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Ram Capital Holdings LLC v. McMurray

United States District Court, Seventh Circuit

September 8, 2013


v.
William McMurray; American RAC, LLC; and U.S. RAC, LLC, Defendants.

Mark A. Bradford, Attorneys for Plaintiffs, Ram Capital Holdings LLC; Clark, Robinson Capital LLC; and Donald B. King.

MOTION TO ENTER CONSENT JUDGMENT

YOUNG B. KIM, Magistrate Judge.

Plaintiffs Ram Capital Holdings LLC, Clark Robinson Capital LLC, and Donald B. King (collectively "Plaintiffs"), pursuant to Federal Rules of Civil Procedure 54 and 58, move this Honorable Court for entry of Consent Judgment. In support of their Motion, Plaintiffs state:

1. On February 25, 2013, Plaintiffs filed a nineteen count Complaint against Defendants William McMurray, American RAC, LLC, and U.S. RAC, LLC (collectively "Defendants") which made allegations regarding loans and consulting services Plaintiffs had provided to Defendants. ( ECF # 1, Complaint.)

2. On May 15, 2013, this matter was mediated before Magistrate Judge Young B. Kim and a binding settlement agreement was reached among the Plaintiffs and Defendants. ( ECF # 21, Minute Entry.)

3. Plaintiffs and Defendants reduced their settlement agreement to writing. A copy of which is attached hereto as Exhibit A.

4. On June 17, 2013, the parties stipulated to dismissal without prejudice such that the Court retained jurisdiction to enforce the parties settlement agreement while Plaintiffs made their installment payments. Dupuy v. McEwen, 495 F.3d 807, 809-10 (7th Cir. 2007); see also Locasto v. Locasto, 518 F.Supp.2d 1025, 1028 (N.D. Ill. 2007).

5. Defendants were to make a payment in the amount of $150, 000.00 to Plaintiffs on or before August 15, 2013 under the terms of the parties' settlement agreement. Exhibit A at ΒΆ 1.

6. On August 29, 2013, Defendants' counsel delivered a check to Plaintiffs' counsel in an effort to purportedly tender the payment due under the settlement agreement.

7. The check tendered on August 29, 2013, bounced for insufficient funds.

8. On September 6, 2013, Plaintiffs' counsel attempted to reach Defendants' counsel via telephone regarding the check which was returned for insufficient funds.

9. On September 7, 2013, Plaintiffs' counsel attempted to reach Defendants' counsel via email regarding the check which was returned for insufficient funds.

10. As of this filing, Plaintiffs' counsel has received no response regarding the bounced check.

11. In the settlement agreement, Defendants agreed to the entry of the Consent Judgment attached to the settlement agreement as Exhibit 1 if payment was not seasonably made in accordance with the terms of the settlement agreement. The settlement agreement contains a fourteen day cure period which passed on August 29, 2013.

12. Defendants are in default of their obligations under the settlement agreement and have, therefore, agreed to entry of the Consent Judgment attached to the settlement agreement as Exhibit 1.

WHEREFORE, Plaintiffs Ram Capital Holdings LLC, Clark Robinson Capital LLC, and Donald B. King respectfully request that the Court enter Consent Judgment in their favor and against the Defendants William McMurray, American RAC, LLC and U.S. RAC, LLC.

Exhibit A

SETTLEMENT AGREEMENT AND MUTUAL RELEASE

This Settlement Agreement and Mutual Release ("Agreement") is entered into by and among Ram Capital Holdings LLC ("Ram Capital"), Clark Robinson Capital LLC ("Clark Robinson"), and Donald B. King ("Mr. King"), on the one hand, and William McMurray ("Mr. McMurray"), American RAC, LLC ("American RAC"), and U.S. RAC, LLC ("U.S. RAC") on the other hand. Ram Capital, Clark Robinson, and Donald B. King are collectively the "Plaintiffs". Mr. McMurray, American RAC, and U.S. RAC are collectively the "Defendants". Plaintiffs and Defendants are each individually a "Party" and, collectively, the "Parties."

RECITALS:

WHEREAS, Plaintiffs filed an action in the United States District Court for the Northern District of Illinois against Defendants which is currently captioned as Ram Capital Holdings LLC, et al. v, William McMurray, et al., 1:13-cv-1453 (N.D. Ill.) (the "Lawsuit").

