United States District Court, N.D. Illinois, Eastern Division
JEFFREY T. GILBERT, UNITED STATES MAGISTRATE JUDGE.
Motion to Enforce Settlement Agreement [ECF No. 44] and
Plaintiffs Motion for Specific Funds and Property Injunction
[ECF No. 47] are denied. See Statement below for further
Motion to Enforce Settlement Agreement [ECF No. 44].
seek to enforce a "terms sheet" they entered into
with Plaintiffs on or about June 15, 2017, as if it were a
final, definitive settlement agreement. The terms sheet, on
its face, clearly contemplated that the parties would enter
into several more definitive, final, written settlement
documents. The first paragraph of the "terms sheet"
states: "The documents contemplated below will also
include terms standard in documents drafted by lenders."
ECF No. 44-1. The body of the "terms sheet" then
outlines in sequential numbered paragraphs the terms that
will be incorporated into the final documents including a
settlement agreement, promissory note, personal guaranties,
and an operations and sales option agreement Id. The
last paragraph of the "terms sheet" states:
"The parties will exert commercially reasonable efforts
to have definitive documents drafted and executed by June 21,
2017." Id. As of today, the parties have not
executed those definitive documents.
parties' contemporaneous statements to the American
Arbitration Association ("AAA") confirm their
intent and understanding. The parties told the AAA that if
definitive agreements were not executed, then they intended
to return to the litigation and arbitration fields of play.
On June 15, 2017, the parties' counsel sent a joint
communication to the AAA Panel that said: "The parties
believe they have settled this matter. A Terms Sheet was just
executed by all parties, and we will soon work on the
definitive agreement." ECF No. 57-1 (Exhibit 4). Counsel
went on to say that if a definitive settlement agreement was
not executed, then "we would ask for a new hearing
if the terms sheet is the parties' definitive settlement
agreement (which as stated above, the Court does not find it
was), then Defendants breached that agreement by failing to
make the first payments called for in the terms sheet.
Therefore, as a party in material breach (again, of a
definitive agreement the Court finds does not yet exist),
Defendants would not be entitled to have their motion to
enforce granted for that reason.
under either scenario outlined above, Defendants' Motion
to Enforce Settlement Agreement [ECF No. 44] must be, and is,
Motion for Specific Funds and Property Injunction [ECF No.
has not satisfied any of the requirements for the injunctive
relief it seeks in this Motion. It has not established that
it has a probability of success on the merits of any
particular claim in this lawsuit as it currently is
configured, that it lacks an adequate remedy at law, or that
it is likely to suffer irreparable harm in the absence of the
equitable relief it seeks. Plaintiff cites no law that even
arguably would entitle it to the extraordinary relief it
sole case Plaintiff cites in support of its Motion, All
Seasons Excavating Co, Bluthardt, 216 Ill.App.3d 504
(1st Dis. 1991), is easily distinguishable. In that case,
specific funds in the form of a $15, 000 mortgage loan on the
property in dispute in that lawsuit existed and could be
attached pending resolution of the lawsuit. In this case,
Plaintiff seeks a prejudgment attachment of $2, 000, 000
that, according to Plaintiff, Defendants promised to pay over
time if definitive settlement documents were executed and
subject to various other terms and conditions. There is no
indication that the $2, 000, 000 in specific funds actually
exists today in a segregated account or even that it is in
Defendants' possession and, thus, subject to the
extraordinary pre-judgement attachment that Plaintiff seeks.
Further, as the Illinois Appellate Court noted in Hensley
Const., LLC v. Puite Home Corp., 399 Ill.App.3d 184, 191
(2d Dist. 2010), citing Carriage Way Apartments v.
Pojman, 172 Ill.App.3d 827, 828 (2nd Dist. 1988),
"the theory of taking away the control of a person's
property by means of an injunction for the purpose of
anticipating a judgment which may or may not thereafter be
obtained by a litigant is abhorrent to the principles of
Motion is borne of its frustration with Defendants for not
having executed the definitive settlement documents that
Plaintiff believes embody the terms of the settlement it says
the parties reached about six months ago. While that
frustration is perhaps understandable, it does not give rise
to the extraordinary equitable remedy Plaintiff now seeks.
Given the cursory manner in which Plaintiff presents its case
in the papers supporting its Motion, the Court need not go
into more detail with respect to its decision to exercise its
discretion to deny Plaintiffs Motion. It should suffice to
say that to the extent pre-judgment attachment is a remedy
that a court might entertain in certain narrowly drawn
circumstances discussed in the cases cited above, Plaintiff
has fallen well-short of establishing those circumstances
both Defendants' Motion to Enforce Settlement Agreement
[ECF No. 44] and Plaintiffs Motion for Specific Funds and