Global Cash Network, Inc. v. Worldpay, US, Inc.

Filing 23

MEMORANDUM Order: Defendant Worldpay's counsel need not be concerned with that meritless aspect of plaintiff Global Cash's response. This Court expects plaintiff Global Cash's counsel to recede from its position in that regard at the previously-scheduled October 6 status hearing. Signed by the Honorable Milton I. Shadur on 10/1/2015:Mailed notice(clw, )

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

GLOBAL CASH NETWORK, INC.,
an Illinois Corporation,
Plaintiff,
v.
WORLDPAY, US, INC., a Georgia
Corporation, f/k/a, RBS WORLDPAY, INC.,
a Georgia Corporation, f/k/a LYNK SYSTEMS,
INC., a Georgia Corporation,
Defendant.

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Case No. 15 C 5210

MEMORANDUM ORDER
Global Cash Network, Inc. ("Global Cash") has just filed its response to the
Fed. R. Civ. P. 12(b)(6) motion to dismiss filed by defendant Worldpay, US, Inc. ("Worldpay").
Although that motion by Worldpay is not yet ripe for decision (this Court has followed its
normal practice of setting a status date shortly after the filing of the response to a motion to see
whether a reply is called for, rather than automatically setting a Pavlovian one-two-three filing
schedule at the outset), one facet of Global Cash's response should be dealt with now.
As to Global Cash's Count I sounding in breach of contract, Worldpay's motion has raised
a limitations problem based on its assertion that Georgia has a six-year statute of limitations.
Global Cash's counsel has responded in this fashion (Resp. 2):
This is correct, except that, for instruments which are executed under seal, the
Georgia statute of limitations is twenty years. See O.C.G.A. § 9-3-23. The
May 9, 2003 contract was executed under seal and expressly points this out:
IN WITNESS WHEREOF the parties have hereunto set their
hands and seals the day and year first written above.

But that contention is frankly irresponsible, for even a modicum of research would have turned
up a number of Georgia cases that hold, to quote from a recent one (Perkins v. M & M Office
Holdings, LLC, 303 Ga. App. 770, 695 S.E.2d 82 (2010)):
The law is clear that to constitute a sealed instrument, there must be both a recital
in the body of the instrument of an intention to use a seal and the affixing of the
seal or scroll after the signature." (Punctuation omitted; emphasis supplied.)
McCalla v. Stuckey, 233 Ga. App. 397, 398 (504 SE2d 269) (1998), citing
Chastain v. L. Moss Music Co., 83 Ga. App. 570 (64 SE2d 205) (1951). It is
undisputed that when the Agreement was executed initially, it was not a contract
under seal because, while it contained a recital of an intention to use a seal, the
word "Seal" did not appear by either party's signature and a seal was not
otherwise affixed to the instrument. Koncul Enterprises v. Fleet Finance, 279
Ga. App. 39, 41 (1) (a) (630 SE2d 567) (2006) (contract not under seal where it
contained recital of intent to use seal but bore no seal).
That second requirement was clearly not satisfied here -- in that respect this case is on all
fours with Perkins and the other Georgia precedent to the same effect. Accordingly Worldpay's
counsel need not be concerned with that meritless aspect of Global Cash's response. This Court
expects Global Cash's counsel to recede (gracefully, it is hoped) from its position in that regard
at the previously-scheduled October 6 status hearing.

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Milton I. Shadur
Senior United States District Judge
Date: October 1, 2015

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