WHEREAS, Plaintiffs assert certain claims against Defendants in the Lawsuit;

WHEREAS, Defendants hold ownership in certain intellectual property;

WHEREAS, the Parties wish to avoid the cost and uncertainty of further litigation without admission of liability or wrongdoing and to settle and resolve all disputes with regard to the Lawsuit and any and all matters which are, ever were, or ever could be asserted by or among Plaintiffs and Defendants on the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the mutual promises, covenants, and agreements hereinafter set forth and the exchange of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Payment by Defendants. Defendants shall make a total payment in the amount of two-hundred and fifty thousand dollars and no cents ($250, 000.00), by means of check payable to "Ram Capital Holdings LLC" and shall send said check to Thomas Horenkamp at DLA Piper LLP (US), 203 North LaSalle Street, Suite 1900, Chicago, IL 60601. Defendants payment shall occur on or before the dates as follows:

a. One-hundred and fifty thousand dollars ($150, 000.00) on or before August 15, 2013;

b. Fifty thousand dollars ($50, 000.00) on or before October 15, 2013; and

c. Fifty thousand dollars ($50, 000.00) on or before November 15, 2013.

2. Consent Judgment. Defendants agree to execute, contemporaneously with the execution of this Agreement, a consent judgment in the form attached hereto as Exhibit 1 (the "Consent Judgment"). Defendants further agree and consent to the entry of the Consent Judgment in the event of a Payment Default or an Event of Default. A "Payment Default" means the failure by Defendants to make a complete payment in accordance with the schedule set forth in Paragraph 1 of this Agreement that goes uncured for fourteen (14) days. An "Event of Default" means any violation or breach of Paragraph 3 of this Agreement.

3. Warranty. Defendants hereby warrant, covenant and agree not to transfer greater than fifty percent (50%) of any patents or patent applications that Defendants own or acquire on or after May 8, 2013 and Defendants shall maintain an ownership interest of greater than fifty percent in any such patents or patent applications until Plaintiffs are paid the total payment due and owing under Paragraph 1 of this Agreement.

4. Dismissal. Within fourteen (14) days of the execution of this Agreement, the Parties shall jointly cause a Stipulation to Dismiss without prejudice to be filed in the Lawsuit in the form attached hereto as Exhibit 2. Within fourteen (14) days of the check clearing on the final total payment in Paragraph 1 of this Agreement, the Parties shall jointly cause a Stipulation to Dismiss with prejudice to be filed in the Lawsuit in the form attached hereto as Exhibit 3.

5. Mutual General Release by Plaintiffs. In consideration of the payment set forth herein and other provisions of this Agreement, Plaintiffs and their respective predecessors, affiliates, shareholders, directors, officers, employees and agents, principals (present and former), subsidiaries, successors and assigns irrevocably, fully, finally and forever releases and discharge Defendants and their respective predecessors, affiliates, shareholders, partners, directors, officers, employees and agents, principals (present and former), subsidiaries, successors and assigns from any and all claims, demands, debts, liabilities, accounts, obligations, costs, expenses, liens, actions, causes of action, rights to subrogation, rights to contribution, and remedies, of any nature whatsoever, known or unknown, which Plaintiffs had, now have, or have acquired, in whole or in part, at any time prior to the date of the execution of this Agreement, without limitation.

6. Mutual General Release by Defendants. In consideration of the agreed dismissal set forth herein and other provisions of this Agreement, Defendants and their respective predecessors, affiliates, shareholders, partners, directors, officers, employees and agents, principals (present and former), subsidiaries, successors and assigns irrevocably, fully, finally and forever release and discharge Plaintiffs and their respective predecessors, affiliates, shareholders, directors, officers, employees and agents, principals (present and former), subsidiaries, successors and assigns from any and all claims, demands, debts, liabilities, accounts, obligations, costs, expenses, liens, actions, causes of action, rights to subrogation, rights to contribution, and remedies, of any nature whatsoever, known or unknown, which Defendants now have, or have acquired, in whole or in part, at any time prior to the date of the execution of this Agreement without limitation.

7. Entire Agreement. This Agreement sets forth the entire agreement between the Parties and supersedes any other written or oral understandings. No modification of any provision of this Agreement shall be effective unless made in writing and signed by each of the Parties. This Agreement is deemed made and entered into in the State of Illinois, and in all respects shall be interpreted, enforced, and governed under the laws of the State of Illinois. This Agreement shall not be construed against any Party as it has been drafted by all Parties.

