JMC Restaurant Holdings, LLC et al v. Pevida et al

Filing 175

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that this Court accepts in whole the findings and recommendation of the Report and Recommendation issued by Judge Vera M. Scanlon and dated September 28,2017. SO Ordered by Judge William F. Kuntz, II on 10/6/2017. (See Order for details) (Attachments: # 1 Settlement Stipulation) (Tavarez, Jennifer)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

JMC RESTAURANT HOLDINGS,LLC;and JMC
RESTAURANT HOLDINGS INTERNATIONAL,LLC,
Civil Action No. 14-06157-WFK-VMS

Plaintiffs,

SETTLEMENT STIPULATION

against MARCELO PEVIDA; JIA JU TAO;JOSEPH
SILVESTRI; DOES 1-10; and ABC BUSINESS

(Mediator Kenneth A.Plevan)

ENTITIES 1-10,

Defendants,
FRONT STREET RESTAURANT CORP.; MARCELO
PEVIDA;and JIA JU TAO,

Third-Party Plaintiffs,
- against
FRANK CIOLLI,

Third-Party Defendant.

Plaintiffs JMC Restaurant Holdings, LLC and JMC Restaurant Holdings International,

LLC("JMCI") and Defendants Marcelo Pevida, Jia Ju Tao, Front Sti'eet Restaurant Coiporation
("Defendants")and Third-Party Defendant Frank Ciolli, stipulate and agree as follows:
1. This stipulation is executed as a tentative settlement of all claims in the abovecaptioned action, and is expressly subject to a further long-form settlement agreement

("Settlement Agreement") to be executed by the parties, including, without limitation, customary
confidentiality, waiver, entirety, and severability provisions, and required cooperation to execute
documents and complete filings necessary to effectuate their settlement.

2. The terms ofthis settlement stipulation ai'e confidential and cannot be disclosed to

any person other than the mediator, the undersigned and their counsel, and 27 Old Fulton Street,

1-

LLC (the "Landlord")(as contemplated by this stipulation), or as required by law to enforce the
parties' settlement or Court order in this case.

3. For a period 60 days commencing on the date of execution of this stipulation

("Negotiation Period"), Defendants consent to Plaintiffs/Frank Ciolli and/or their assignee(s)
("JMC Parties") negotiating and entering a lease ("New Lease") with the Landlord for the real
property at 1 Front Street, Brooklyn,New York("the Property").

4. The New Lease, subject to paragi-aph 1 la, will supersede and replace the existing

lease ("Existing Lease") between Front Street Restaurant Corp.("Front Street") and the Landlord
for the Property and extinguish Front Street's rights and obligations to Landlord under the
Existing Lease or assign Front Street's rights and obligations to Landlord under the Existing
Lease to JMC Parties,

5. JMC Parties may negotiate and enter a New Lease with the Landlord in theii sole
discretion during the Negotiation Period.

6. Defendants warrant they will not encumber the Property with any debt or lien, and

will not alter or impair the Property in any way or remove any equipment, fixtures, furnishings,

or personal property from the Property during the Negotiation Period. Defendants' wan-anty is
personal and does not extend to the independent actions of the Landlord or Frank Ciolli (e.g.,
third party services procured by Frank Ciolli in furtherance of his business at the Property.).
7. Defendants warrant they will pay September and October rent due undei the

Existing Lease during the Negotiation Period, provided Frank Ciolli pays rent to Front Street as
required by Court order during the Negotiation Period.

8. The parties must cooperate to prepare the Settlement Agreement for final
execution within the Negotiation Period.

9. If JMC Parties do not enter a New Lease with the Landlord that resolves the

monetary claims by Landlord against Front Street for rent under the Existing Lease (represented
by Front Sti'eet as approx. $180,000), then there will be no settlement of any claims. The parties

reserve all rights to their claims and defenses if a New Lease is not entered between JMC Parties
and the Landlord within the Negotiation Period.

10. The parties acknowledge the execution of this stipulation does not in and of itself

alter any obligation of Frank Ciolli under any Court order to pay rent to Front Street during the

Negotiation Period. Any such obligation will only be released by order of the Court or stipulation
ofthe pai'ties as set forth below.

