obligations of [Omni Watch] to MLBFS, ...


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