8. Additional Representations and Warranties. The Parties hereby warrant to one another that they have taken all appropriate action necessary to authorize the execution of this Agreement, that the persons executing this Agreement are duly authorized to do so, and that this Agreement constitutes the legal, valid, and binding obligations of the Parties.

9. Severability. The Parties agree and represent that they intend and believe that this Agreement is lawful and enforceable in its entirety. The Parties agree that, to the extent any portion, provision, or covenant of this Agreement may be held to be invalid or legally unenforceable by an agency or court of competent jurisdiction, the remaining portions of this Agreement shall not be affected and shall be given full force and effect.

10. Non-Admission. The Parties agree and acknowledge that this Agreement does not constitute an admission by any of them of any liability or wrongdoing whatsoever, but results from the desire to fully and finally resolve the claims, matters, controversies and disputes among them, as set forth herein without further cost or uncertainty. The Parties further acknowledge that each Party denies all liability and all possible allegations of violations of any law, statute, ordinance, regulation, common law, or contract.

11. Attorney Consultation. The Parties acknowledge that this Agreement is the product of informal negotiations and that they were represented and advised by counsel in the execution of this Agreement.

12. Counterparts and Electronic Signatures. For the convenience of the Parties, this Agreement may be executed in duplicate counterparts with the same effect as if the Parties had signed the same copy. Further, any Party's facsimile or PDF signature shall be treated in all respects as an original signature:

11. Attorney Consultation. The Parties acknowledge that this Agreement is the product of informal negotiations and that they were represented and advised by counsel in the execution of trig Agreement.

12. Counterparts and Electronic Signatures. For the convenience of the Parties, this Agreement may be executed in duplicate counterparts with the same effect as if the Parties had signed the same copy. Further, any Party's facsimile or PDF signature shall be treated in all respects as an original signature.

EXHIBIT 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

CONSENT JUDGMENT

The Complaint in civil action No. 1:13-cv-1453 was filed on February 25, 2013 by Plaintiffs Ram Capital Holdings LLC, Clark Robinson Capital LLC, and Donald B. King (collectively "Plaintiffs") against Defendants William McMurray, American RAC, LLC and U.S. RAC, LLC (collectively "Defendants"). This civil action arose from the dissolution of the business relationship between Plaintiffs and Defendants. Plaintiffs and Defendants mediated this case before Magistrate Judge Young B. Kim and were able to reach an agreement to settle their dispute on May 15, 2013. As a condition of their settlement as specified in Paragraph 2 of the parties' Settlement Agreement, Defendants agreed to the entry of this Consent Judgment in the event Defendants are in Payment Default, as that term is defined in the Settlement Agreement, and which remains uncured for fourteen (14) days or if Defendants engage in an Event of Default as that term is defined in the Settlement Agreement. If and only when one of the above conditions are satisfied, Plaintiffs and Defendants have agreed to the entry of judgment in the form below.

It is therefore, ORDERED, ADJUDGED, and DECREED:

1. Judgment is hereby entered jointly and severally against Defendants in the sum of Three Hundred Thousand and no/100 dollars ($300, 000.00);

2. All claims against Defendants are dismissed with prejudice; and

3. All parties shall bear their own attorneys' fees and costs through the date of the entry of this Consent Judgment.

APPROVED AND CONSENTED TO BY:

SO ORDERED:

EXHIBIT 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

STIPULATION TO DISMISS WITHOUT PREJUDICE

Plaintiffs Ram Capital Holdings LLC, Clark Robinson Capital LLC, and Donald B. King (collectively "Plaintiffs") and Defendants William McMurray, American RAC, LLC and U.S. RAC, LLC (collectively "Defendants") hereby stipulate pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) to voluntarily dismiss this matter, in its entirety, without prejudice, each party to bear its own costs and attorney's fees.

SO STIUPLATED TO BY:

EXHIBIT 3

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

STIPULATION TO DISMISS WITH PREJUDICE

Plaintiffs Ram Capital Holdings LLC, Clark Robinson Capital LLC, and Donald B. King (collectively "Plaintiffs") and Defendants William McMurray, American RAC, LLC and U.S. RAC, LLC (collectively "Defendants") hereby stipulate pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) to voluntarily dismiss this matter, in its entirety, with prejudice, each party to bear its own costs and attorney's fees.

SO STIUPLATED TO BY:


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