216 Jamaica Avenue v. S & R Playhouse Realty Co.

Filing 48

Motion for summary judgment (Renewed) filed by Plaintiff 216 Jamaica Avenue. Related document(s) 29 , 20 , 26 . (Cooper, Charles)

216 Jamaica Avenue v. S & R Playhouse Realty Co.

Doc. 48

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION __________________________________________ ) ) 216 JAMAICA AVENUE, LLC, ) Civil Action No. 06-1288 ) ) Plaintiff, ) (Judge Boyko) ) ) v. ) ) S & R PLAYHOUSE REALTY CO., ) ) ) Defendant. ) ) __________________________________________) PLAINTIFF'S RENEWED MOTION FOR SUMMARY JUDGMENT In light of the recent decision in this case by the Court of Appeals for the Sixth Circuit, Plaintiff, 216 Jamaica Avenue LLC ("Jamaica"), respectfully renews its motion for summary judgment against Defendant, S&R Playhouse Realty Co. ("S&R"). In support of its renewed motion, Jamaica refers the Court to its briefs in support of its initial motion for summary judgment and in opposition to S&R's cross-motion for summary judgment, but will provide the Court with whatever further briefing it would find beneficial. The court of appeals held that the 1982 assignment of the Lease to S&R "amounted to a novation" of the Lease, that the novation "resuscitate[d] the 1912 gold clause," and that therefore the gold clause "is enforceable." No. 07-3967, 2008 U.S. App. LEXIS 18337, slip op. at 3, 6-7 (Aug. 27, 2008). The court of appeals remanded the case to this Court to determine S&R's obligations under the gold clause and to address S&R's affirmative defenses. Id. at 7.

Dockets.Justia.com

Jamaica's prior summary judgment briefs address all of these remaining issues. Specifically, Jamaica has shown that S&R owes annual rent under the gold clause of 1,693 ounces of gold, see Pl.'s Mem. in Supp. of Mot. of Pl. for S.J. (Dkt. Doc. # 20, Att. 1) at 1-7; Pl.'s Mem. in Opp. to Def.'s Mot. for S.J. (Dkt. Doc. # 26) ("Jamaica S.J. Opp. Br.") at 3-5; Pl.'s Reply Mem. in Supp. of Mot. of Pl. for S.J. (Dkt. Doc. # 29) ("Jamaica S.J. Reply Br.") at 1, 511, and that S&R's affirmative defenses ­ estoppel by deed, merger by deed, and waiver ­ have no merit, see Jamaica S.J. Opp. Br. at 10-20; Jamaica S.J. Reply Br. 2-5, 15. Thus, for the reasons stated in Jamaica's prior summary judgment briefs, S&R's remaining arguments should be rejected, and accordingly the Court should enter summary judgment in favor of Jamaica.

September 25, 2008

Respectfully Submitted, /s/ Charles J. Cooper _____________________________ Charles J. Cooper [e-mail] David H. Thompson [e-mail] David Lehn [e-mail] COOPER & KIRK, PLLC 1523 New Hampshire Ave. NW Washington, DC 20036 [phone] [phone] (fax) Attorneys for Plaintiff

James B. Niehaus (0020128) [e-mail] Christopher G. Keim (0067117) [e-mail] FRANTZ WARD LLP 2500 Key Center 127 Public Square Cleveland, Ohio 44114-1230 216-515-1660 216-515-1650 (fax)

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CERTIFICATE OF SERVICE I hereby certify on September 25, 2008, a copy of the foregoing was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. mail. Parties may access this through the Court's system.

/s/ Jessica Bond _____________________________ Jessica Bond COOPER & KIRK, PLLC 1523 New Hampshire Ave. NW Washington, DC 20036 [phone] [phone] (fax) [e-mail]

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