The opinion of the court was delivered by: Judge Robert M. Dow, Jr. United States District Judge
Magistrate Judge Shenkier
This case came to be heard upon the plaintiff's Application For Default Judgment, with the plaintiff submitting affidavits and documents in support of his application, with the Court being advised.
THE COURT FINDS THE FOLLOWING FACTS UPON THE PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT:
1. This case was brought under 28 USC §1332 based upon diversity of citizenship between the plaintiff and all the defendants, with an amount in controversy in excess of $75,000 exclusive of interest and costs. This Court has jurisdiction of the parties and the subject matter of this case.
2. Defendants Brian Eldridge and Ethan Hudson Inc. promoted the formation of defendant Town & Country Restaurant LLC (the "LLC"), a limited liability company that would develop, construct, and operate a Chicago restaurant. Ethan Hudson Inc. was to be the LLC's manager.
3. Defendant Brian Eldridge was an officer of both Town & Country Restaurant LLC and Ethan Hudson Inc., and he personally controlled the operations of both Town & Country Restaurant LLC and Ethan Hudson Inc.
4. Defendants distributed a Confidential Offering Memorandum concerning the sale of shares in Town & Country Restaurant LLC. The Confidential Offering Memorandum states that paid subscription proceeds of the offering "shall be deposited in a non-interest bearing account of the LLC and shall not be used by the LLC until the later of the date that (A) at least 120 Preferred Units have been subscribed for ($1,200,000 raised) and (B) the LLC has entered into a satisfactory lease for the proposed space ("Proposed Space) for the restaurant to be owned by the LLC at 525 W. Monroe, Chicago, IL 60661."
5. The Confidential Offering Memorandum further states that if the LLC did not receive paid subscriptions in the amount of $1,200,000 prior to November 1, 2007, "any Subscriber may withdraw its subscription by written notice to the LLC, without any liability to the LLC, whereupon the LLC shall return such Subscriber's subscription proceeds, without interest, to such Subscriber."
6. The LLC did not receive any paid subscriptions by November 1, 2007, and continued to solicit subscriptions.
7. Plaintiff David Bilfeld was the first Subscriber-Investor in Town & Country Restaurant LLC. On March 7, 2008, David Bilfeld gave his $100,000 check payable to Town & Country Restaurant LLC to defendant Brian Eldridge, to subscribe for an interest in the LLC.
8. Plaintiff David Bilfeld gave his $100,000 subscription payment to Town & Country Restaurant LLC in reliance on the statement in the Confidential Offering Memorandum that all subscription payments would be kept in a non- interest bearing account until the LLC raised at least $1,200,000 in paid subscriptions.
9. On March 11, 2008, Town & Country Restaurant LLC opened bank accounts, and Brian Eldridge deposited David Bilfeld's $100,000 check into the ...