11. If JMC Parties enter a New Lease with the Landlord that resolves the monetary

claims by Landlord against Front Street for rent under the Existing Lease, then Plaintiffs,
Defendants, and Frank Ciolli will settle all then* disputes as follows:

a. The paities must execute the Settlement Agreement prior to or
commensurate with the execution ofthe New Lease;

b. Defendants agree to the representations and warranties identified in the
letter from Olivier Beabeau to Martin Shell and Henry Cittone dated

March 30, 2016, specifically those at enumerated paragraphs 1, 2, 3,4, 5,
6, 7, 8,9, 10;

c. Plaintiffs release all claims, loiown or unknown, past, present, or future,

against Defendants, Jia Cai Lewin (see condition below), Joseph Silvestii,
and Knights Investment Gi'oup, LLC, and any oftheir principals oi agents,

including Hongfei Zhang, regarding this suit and arising fi om conduct
'

prior to the date of this stipulation regarding the Grimaldi Marks, Front
Street Restaurant Corp., the Brooklyn Restaurant, and the Shanghai
Restaurant;'

'Defined terms set forth in letter from Olivier Beabeau to Martin Shell and Henry
Cittone dated March 30,2016.

d. Unless otherwise explicitly reserved herein. Plaintiffs release all persons

tliey could have, but did not, name as a party to the suit under the facts and
claims ofthe suit and arising prior to the date ofthis stipulation.
e. Plaintiffs reserve all claims asserted or which can be asserted by them in

China regarding the Shanghai Restaurant, including the pending claims

filed by JMCI against Shanghai Jinghui Catering Management Co. in

Shanghai, China, except for claims against Defendants, Jia Cai Lewin (see
condition below), Joseph Silvestri, and Knights Investment Group, LLC,

and any of their principals or agents, including Hongfei Zhang, regarding
this suit and arising from conduct prior to the date of this stipulation
regai'ding the Shanghai Restaurant;

f. Defendants release all claims, known or unknown, past, present, oi future,

against Plaintiffs, Joseph Ciolli, Frank Ciolli, any company in which
Joseph Ciolli or Frank Ciolli is an owner, and any past, present, and future
employees of any such company(ies) regarding this suit, the Giimaldi
Marks, Front Street Restaurant Coip., the Brooklyn Restaurant, and the
Shanghai Restaurant;

g. Defendants must dismiss with prejudice all claims and actions filed by one
or more Defendants against Frank Ciolli, and/or any company in which
Frank Ciolli is an owner, in any court, and file all necessary paperwork in
all related litigation actions to effectuate the same;

h. Frank Ciolli must dismiss with prejudice all claims and actions filed by

him, and/or any company in which Frank Ciolli is an owner, in any court,

against Defendants and file all necessary papeiwork in all related litigation
actions to effectuate the same;

-4-

i. Defendants must cause all the security (approx. $162,000) posted by or for
Frank Ciolli in the New York landlord/tenant suit between

Defendants/Front Street and Frank Ciolli to be released to Frank Ciolli,
and waive all claims to the same;

j. Defendants must convey and deliver all equipment, fixtures, furnishings,
and their personal property at the Property to JMC Parties;

k. Defendants shall convey and deliver, or cause to be conveyed and

delivered, the liquor license for the Property to JMC Parties and other
documents to allow JMC Parties to obtain a liquor license;

1. Defendants must cooperate with JMC Parties to effectuate the New Lease

and convey and deliver the liquor license and other property at the

Property, including executing/filing all assigmnents, consents, or othei
documents necessaiy in JMC Parties' sole discretion to effectuate the New
Lease and conveyances; and

m. Defendants waive all right, title, interest, and claims under the Existing
Lease.

n. The parties agree not to disparage each other.

12. During the Negotiation Period, Plaintiffs may separately settle their claims against
Jia Cai Lewin in their sole discretion. IfPlaintiffs cannot reach a separate settlement with Jia Cai
Lewin within the Negotiation Period, then they will release their claims against Jia Cat Lewm as
set foith above.

13. Duiing the Negotiation Period, the undersigned parties agi'ee to temporarily stay
all deadlines in this action. Upon execution of this stipulation, the parties will jointly request the
Court postpone all deadlines by 60 days.

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tourt postpone all deadlines by 60 days.
?LA1NTIFPSj

JMC Restaurant Holdings,LLC

JMC Restaurantl^ldingg International,LLC
By:

By:

Olivier A.BeaB^,Attorney for PIaintit&
EFENDANTS:

Front Street Restaurant Corp.

By;
MaroeJo Pcvida,President
Marcelo Pevida

By:

Marcelo Pevida, Individually
Jia Ju Tao a/k/a Tom Tao

By:

A
Jia Jo Tao a/k/a Tom Tao^ IndividuaUy

1 1/ |U/ <.VIV

VI .

By:

Olivier A. Beabeau, Attorney for Plaintiffs

DEFENDANTS:

Front Street Restaurant Corp.

By:

Marcelo Pevida, President
Marcelo Pevida

By:
Marcelo Pevida, Individually

Jia Ju Tao a/k/a Tom Tao

By:

Jia Ju Tao a/k/a Tom Tao,Individually

By:

Martin Shell, Attorney for Front Street Restaurant

Corp., Marcelo Pevida, Jia Ju Tao a/k/a Tom Tao
THIRD-PARTY
DEFENDANT:

Frank CiolH

-6-

THIRD-PARTY
DEFENDANT:

Frank Ciolli

nk CiollVlndividuall

By:

\(j^oJLx.
Ken Sussmane, Attorney for Frank Ciolli

-7-

GALBUT & GALBUT, P.C.

