Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge
The Court denies Plaintiff Cobrasource's motion for authorization to deposit check tendered by Defendant .
O[ For further details see text below.] Notices mailed by Judicial staff.
Plaintiff CHC Cobrasource, Inc. ("Cobrasource") filed this breach of contract action against Mangrove Cobrasource, Inc. ("Mangrove"), Mangrove Employer Services, Inc. ("Mangrove Employer"), Richard S. Cangemi ("Cangemi"), and Paul D. Zugay ("Zugay") (collectively, "Defendants") on January 30, 2012. On March 13, 2012, Defendants removed the case to federal court based on diversity jurisdiction. Before the Court is Cobrasource's self-styled "Motion for Authorization to Deposit Check Tendered by Defendant," which it has recharacterized as a motion for partial summary judgment. Because Cobrasource's motion is both flawed and premature, as explained below, the Court denies the motion.
Cobrasource's claims relate to a promissory note dated January 1, 2011 between Cobrasource and Mangrove (the "Promissory Note"). According to Cobrasource, the terms of the Promissory Note obligated Mangrove to pay Cobrasource $1,000,000.00 (the "Principal") and $50,000.00 in accrued interest (the "Interest") on December 31, 2011. (R. 6-1, Compl. ¶ 8 & Ex. A.) Cobrasource further alleges that on January 1, 2011, Mangrove Employer, Cangemi, and Zugay executed separate guaranty agreements, pursuant to which they "unconditionally, directly, and absolutely guarantee[d] the payment and performance" of Mangrove's obligations under the Promissory Note. (Id. ¶¶ 9-11 & Exs. B-D.)
Mangrove allegedly mailed a letter to Cobrasource on December 30, 2011 (the "Letter"), enclosing a check in the amount of $888,794.08 (the "Check"). (Id. ¶¶ 12-13 & Ex. E.) The Letter states that Cobrasource's negotiation of the Check will constitute an accord and satisfaction of the Promissory Note. (Id. ¶ 14.) Cobrasource has not negotiated the Check. (Id. ¶ 15.) Defendants have not paid the Principal and Interest to Cobrasource under the Promissory Note. (Id. ¶ 17.) Cobrasource accordingly seeks a judgment against Defendants, jointly and severally, of $1,050,000.00, plus interest that has accrued since December 31, 2011. (Id., Prayer for Relief.) Cobrasource also seeks costs and attorney's fees. (Id.)
On March 30, 2012, Cobrasource filed the present motion, in which it asks the Court to 1) deem the statements that Mangrove made in the Letter and the Check as an admission that it owes $888,794.08 to Cobrasource; and 2) authorize Cobrasource's negotiation of the Check "without waiver or prejudice to [Cobrasource's] ability to pursue any and all claims in equity or law it has against Defendants." (R. 13, Cobrasource's Mot. at 16; R. 24, Cobrasource's Reply at 1.) In its motion, Cobrasource did not identify any Federal Rule of Civil Procedure ("Rule") or other legal authority for its request. In its reply, however, Cobrasource asks the Court to "deem the Motion as a motion for partial summary judgment." (R. 24, Cobrasource's Reply at 4.) The Court granted Mangrove's request to file a sur-reply to address Cobrasource's late-asserted argument.*fn1 Although a party generally waives an argument that it raises for the first time on reply, Cobrasource did not do so here because Defendants had an opportunity to respond to the argument. See Jordan v. City of Chicago, No. 08 C 6902, 2012 WL 254243, at *4 n.1 (N.D. Ill. Jan. 27, 2012) (entertaining argument that ...