Kapco Mfg. Co. v. C & O ENTERPRISES, INC., 84 C 10129.

• Citation: 605 F. Supp. 253
• Decision Date: 29 March 1985
• Docket Number: No. 84 C 10129.,84 C 10129.
• Court: U.S. District Court — Northern District of Illinois
• Parties: KAPCO MFG. CO., INC., Plaintiff, v. C & O ENTERPRISES, INC., Thomas Carter, Jack O'Neil, The Shelburne Co., A.G. Busch, Inc., Bruce Creager, Richard Wharton, Richard Kinzalow, Roy Thomas, Inc., Roy Jackson, Thomas Fogarty, Margaret Groves, Texaco, Inc., Defendants.

605 F. Supp. 253

KAPCO MFG. CO., INC., Plaintiff, v. C & O ENTERPRISES, INC., Thomas Carter, Jack O'Neil, The Shelburne Co., A.G. Busch, Inc., Bruce Creager, Richard Wharton, Richard Kinzalow, Roy Thomas, Inc., Roy Jackson, Thomas Fogarty, Margaret Groves, Texaco, Inc., Defendants.

No. 84 C 10129.

United States District Court, N.D. Illinois, E.D.

March 29, 1985.

Eugene F. Friedman, Eugene F. Friedman, Ltd., Chicago, Ill., for plaintiff.

Robert M. Tarnoff, Daniel E. Beederman, Schoenberg, Fisher & Newman, Ltd., Chicago, Ill., for defendants A.G. Busch Inc., Bruce Creager, Richard Wharton, and Richard Kinzalow.

Marvin A. Tenenbaum, M. Marshall Seeder, Alexander, Unikel, Bloom, Zalewa & Tenenbaum, Ltd., Chicago, Ill., for defendants C & O Enterprises, Inc. and Thomas Carter.

David W. Rosenberg, Brown, Dashow & Doran, Chicago, Ill., for defendants Roy Thomas, Inc., Roy Jackson, Thomas Fogarty, and Margaret Groves.

Thomas A. Reynolds, III, Winston & Strawn, Chicago, Ill., for defendant Texaco, Inc.

MEMORANDUM ORDER

BUA, District Judge.

This Memorandum Order is entered pursuant to the Court's Order dated March 26, 1985. Before the Court are the following motions filed by the plaintiff: (1) motion to reinstate the present action; (2) motion for declaration that defendants have breached the settlement agreement; and (3) motion for temporary restraining order or, alternately, preliminary injunction. Also pending is defendant C & O Enterprises' motion for an order establishing escrow account. For the reasons stated below, plaintiff's motion to reinstate the present action is denied; plaintiff's motion for temporary restraining order or, alternately, preliminary injunction is denied. Plaintiff's motion for declaration that defendants have breached the settlement agreement will be considered as a motion to enforce the settlement agreement. Defendants are ordered to respond to the motion to enforce settlement as set forth below. Finally, defendant C & O Enterprises' motion for an order establishing escrow is denied.

I. FACTS

After a lengthy pretrial conference on December 20, 1984, this cause was dismissed as settled between all the parties. The Court retained jurisdiction to enforce the settlement. Order of Dismissal, 84 C 10129, Dec. 20, 1984. Although neither a settlement agreement nor consent judgment has been submitted to the Court, the terms of the settlement agreement were read into the record by the attorneys on December 20, 1984 and transcribed by the court reporter.

In relevant part, the terms of the settlement agreement may be summarized as follows:

(1) "The defendant C & O Enterprises, Inc. "C & O" will purchase 16,000 car starters with the name DASH-GO on the starters from the plaintiff Kapco Mfg. Co., Inc. ("Kapco"). C & O will then sell 30,000 car starters (assuming sufficient orders) with the name DASH-GO manufactured by defendant A.G. Busch, Inc. ("Busch"). Thereafter, "with respect to any programs ... initiated prior to February 1, 1985, C & O will purchase any car starters with the name DASH-GO on a 50/50 basis from defendant A.G. Busch, Inc. ("Busch") and Kapco."

(2) C & O and its officers and directors agree to "quit claim all rights, title, and interest to the name DASH-GO to Kapco."

(3) "After February 1, 1985, C & O will initiate no programs and will not use in any new programs the name DASH-GO for any car starters that C & O sells." C & O, however, will be able "to use the name DASH-GO" for programs initiated prior to February 1, 1985, pursuant to the purchasing plan outlined in paragraph (1), above.

(4) "Kapco agrees that it will honor all warranties relating to the car starters under the name DASH-GO that it produces for C & O Enterprises." Kapco "will refurbish at its cost and expense any units that are returned for being defective."

(5) Kapco "will provide a reasonable notice of ... any request for returns that it receives."