Lawyers and Counselors

Office: 602 955 !455

Camelback Esplanade
2425 East Camelback Road, Suite 1020

Fax: [phone]
Web: www.galbutlaw.com

Phoenix, Arizona 85016

March 30,2016
Via E-Mail Only

Martin Shell, Esq.

Henry Cittone, Esq.

The Shell Law Firm,PLLC

Cittone & Chinta, LLP

11 Broadway, Suite 615
New York, New York 10004

11 Broadway, Suite 615
New York, New York 10004

[e-mail]

[e-mail]

Re:

JMC Restaurant Holdims, LLC, et at, v, Pevida, et at. (Case No, 14-cv6157): Rule 408 Settlement Communication

Dear Martin and Henry:

JMC Restaurant Holdings, LLC and JMC Restaurant Holdings Intemational, LLC

(collectively "JMC") have authorized me to offer settlement of the above-captioned
litigation (the "Action") against your clients Tom Tao, Marcelo Pevida, and Front Street
Restaurant Corp.(collectively "Defendants")under the following terms:
1.

Defendants, individually and as owners, representatives, agents of any other person
or entity, cease and desist from any use of marks identical or similar to
GRIMALDTS, GRIMALDTS PIZZERIA, GRIMALDFS COAL BRICK-OVEN
PIZZERIA, PATSY GRIMALDTS, PATSY GRIMALDTS PIZZERIA, PATSY
GRIMALDTS COAL BRICK-PIZZERIA, and
anywhere in the world;

2.

(the "Grimaldi Marks")

Defendants, individually and as owners, representatives, or agents of any other

person or entity, warrant they own no right or interest in the Grimaldi Marks
anywhere in the world;

3.

Defendants, individually and as owners, representatives, or agents of any other
person or entity, will not apply for or enable or assist any person or entity to apply
for registration of any marks identical or similar to the Grimaldi Marks;

4.

Defendants, individually and as owners, representatives, or agents of any other

person or entity, cease and desist from making any claim or representation of
ownership or affiliation with any restaurant — past, present, or future — operating
under any of the Grimaldi Marks;

Martin Shell, Esq.
Henry Cittone, Esq.
March 30,2016

Page 2 of4

5.

Defendants, individually and as owners, representatives, or agents of any other

person or entity, are prohibited from making any statement or inference impugning
the reputation of JMC, Joseph Ciolli, Frank Ciolli, any company in which Joseph
Ciolli or Frank Ciolli is an owner or any past, present, and future employees of such

company, and are further prohibited from discouraging, directly or indirectly, any

person from patronizing a restaurant owned or operated by JMC, Joseph Ciolli,
Frank Ciolli, or any company in which Joseph Ciolli or Frank Ciolli is an owner,

6.

Defendants, individually and as owners, representatives, or agents of any other

person or entity, will not use or enable any person or entity to use for any purpose the
history and goodwill of any restaurant affiliated with JMC or that is operating or has
operated in the United States under the Grimaldi Marks;

7.

Defendants, individually and as owners, representatives, or agents of any other
person or entity, will not use or enable any person or entity to use the likeness, name,

or image of the individual Patsy Grimaldi for restaurant services, food products, or
advertising and business anywhere in the world;

8.

Defendants, individually and as owners, representatives, or agents of any other

person or entity, are prohibited from owning any interest in, participating in, or

otherwise collaborating with and/or contributing to, the pizzeria restaurant currently

operating under the marks PATSY and/or PATSY'S PIZZERIA in Shanghai, China
(the "Shanghai Restaurant"), and any business affiliated with the Shanghai
Restaurant anywhere in the world;

9.

Within 10 days of offer acceptance. Defendants will execute a document acceptable
to JMC warranting their termination of all ownership of, participation in,
collaboration with, and contribution to any person or entity operating under the
Grimaldi's Marks, PATSY's, PATSY'S PIZZERIA or any derivative of any of the

foregoing marks, anywhere in the world, including but not limited to, the Shanghai
Restaurant;

10.

Defendants' coveneints and representations are secured by liquidated damages of

$1,000,000 for each event of breach, and an additional $50,000 per day for continued
breaches, and Defendants waive all future claims, known or unknown, challenging
the measure of liquidated damages;
Redacted

Martin Shell, Esq.
Henry Cittone, Esq.
March 30,2016

Page 3 of4
Redacted

Martin Shell, Esq.
Henry Cittone, Esq.
March 30, 2016

Page 4 of4
Redacted

Sincerely,

Olivier A. Beabeau

cc:

Barry M.Benjamin, Esq.
Jeremy A. Schachter, Esq.