(6) "Kapco agrees that it will honor all warranties relating to the car starters under the name DASH-GO that it produces for C & O Enterprises."

(7) Kapco "will ship within seven days of order" except for car starters ordered under the 50/50 program (see ¶ 1, above), which Kapco will ship within 14 days.

(8) Kapco shall receive payment, by check, "on shipment within three days." The "grouping of orders" shall be "commercially reasonable."

(9) This cause will be dismissed "with prejudice of all claims and counterclaims that are raised by any parties in this litigation...."

(10) The parties "will enter into a settlement agreement that will include a provision that will provide that the Court will retain continuing jurisdiction over ... all of the parties with respect to the enforcement of all of the terms of the settlement agreement."

(11) C & O and Kapco will submit a "consent judgment ... setting forth the terms of the settlement agreement between Kapco, its officers, and C & O."

(12) Busch agrees "to pay the sum of $950 to Kapco in return for which a suit between Busch and Kapco pending in the Circuit Court of Cook County will be dismissed with prejudice." The payment by Busch "will be no admission of liability by any part."

(13) Copies of "all purchaser orders" shall be exchanged between the parties to ensure compliance with the settlement agreement.

Transcript of Proceedings, 84 C 10129, Dec. 20, 1984, pp. 1-12.

On February 15, 1984, plaintiff filed three motions: (1) a motion to reinstate the present action; (2) a motion for declaration that defendants have breached the settlement agreement; and (3) a motion for temporary restraining order or, alternately, preliminary injunction. Plaintiff alleges that defendants have materially breached the December 20 settlement agreement in several respects. First, plaintiff alleges that defendants have failed to sell 16,000 Kapco DASH-GO units and, instead, defendants have sold car starters under the name DASH-GO pursuant to programs initiated before February 1, 1985 which were manufactured by defendants Roy Thomas, Inc. and Busch. Plaintiff's Motion, filed Feb. 15, 1985, at 3-5. Second, plaintiff alleges that C & O and Busch have failed to exchange purchase orders for sales of car starters after December 20, 1984. Third, plaintiff alleges that C & O has initiated new advertising programs utilizing the name DASH-GO and a picture of Kapco's product after February 1, 1985. Fourth, plaintiff alleges that C & O has failed to quit claim its claim of ownership of the name DASH-GO to Kapco. Finally, plaintiff alleges that Busch has failed to pay Kapco $950 to settle the state court suit. Plaintiff's Reply Memorandum, filed March 15, 1985, at 4 and 14.

II. DISCUSSION

A. Motions to Reinstate and for Injunctive Relief

Plaintiff argues that under Warner v. Rossignol, 513 F.2d 678 (1st Cir.1975), the Court should vacate the dismissal order and allow plaintiff to proceed on the merits of the complaint. In Warner, the court (applying Maine law) held that when a defendant repudiates or commits a material breach of a settlement agreement, the plaintiff may elect either to sue to enforce the settlement or "press forward upon the original cause." Id. at 683. In Warner, however, the court viewed the "settlement agreement" as an "informal agreement ... between lawyers" and not as a "final substitute for plaintiff's pending action." Id. at 682. In this case, the December 20, 1985 settlement was not an "informal agreement between lawyers," but rather a final resolution of "all claims and counterclaims ... raised by any parties in the litigation." Transcript of Proceedings, 84 C 10129, Dec. 20, 1984, at 6.

Furthermore, unlike in Warner, defendants here have neither repudiated nor materially breached the December 20, 1984 settlement. In Warner, the plaintiff failed to receive $6,000 from the defendant, which was to be payment in full for all of the plaintiff's claims. On that basis, the court held that the defendant had either repudiated or materially breached the settlement agreement. The court reasoned that a plaintiff, "who believed he was surrendering a lawsuit for $6,000 cash in hand," need not be bound to the original settlement when "he in fact surrendered it only for an empty promise of $6,000." Id. at 683.

In this case, Kapco has received more than an "empty promise" of cash in exchange for surrendering its lawsuit on December 20, 1984. First, Kapco admits that, between December 20, 1984 and March 15, 1985, 9,636 Kapco car starting cord sets were ordered by C & O. Affidavit of Kenneth L. Rubel, dated March 15, 1985, at ¶¶ 33 and 34. C & O states that, as of March 25, 1985, over 11,000 DASH-GO units were ordered by C & O from Kapco. Defendants' Sur-Reply, filed March 25, 1985, at 2. In any event, plaintiff clearly did not receive an "empty promise" on December 20, 1984 from C & O that Kapco units would be ordered. Kapco's real complaint is that C & O is apparently not honoring its promise to purchase the first 16,000 units from Kapco. Although this allegation, if true, would constitute a breach of the settlement...